Decision on Brownfield Agreement

Decision on Brownfield Agreement. A. Decision on Brownfield Agreement (1) The approval of a Brownfield Agreement shall be based on a complete application which MDEQ determines to contain all information required under the Act or these regulations. If MCEQ finds that the proposed Brownfield Agreement complies with the Act and these regulations, the MCEQ, by order, shall approve the proposed Brownfield Agreement. After approval of the Brownfield Agreement, the Executive Director and the Brownfield Party shall execute the Brownfield Agreement. (2) MCEQ may consider an Applicant’s financial resources, technical resources, managerial resources and compliance history in determining whether or not to approve a Brownfield Agreement. (3) Prior to approval of the Brownfield Agreement, MCEQ may require the applicant to demonstrate to the satisfaction of MCEQ that contamination (the source of which is not environmental contamination or activities on or under the Brownfield Property that is the subject of the application but which is contributing or potentially contributing to contamination on or under the Brownfield Property that is the subject of the application) will not migrate onto the Brownfield Property or otherwise compromise the level of remediation of the Brownfield Property required by the Brownfield Agreement. This demonstration may include institutional controls, engineering controls or other preventive measures. In the event information is presented to MCEQ that migration of contamination has occurred or the level of remediation required under the Brownfield Agreement is being compromised, MCEQ may reopen the Brownfield Agreement. (4) MDEQ shall consider all environmental contamination on or under the Brownfield Property that is the subject of the application to be attributed to activities on or under said Property, unless the Brownfield Applicant can demonstrate to the satisfaction of MDEQ that: (a) the source of environmental contamination is off-site and (b) that conditions on or under said Property have not and will not exacerbate or contribute to the contamination. MCEQ may, as it deems appropriate, inspect or require inspections; investigate or require investigations; evaluate or require evaluations; and/or issue orders regarding properties which are a source of contamination on or under the Brownfield Agreement Site. (5) MCEQ may enter into a Brownfield Agreement as proposed by MDEQ or may modify that agreement before entering into it. MCEQ subsequently may modify any Brownfield Agreement by entry of an order. The MCEQ orders issued under this Act shall be reviewable as provided in Section 49-17-41. (6) MCEQ may disapprove a proposed Brownfield Agreement or decline to enter into a Brownfield Agreement by entry of an order. In the order, MCEQ shall state the reasons for disapproval of the agreement or declining to enter into the agreement. B. Filing of Notice of Brownfield Agreement (1) Within fifteen (15) days after the Brownfield Agreement is executed, the Brownfield Party shall file a certified copy of the Brownfield Agreement and a Notice of the Brownfield Agreement Site in the office of the chancery clerk of the county in which the Site is located. The chancery clerk shall record and enter the Notice of the Brownfield Agreement Site and the Brownfield Agreement in the land records in accordance with Section 89-5-33 and collect the fees provided in Section 25-7-9. Any subsequent deed or other instrument conveying an interest in Brownfield Property shall state in the deed or instrument that the property is Brownfield Property and subject to a Brownfield Agreement, unless the notice is canceled under Rule 2.1.8 of these regulations. (2) If the notice has not been canceled under Rule 2.1.8 of these regulations, the seller of Brownfield Property shall disclose in the contract for the purchase of the Brownfield Property that the property is Brownfield Property and subject to a Brownfield Agreement. C. Notice by Brownfield Party of Conveyance of Brownfield Property Until the Executive Director issues a "no further action" letter under Rule 2.1.7.B. of these regulations, the Brownfield Party shall submit written notice to MCEQ at least thirty days prior to any sale, conveyance or other change in surface ownership of any portion of the Brownfield Agreement Site. Approval from MCEQ shall be required for any sale, conveyance or other change in surface ownership of any portion of the Brownfield Agreement Site owned by the Brownfield Party desiring to make the change in ownership, if the new surface owner will be required to or will assume an obligation to perform any obligations under the Brownfield Agreement. In that case, the Brownfield Party and the new surface owner jointly shall provide information satisfactory to MCEQ that the new surface owner has the financial, managerial and technical resources to complete performance of the Brownfield Agreement obligations to be transferred and that the new surface owner agrees to complete this performance. The new surface owner shall also submit a statement to MDEQ on a form prescribed by MDEQ which sets forth the requirements of the Brownfield Agreement for which it accepts responsibility. The Brownfield Party shall remain responsible for the payment of all reasonable direct and indirect costs of MDEQ associated with administration of the Brownfield Agreement until MDEQ receives a form from the new surface owner by which the new surface owner accepts responsibility for the payment of such costs. If MCEQ determines that the new surface owner has the necessary financial, managerial and technical resources, and an appropriate compliance history, to complete the performance of the Brownfield Agreement and that the new owner has agreed to do so, the MCEQ shall issue an order approving the transfer. D. Prospective Purchaser Notice The Brownfield Party shall provide written notice of the Brownfield Agreement Site’s status as Brownfield Property to any prospective purchaser of any interest in the Brownfield Agreement Site. E. Executive Director Authority Except for orders issued under Rule 2.1.5.A(2), 2.1.5.A(3) and Rule 2.1.10.B(3) of these regulations, MCEQ, under any conditions it may prescribe, may authorize the Executive Director to issue any orders required under this Act. A decision by the Executive Director shall be a decision of MCEQ and shall be reviewable as provided under Section 49-17-41.