Procedures: Application and Public Notice

(I) Applications. (a) Each Applicant shall submit to the Attorney General an application to enter into a Brown.fields Covenant Not to Sue Agreement on forms prescribed by the Attorney General. (b) Each application shall ipclude a Development Plan that contains, in sufficient detail to allow the Attorney General to conduct an adequate review of the application, a description of the following aspects of the Applicant's proposal: 1. the property that is the subject of the proposed Agreement, described in a clear and concise manner sufficient to identify it to the general public, including a map of the property that is the subject of the proposed Agreement (and, if different, for the Site as a whole); 2. a reference to the most recent deed or certificate of title for the.property that is the subject of the proposed Agreement, including the book and page number at the relevant Registry of Deeds or the Land Court Registration number; 3. the Proposed Remediation Status for the property that is the subject of the proposed Agreement (and, if different, for the Site as a whole), and a description of how such remediation will be achieved, with reference to all known and suspected Releases at the Site, the date that any Releases were reported to the Department of Environmental Protection, and any Release Tracking Number(s) for the Site; 4. the proposed use of the property that is the subject of the proposed Agreement (and, if different, the use of the Site as a whole) after the Proposed Remediation Status has been achieved; 5. how the proposed use of the property that is the subject of the proposed Agreement will contribute to the economic or physical revitalization of the community in which it is located, focusing on how the proposed project will create new, pennanent jobs, result in affordable housing benefits, provide historic preservation, create or revitalize open space, or provide some other public benefit; 6. how the proposed use of the property that is the subject of the proposed Agreement complies or will comply with applicable zoning and land use permitting requirements; 7. the public outreach that has been done to date, the current level of community support for, or opposition to, the Applicant's proposed project (with specific references to all local officials, community groups, and abutters who have been contacted), and plans for any future outreach; 8. the current status of the Applicant's proposed project and a schedule setting forth specific milestones for bringing the project to fruition; and 9. the current status of the funding for the Applicant's proposed project and how full funding of the project will be achieved. ( c) An Applicant shall specify what liability relief he or she is seeking, why that request is justified, and why the liability relief provided directly by statute is not sufficient. ( d) An Applicant who wants to be considered an Eligible Person shall so specify in his or her application and shall include with such application an Eligible Person Certification on a form prescribed by the Attorney General; provided, however, that an Applicant who can demonstrate that he or she first began or will begin his or her ownership or operation at the Site after a Release at such Site was reported to the Department of Environmental Protection need not include such certification, unless so requested by the Attorney General. An Eligible Person Certification is intended to be used solely for deciding under what conditions the Attorney General should enter into Brownfields Covenant Not to Sue Agreements, and neither such a certification nor the Attorney General's use ofit shall be considered evidence of whether a Person is an Eligible Person in any other proceeding. (e) An Applicant who is an Eligible Person and who is proposing a Temporary Solution at the Site or portion of the Site that is the subject of the proposed Agreement shall include with his or her application an opinion issued by a Licensed Site Professional pursuant to 310 CMR 40.0860 stating with particularity the basis on which he or she believes that a Permanent Solution is not Feasible or shall explain when such an opinion will be provided to the Department of Environmental Protection. (f) An Applicant who is an Eligible Person and who is proposing a cleanup plan which may, but will not necessarily, include a Temporary Solution at the Site or portion of the Site that is the subject of the proposed Agreement shall state in the Application that he or she is not able to determine at the time of application whether a Permanent Solution is Feasible, and shall explain, to the degree it is known, when such a determination will be made. 12/12/08 (Effective 10/17/08) - corrected (g) An Applicant who is proposing a Pennanent Solution, Remedy Operation Status, or Temporary Solution, as applicable, for less than the entire Site shall explain why his or her request for a Brownfields Covenant Not to Sue Agreement is nevertheless appropriate. (h) An Applicant should also specify whether he or she is seeking liability protection against claims brought by third parties, claims brought by the Commonwealth, or both. (i) An Applicant shall provide such further information as the Attorney General deems necessary or appropriate in his or her discretion. (2) Public Notice. If an Applicant is seeking protection against third party claims for contribution, Response Action costs or for property damage pursuant to M.G.L. c. 21E or for property damage under the common law, the Applicant shall provide public notice of this intent, and a public comment period shall follow the application. The public comment period for applications by Eligible Persons closes 45 days after the Date of Application. The public comment period for applications by non-Eligible Persons closes 90 days after the Date of Application. The public comment period for applications by multiple parties closes 90 days after the Date of Application if any of the parties is not an Eligible Person. The Applicant shall provide public notice as follows: (a) the Applicant shall complete a Notice of Rights of Affected Third Parties on forms provided by the Attorney General and shall submit a completed form to the Attorney General appended to his or her application. The notice shall include: 1. the Date of Application; 2. the date the notice period closes; 3. identification of the property that is the subject of the proposed Agreement and the Site and Releases at issue; and 4. a summary of the terms of the application; 5. a description of how and where copies of the application inay be obtained; and 6. a statement that any persons who choose to do so may seek to comment on the Application or join the Agreement by contacting the Attorney General in a specified manner. (b) no later than five days after the Date of Application, the Applicant shall provide a copy of the application together with his or her completed Notice of Rights of Affected Third Parties fonn either in hand or by registered mail, return receipt, to: 1. all owners of record in the respective registry of deeds or the appropriate land registration office of the Registry District for the preceding 50 years of all property currently within the Site, except, in the case of Sites with Releases known to have occurred less than 50 years ago, those whose ownership ended before any storage or disposal of Oil or Hazardous Materials that led to the occurrence of any Releases at the Site. If the exception in 940 CMR 23.04(2)(b)l. is used by the Applicant as a basis for not providing notice to a former owner of property within the Site, the Applicant shall, at the time proof of compliance is submitted pursuant to 940 CMR 25.03(2)(e), demonstrate to the Attorney General the basis for reliance on the exception; 2. all Persons who have received a Notice of Responsibility for the Site from the l,)epartment of Environmental Protection pursuant to M.G.L. c. 21E, § 4; 3. any Person who has filed for Downgradient Property Status with respect to the Site pursuant to 310 CMR 40. 0180; 4. all owners of record of land abutting the properties currently within the Site that is the subject of the proposed Agreement; 5. any Person who has notified the Applicant that he or she has a potential claim against the Applicant for contribution, Response Action costs or for property damage pursuant to M.G.L. c. 21E or for property damage under the common law; and 6. any Person who the Applicant has reason to believe has a potential claim against the Applicant for contribution, Response Action costs or for property damage pursuant to M.G.L. c. 21E or for property damage under the common law; ( c) the Applicant shall cause the Notice of Rights of Affected Third Parties to be published in the next available Environmental Monitor after the Date of Application; 12/12/08 (Effective 10/17/08) - corrected ( d) no later than 15 days after the Date of Application, the Applicant shall cause the Notice of Rights of Affected Third Parties to be published in a newspaper published in the municipalities in which the Site lies once per week for two successive weeks. If no newspaper is published in such municipalities, notice may be published in a newspaper with general circulation where the Site is located. A newspaper which by its title page purports to be printed or published in such municipalities, and having a circulation therein, shall be sufficient for the purpose of providing notice by publication pursuant to 940 CMR 23.04(2)(d); and (e) by the end of the public comment period, the Applicant shall provide the Attorney General with proof of compliance with all notice requirements. The proof of compliance shall be considered part of the application.