Transcript Liability Protection and Re

Liability Protection and
Re-openers
Presented by: Betty Ruth Fox
MDEQ Legal Division
What is Liability Protection ?
• A Brownfield Party who executes a Brownfield
Agreement shall be relieved of liability to all
persons other than the United States for:
– remediation of the Brownfield Agreement Site other
than the remediation required by the Brownfield
Agreement; and
– all costs reasonably related to the remediation other
than the remediation costs required by the Brownfield
Agreement or the regulations.
Now in Layman’s Terms
• Once you have carried out the provisions of the
Brownfield Agreement at your Site, neither
MDEQ nor any other person (except the United
States) can require you to expend additional
remediation costs at your site unless the
Brownfield Agreement is reopened or liability
protection is removed.
What are remediation costs?
• Remediation costs are costs expended to
cleanup, mitigate, correct, abate, minimize,
eliminate, control, treat, remove, or to
implement institutional and/or engineering
controls in order to prevent the spreading,
migration, leaking, leaching, volatilization,
spilling, transport, exposure, or further
release of a contaminant to the environment.
What are “costs reasonably
related to remediation”?
• Costs associated with:
– Consulting
• Engineering
• Geological
– Investigation/Historical Review
– Sampling/Analytical
– Legal
What are the re-openers?
• REOPENERS INCLUDE:
– False information or failure to disclose;
– New information regarding unknown contaminants;
– Level of risk to public health and the environment is
increased beyond the level of risk upon which the
Brownfield Agreement is based. Examples include
an increase in the probability of exposure to
contaminants resulting from a change in land-use or
a failure of remediation to adequately mitigate risks;
What are the re-openers?
• REOPENERS INCLUDE (CONTINUED):
– MDEQ receives new information after execution of
the Brownfield Agreement about a contaminant on
the site that inceases the risk to public health or the
environment; and
– Failure to file a timely and proper Notice of
Brownfield Agreement Site
Removal of Liability Protection
• The Commission may remove liability
protection:
– If a Brownfield Party fails to comply with an order
which requires it to correct a violation of the
Brownfield Agreement in the time period set by the
order.
– If a Brownfield Party provides false information to
the Commission or MDEQ during the application
process or in reports.
Who’s eligible for
Liability Protection ?
• The Brownfield Applicant;
• Any person under the direction or control of the Brownfield
Party who directs or contracts for remediation or
redevelopment of the Site;
• Any current or future owner of the Site;
• Any person who develops, redevelops or lawfully occupies
the Site ;
• Any successor or assign of any person to whom liability
protection applies;
• Any lender or fiduciary that provides financing for
remediation or redevelopment of the Site.
When does liability protection
become effective?
• Liability protection becomes effective upon
execution of a brownfield agreement.
• Liability protection remains in effect unless
the commission removes the protection.
What is not covered by liability
protection?
• Rights of any person to seek relief against
any party to the Brownfield Agreement who
may have liability with respect to the
Brownfield Agreement, except as provided
in the Brownfields law and regulations.
Rights Not Affected By
Liability Protection
• Examples:
– Diminution in property value;
– Personal injury claims;
– Remediation costs for property not included in the
brownfield agreement site;
– Nuisance;
– Trepass;
– Actions to cleanup property other than the brownfield
agreement site.
What about the United States?
• MDEQ has begun working on a
Memorandum of Agreement (MOA) to
present to EPA for approval.
• The intent of the MOA will be to extend
liability protection to also include protection
from the United States (i.e., EPA).
What exposure does a person have who
performs an environmental assessment?
• A person who performs an environmental
assessment and who is not otherwise a
potentially responsible party (PRP) shall not
become a PRP as a result of conducting the
assessment, unless that person increases the
risk of harm to public health or the
environment by failing to exercise due
diligence and reasonable care.
More Information
• Internet Address:
– http://www.welcome.to/brownfields
• MDEQ Legal Contacts:
– Betty Ruth Fox - MDEQ Legal Division
• (601) 961-5573
• email: [email protected]
– Kelly Riley - MDEQ Legal Division
• (601) 961-5171