HB378ENROLLED
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CVB4JW-3
By Representative Brown
RFD: Economic Development and Tourism
First Read: 25-Apr-23
2023 Regular Session
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Enrolled, An Act,
Relating to environmental protection; to amend Sections
22-30E-2, 22-30E-3, 22-30E-4, 22-30E-5, 22-30E-9, and 35-19-4,
Code of Alabama 1975, to provide potentially responsible
parties with limitations of liability with respect to a
brownfield site; to create the Brownfield Remediation Reserve
Fund; to add Sections 22-30E-14, 22-30E-15, and 22-30E-16 to
the Code of Alabama 1975, to provide for the creation of
brownfield redevelopment districts; and to make
nonsubstantive, technical revisions to update the existing
code language to current style
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. Sections 22-30E-2, 22-30E-3, 22-30E-4,
22-30E-5, 22-30E-9, and 35-19-4, Code of Alabama 1975, are
amended to read as follows:
"§22-30E-2
(a) The Legislature finds that rural and urban property
properties in Alabama may have areas of with actual or
perceived contamination at levels that may not be subject to
assessment or cleanup under applicable laws and regulations.
The Legislature finds that this perception of contamination
discourages the purchase and productive use of otherwise
usable properties. The Legislature further finds that the
voluntary assessment and /or cleanup of such properties is in
the public interest.
(b) The Legislature finds that industries and
developers often give preference to previously unused
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greenfield sites are often selected for development over
previously used property due largely to concerns over the
financial and environmental liabilities which may be incurred
in acquiring such previously used property for reuse and
redevelopment. The Legislature further finds that the
appropriate reuse and redevelopment of properties which are
contaminated, or perceived to be contaminated, is in the
public interest.
(c) The Legislature finds that the reuse of previously
utilized property is an important component of a sound land
use policy that will help to preserve heretofore undeveloped
farmland, open space areas, and natural areas; and reduce
public costs for installing new water, sewer, and other
utilities and highway infrastructure.
(d) The Legislature finds that it is necessary to pass
legislation that provides a mechanism to implement a cleanup
program which encourages applicants to voluntarily assess,
cleanup, remediate, and provide for the productive reuse of
such properties. The Legislature further finds that such a
cleanup program will increase the overall acreage and
inventory of potential properties for redevelopment that would
otherwise remain unavailable while also providing sources of
revenue for payment of additional cleanup costs which may
arise after remediation , while not relieving . This finding
shall not be interpreted to relieve a "responsible person ," as
defined by Section 22-30E-3, from any liability for
administrative, civil, or criminal fines or penalties
otherwise authorized by law and imposed as a result of illegal
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disposal of waste or for pollution of the land, air, or waters
of the state in violation of established laws and regulations
on an identified property.
(e) Therefore, the Legislature hereby establishes a
program, to be implemented, maintained, and administered by
the Alabama Department of Environmental Management, to
encourage the voluntary cleanup and the reuse and
redevelopment of such properties."
"§22-30E-3
Unless otherwise defined in this chapter, the
definition of all terms included in Section 22-30-3 shall be
applicable to this chapter. Other definitions as necessary may
be promulgated adopted as rules and regulations by the
department for further implementation of this chapter. Also,
as used in this chapter, the following words and terms have
the following meanings:
(1) ALABAMA LAND RECYCLING AND ECONOMIC REDEVELOPMENT
COMMISSION. That commission which is created in Section
22-30E-12.
(2)(1) APPLICANT. An owner or operator or prospective
purchaser of a qualifying property seeking to participate in
the voluntary cleanup program established pursuant to this
chapter.
(2) BROWNFIELD REMEDIATION RESERVE FUND. The account or
fund authorized by Section 22-30E-5.
(3) BROWNFIELD REMEDIATION RESERVE FUND CONTRIBUTION.
An amount provided to the department by a responsible person
applicant pursuant to Section 22-30E-5 for deposit into and to
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be used for the purposes of the Brownfield Remediation Reserve
Fund.
(3)(4) CERTIFICATE OF COMPLIANCE. A statement prepared
by a professional engineer or geologist licensed to practice
in the State of Alabama which certifies compliance with a
voluntary cleanup plan required by Section 22-30E-9.
(4)(5) CLEANUP. For purposes of this chapter, cleanup
means the The cleaning up, remediation, control, or removal of
contaminants from the environment in accordance with an
approved voluntary cleanup plan.
(5)(6) COMMISSION. The Environmental Management
Commission as defined in subdivision (4) of Section 22-22A-3 ,
unless the context clearly indicates a reference to the
Alabama Land Recycling and Economic Redevelopment Commission .
(6)(7) DEPARTMENT. The Alabama Department of
Environmental Management.
(7)(8) ENVIRONMENT. The term includes the following, as
defined by the federal Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C., Section § 9601, et
seq.:
a. The navigable waters, the waters of the contiguous
zone, and the ocean waters of which the natural resources are
under the exclusive management authority of the United States
under the Magnuson Fishery Conservation and Management Act.
b. Any other surface water, ground water, drinking
water supply, land surface or subsurface strata, or ambient
air within the State of Alabama or under the jurisdiction of
the State of Alabama.
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(8)(9) FACILITY. The term is synonymous with
"property."
(9)(10) HAZARDOUS SUBSTANCE. Any substance listed on
the List of Hazardous Substances and Reportable Quantities,
codified as 40 C.F.R., Part 302, Table 302.4, in force and
effect on May 21, 2001, and subsequent revisions thereof, or
any substance listed on the List of Extremely Hazardous
Substances and Their Threshold Planning Quantities, codified
as 40 C.F.R., Part 355, Appendix A, in force and effect on May
21, 2001, and subsequent revisions thereof.
(10)(11) HAZARDOUS WASTE TREATMENT, STORAGE, OR
DISPOSAL FACILITY. Any property or facility which is intended
or used for the treatment, storage, or disposal of hazardous
waste subject to the permit requirements of Section 22-30-12.
(11)(12) LAND USE CONTROLS. Any restriction or control,
which serves to protect human health and/or the environment,
that limits use of and/or exposure to any portion of a
property, including water resources.
(13) LETTER OF CONCURRENCE WITH CONDITIONS. A letter
issued by the department to an applicant upon the department's
concurrence with the certificate of compliance that pertains
to the response action and contains a legal description.
(12)(14) OWNER or OPERATOR.
a. The term includes the following:
1. In the case of a facility, any person owning who is
the owner or operating operator of such the facility.
2. Any person who owned, operated, or otherwise
controlled activities at a facility immediately prior to title
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or control of the facility being conveyed due to bankruptcy,
foreclosure, tax delinquency, abandonment, or similar means to
a unit of state or local government.
b. The term does not include a person who can show
evidence of ownership or a deed in lieu of foreclosure
primarily to protect that person's security interest in the
facility or who acts in good faith solely in a fiduciary
capacity and who did not actively participate in the
management, disposal, or release of hazardous wastes,
hazardous constituents, or hazardous substances from the
facility.
c. The term does not include a unit of state or local
government which acquired ownership or control involuntarily
through bankruptcy, tax delinquency, abandonment, or other
circumstances in which the government involuntarily acquires
title by virtue of its function as sovereign. However, this
exclusion shall not apply to any state or local government
which has caused or contributed to the release of hazardous
waste, hazardous constituents, or hazardous substances from
the facility.
(15) PERSON. Any individual, corporation, general or
limited partnership, limited liability company or partnership,
joint venture, association, trust, unincorporated
organization, or governmental authority.
(16) POST-REMEDIATION COSTS. Includes all costs to
which all of the following apply:
a. Are incurred after issuance of the Letter of
Concurrence with Conditions for, or with respect to, the
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investigation, assessment, cleanup, remediation, control, or
removal of contaminants resultant from, in whole or part, a
preexisting release at the qualifying property that were
identified and addressed in reports, assessments, or plans
approved by the department to demonstrate compliance with the
risk reduction standards from the qualifying property.
b. Are not incurred as a result of noncompliance with
the applicable response action or land use controls within the
environmental covenant by the applicant.
(13)(17) PREEXISTING RELEASE. A release , as that term
is defined in this section, which occurred prior to an
applicant's application for a limitation of liability pursuant
to Section 22-30E-9.
(14)(18) PROPERTY. The term is synonymous with
"facility" and includes the following:
a. Any land, building, structure, installation,
equipment, pipe or pipeline, sewer or publicly owned treatment
works, pipe into a sewer or publicly owned treatment works,
well, pit, pond, lagoon, impoundment, ditch, landfill, or
storage container.
b. Any site or area where a hazardous waste, hazardous
constituent, hazardous substance, or petroleum product has
been deposited, stored, disposed of, placed, or has otherwise
come to be located.
(15)(19) PROSPECTIVE PURCHASER. A person who intends to
purchase a qualifying property.
(16)(20) QUALIFYING PROPERTY. A property which meets
the criteria of Section 22-30E-6.
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(17)(21) RELEASE. Any intentional or unintentional act
or omission resulting in the spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, or disposing into the environment,
including, without limitation, the abandonment or discarding
of barrels, containers, and other closed receptacles, of any
hazardous waste, hazardous constituent, petroleum products, or
hazardous substance.
(18)(22) REMEDIATION. This term is synonymous with
"cleanup."
(23) REMEDIATION COSTS. Includes all costs incurred
for, or in relation to, the investigation or cleanup of,
equitable relief relating to, or damages resultant from, in
whole or in part, either of the following:
a. A preexisting release at a qualifying property,
including any liability to the state or any other person for
the cleanup of the property under Chapters 22, 27, 30, 30A,
and 35.
b. A new release of a substance, constituent, or
material which had been a part of a preexisting release at the
property, unless the new release results from noncompliance
with an approved voluntary property assessment plan or
voluntary cleanup plan or from the negligent, wanton, willful,
or intentional conduct of the applicant.
(19)(24) RESPONSE ACTION. Those actions taken in the
event of a release or threatened release of a hazardous waste,
hazardous constituent, petroleum product, or hazardous
substance into the environment to remove, or to prevent, or
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minimize the release of hazardous waste, hazardous
constituents, petroleum products, or hazardous substances so
that they do not pose a threat to public health or the
environment.
(20)(25) RESPONSIBLE PERSON. This term generally means
Except as otherwise provided, any person who has contributed
or is contributing to a release of any hazardous waste,
hazardous constituent, or hazardous substance at a property.
This term specifically includes those persons described in
Sections 107(a)(1) through 107(a)(4) of the federal
Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C., § 9601, et seq. This term
specifically excludes a responsible person applicant for those
matters addressed in the assessment plan and those persons
described in Section 107(b) of the federal Comprehensive
Environmental Response, Compensation, and Liability Act, 42
U.S.C., §9601, et seq.
(26) RESPONSIBLE PERSON APPLICANT. Any owner or
operator who makes application and submits an assessment plan
for a qualifying property into the voluntary cleanup program
and who has been accepted by and whose assessment plan has
been approved by the department.
(21)(27) RISK ASSESSMENT. A written site specific
evaluation of the risks to human health and the environment
posed by conditions at a site.
(22)(28) VOLUNTARY CLEANUP PLAN. A voluntary cleanup
plan approved under Section 22-30E-9.
(23)(29) VOLUNTARY CLEANUP PROPERTIES INVENTORY. The
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Voluntary Cleanup Properties Inventory compiled and updated by
the department pursuant to Section 22-30E-11.
(24)(30) VOLUNTARY PROPERTY ASSESSMENT PLAN. A
voluntary property assessment plan approved under Section
22-30E-9."
"§22-30E-4
(a) The department, acting through the commission, may
adopt, promulgate, modify, amend, and repeal rules and
regulations to implement and enforce this chapter as necessary
to provide for the voluntary assessment, cleanup, reuse, and
redevelopment of qualifying properties. All rules and
regulations established pursuant to this chapter shall comply
with applicable provisions of the Alabama Administrative
Procedure Act, Section 41-22-11.
(b) The department's rules and regulations shall
include, at a minimum, the following:
(1) Rules and regulations establishing cleanup
standards.
(2) Rules and regulations governing procedures for
placement of properties on and removal of properties from the
Voluntary Cleanup Properties Inventory required under the
provisions of Section 22-30E-11.
(3) Rules and regulations governing procedures for the
filing in the deed records of the probate courts of
appropriate notice upon approval of a certificate of
compliance.
(4) Rules and regulations governing the maintenance and
retention of records pertaining to activities carried out
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under this chapter.
(5) Rules and regulations providing for public notice
and participation and for meaningful community involvement in
the voluntary cleanup program.
(6) Rules and regulations for establishing the criteria
for conducting a voluntary assessment plan.
(7) Rules and regulations for establishing the criteria
for a responsible person applicant to participate in the
voluntary cleanup program and to be eligible for the
limitations of liability provided in this chapter.
(8) Rules and regulations with respect to the terms,
provisions, contributions, custody, and application of the
Brownfield Remediation Reserve Fund.
(9) Rules and regulations addressing the reporting of
preexisting contamination or a preexisting release detected
during the course of due diligence or site assessment
activities to the department, provided that any
release-reporting obligations shall be co-extensive with
federal release-reporting obligations.
(7)(10) Rules and regulations governing the issuance of
variances to the criteria for property qualification for the
voluntary cleanup program pursuant to subsection (b) of
Section 22-30E-6 (b), and to the criteria for applicant
participation in the voluntary cleanup program pursuant to
subsection (b) of Section 22-30E-7 (b).
(c)(1) For purposes of subsection (b)(10), the
a. The department may grant a variance from the
eligibility requirements contained in subsection (a) of
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Section 22-30E-6 (a), and/or subsection (a) of Section
22-30E-7(a), or both, only if the department finds that such
the requirements would render a property ineligible for
cleanup under this chapter, that no other qualified party has
applied to participate in the voluntary cleanup program at the
subject property, and that:
1. Such ineligibility a. Ineligibility would result in
the continuation of a condition which does that poses or could
pose a threat to human health and/or the environment.
2.b. Compliance with an eligibility requirement will
not provide for a cost-effective response and the proposed
voluntary cleanup plan will attain cleanup standards that are
equivalent to those required under any otherwise applicable
requirement through the use of a department approved method or
approach.
3.c. In the case of an abandoned site, the department
would otherwise be required to perform the necessary cleanup
using funds from the Alabama Hazardous Substance Cleanup Fund,
as described in Section 22-30A-3, and the department would be
unable to recover the cost of the cleanup as provided in
Chapter 30A of this title.
4.d. In the case of a facility subject to the
permitting, closure, postclosure, and/or corrective action
requirements of Sections 22-30-12 and 22-30-16, the cleanup
will be conducted in a manner consistent with the requirements
of any applicable regulations and permits issued thereunder.
Participation in the voluntary cleanup program may be used to
speed up required investigation and cleanup at such sites, but
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shall not serve to limit the applicability or enforcement of
any applicable requirements at such facilities.
(2) The department may place such conditions upon the
grant of a variance as it deems appropriate including, without
limitation, a provision relating to the time in which all or a
portion of the cleanup must be completed, and if the applicant
fails to comply with such the conditions the department may
modify or withdraw such the variance, with such the withdrawal
subject to the department's administrative appeals process.
b.(3) The department shall not grant any variance from
the criteria for qualification for limitation of liability, as
contained in Section 22-30E-8.
(c)(d) In establishing cleanup standards pursuant to
subdivision (1) of subsection (b) of this section:
(1) The department shall consider impacts to human
health and the environment. In establishing cleanup standards,
cleanup levels may be based on specific requirements of
relevant environmental laws or regulations (e.g., Clean Water
Act, Clean Air Act, TSCA, RCRA, CERCLA), derived using the
procedures outlined in Section 300.430(e)(2) of the National
Oil and Hazardous Substances Pollution Contingency Plan (40
C.F.R. Part 300), and/or based upon the results of a
site-specific risk assessment.
(2) The department may set cleanup levels for all
hazardous constituents, a subset of hazardous wastes, or for
those hazardous constituents that the department has reason to
believe may have been released at the property.
(3) The department may set cleanup levels which that
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reflect current and future use scenarios for the property as
follows:
a. A site shall be deemed to have met the requirements
for unrestricted use if the cleanup levels are derived in a
manner consistent with department or Environmental Protection
Agency guidelines for assessing human and environmental health
risks from hazardous constituents.
b. For sites that do not achieve the unrestricted use
classification, restrictions on site use may be applied to
achieve cleanup standards. Restrictions shall include, but not
be limited to, land use controls. The restrictions imposed
upon a site shall be media-specific and may vary according to
site-specific conditions."
"§22-30E-5
(a) In addition to the powers and duties specified in
this chapter and in Sections 22-22A-1 to 22-22A-16, inclusive
Chapter 22A of Title 22 , the department shall have and may
exercise the following powers and duties:
(1) To establish and collect fees from applicants for
participation in the voluntary cleanup program authorized by
this chapter, to be utilized for the administration of this
chapter.
(2) To deposit all Brownfield Remediation Reserve Fund
contributions into the Brownfield Remediation Reserve Fund
solely for the administration and purpose of this chapter as
further provided in subsection (d).
(2)(3) To make determinations, in accordance with
procedures and criteria enumerated in this chapter and rules
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and regulations promulgated adopted pursuant to this chapter,
as to whether a proposed voluntary cleanup plan is sufficient
to bring the qualifying property into compliance with the
cleanup standards.
(3)(4) To monitor actions taken under approved
voluntary property assessment plans and voluntary cleanup
plans for the purpose of determining whether an applicant
remains eligible for limitation of liability and for the
purpose of determining whether to concur in a certificate of
compliance.
(4)(5) To approve voluntary property assessment plans.
(5)(6) To approve voluntary cleanup plans.
(6)(7) To concur with certifications of compliance.
(7)(8) To seek and to receive federal, state, and
local,legislative appropriations, or other funds, grants,
delegations, materials, and services applicable for the
programs and activities described herein in this section .
(9) To establish a separate, segregated account or fund
designated the Brownfield Remediation Reserve Fund.
(10) To deposit in the Brownfield Remediation Reserve
Fund all amounts received by the department from Brownfield
Remediation Reserve Fund contributions.
(11) To invest the amounts in the Brownfield
Remediation Reserve Fund as provided by law for state funds
and in a manner consistent with the purposes of the fund.
(12) To apply and use the amounts in the Brownfield
Remediation Reserve Fund, in the determination of the
department, provided the amount does not exceed four million
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dollars ($4,000,000) per property, to pay the post-remediation
costs with respect to any property in the state which was
cleaned up or remediated in accordance with the provisions of
this act after December 31, 2023, for which there is no
responsible person, or in instances where the established risk
reduction standards upon which a cleanup or remediation was
previously conducted have changed, without regard to whether
the amounts in the Brownfield Remediation Reserve Fund to be
used for the property were derived from, or in respect of, the
property. The Brownfield Remediation Reserve Fund may not be
used to pay or reimburse any costs incurred as a result of
noncompliance with the applicable response action or land use
controls within an environmental covenant.
(b) The powers and duties described in subsection (a)
may be exercised and performed by the department through such
duly authorized agents and employees as the director deems
necessary and proper.
(c) The obligations of the department for the
application of amounts in the Brownfield Remediation Reserve
Fund as provided in this chapter shall not constitute a work
of internal improvement, a loan of money, or an extension of
credit by the state to any private or corporate enterprise or
any individual, association, or corporation. To the extent
there are insufficient funds in the fund to be used to pay for
remediation costs or post-remediation costs, the department
shall have no obligations or responsibility to pay for or
conduct cleanup activities.
(d) The department shall collect from each responsible
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person applicant a Brownfield Remediation Reserve Fund
contribution in the amount of five hundred dollars ($500) per
acre for each qualifying property in addition to the voluntary
cleanup program application and oversight fees established by
the department.
(e) Any unexpended or unencumbered funds remaining in
the Brownfield Remediation Reserve Fund at the end of the
state fiscal year shall not revert to the State General Fund
but shall be retained in the fund for continued use in
accordance with this chapter. "
"§22-30E-9
(a) Subject to Sections 22-30E-8 and 22-30E-10, upon
the first to occur of the department's approval of a voluntary
property assessment plan, approval of a voluntary cleanup
plan, or concurrence with the certification of compliance
described in this section, whichever first occurs, an
applicant who is not a responsible person , as defined in
Section 22-30E-3, at the with respect to a qualifying
property, shall be fully discharged and released from any and
all liability not be liable to the state or any third party
other person, including any successor in interest to the
applicant with respect to the qualifying property, for costs
incurred, including any remediation costs or post-remediation
costs.in the investigation or cleanup of, or equitable relief
relating to, or damages resultant from, in whole or in part, a
preexisting release at the qualifying property, including, but
not limited to, any liability to the state for the cleanup of
the property under Chapters 22, 27, 30, 30A, and 35 of this
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title, or a new release of a substance, constituent, or
material which had been part of a preexisting release at the
property, unless such new release results from noncompliance
with an approved voluntary property assessment plan or
voluntary cleanup plan or from the negligent, wanton, willful,
or intentional conduct of the applicant.
(b)(1) A voluntary property assessment plan submitted
by an applicant shall describe in sufficient detail those
actions planned to develop information necessary to perform a
risk assessment or identify applicable cleanup standards for
the qualifying property utilizing risk-based corrective action
principles through the appropriate implementation of
applicable response actions and/or land use controls.
(2) A voluntary property assessment plan shall include
that a responsible person applicant for a qualifying property
may limit the assessment of contaminants and may limit the
delineation of potential contamination to the qualifying
property boundaries or portions thereof.
(2)(3) Upon the department's approval of the voluntary
property assessment plan, the applicant shall implement the
plan.
(3)(4) The department's approval of the voluntary
property assessment plan shall specify a time within which the
applicant shall initiate activities under the voluntary
property assessment plan. The department shall approve or
disapprove each complete plan within 60 days of receiving the
submittal. Failure to act within this time shall be deemed
approval.
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(4)(5) If at any time the department determines
activities at the property are not being implemented in
accordance with the voluntary property assessment plan, the
department may, after a reasonable opportunity is given to
cure the deficiency, revoke the limitation of liability by
providing the applicant with written notification specifying
the basis for making such the determination and requesting
modification and resubmission of a modified plan or an
opportunity to address any deficiencies in implementing the
plan within a reasonable specified time. If at any time the
applicant or the department determines that any element of an
approved voluntary property assessment plan must be modified
in order to develop the information necessary to perform a
risk assessment or identify applicable cleanup standards for
the qualifying property, the applicant shall modify the
approved plan and obtain approval of the proposed
modification. If at any time the applicant determines that any
element of an approved voluntary property assessment plan must
be modified in order to terminate activities at the property
for any reason, the applicant shall notify the department and
obtain approval of the proposed modification which may be
withheld only if the requested modification to terminate
assessment activities would increase the risk to human health
and the environment posed by the conditions at the property.
(5)(6) An applicant shall, upon completion of those
activities specified in the voluntary property assessment
plan, submit to the department a report of the assessment and
findings from the assessment, which may include a
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recommendation for applying cleanup standards to the property.
(c)(1) A voluntary cleanup plan submitted by an
applicant shall describe in sufficient detail those actions
planned to satisfy the cleanup standards for the qualifying
property.
(2) The applicant shall submit proof of financial
assurance, in such a form as specified by the department, of
his or her ability to implement the voluntary cleanup plan,
provided one form of acceptable assurance shall be to rely
solely on the assets of the applicant.
(3) Upon the department's approval of the voluntary
cleanup plan, the applicant shall then implement the plan. The
department's approval of a voluntary cleanup plan shall not in
any way be construed as a guarantee, promise, or assurance
that the department will concur with the applicant's
certification of compliance with the cleanup standards.
(4) The department's approval of the voluntary cleanup
plan shall specify a time within which the applicant must
initiate activities under the voluntary cleanup plan. The
department shall approve or disapprove each properly submitted
plan within 60 days after completion of applicable
requirements established pursuant to subdivision (5) of
subsection (b) of Section 22-30E-4 (b)(5). Failure to act
within this time shall be deemed approval.
(5) If at any time the department determines the
cleanup is not being implemented in accordance with the
voluntary cleanup plan, the department may, after a reasonable
opportunity is given to cure the deficiency, revoke the
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limitation of liability by providing the applicant with
written notification specifying the basis for making such the
determination and requesting modification and resubmission of
a modified plan or an opportunity to address any deficiencies
in implementing the voluntary cleanup plan within a reasonable
specified time. If at any time the applicant determines that
any element of an approved voluntary cleanup plan must be
modified in order to achieve the applicable cleanup standards
for the qualifying property, the applicant shall notify the
department and obtain approval of the proposed modification.
If at any time the applicant determines that any element of an
approved voluntary cleanup plan must be modified in order to
terminate activities at the property for any reason, the
applicant shall notify the department and obtain approval of
the proposed modification which may be withheld only if the
requested modification would increase the risk to human health
and the environment posed by the conditions at the property.
(6) An applicant shall, upon completion of those
activities specified in the voluntary cleanup plan, submit to
the department a compliance status report certifying the
compliance of the qualifying property with the cleanup
standards and cleanup requirements. The qualifying property
shall be deemed in compliance with the cleanup standards upon
the applicant's receipt of the department's written
concurrence with the compliance status report.
(d) Upon the department's approval of the voluntary
property assessment plan or voluntary cleanup plan, the
property shall be listed on the Voluntary Cleanup Properties
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Inventory as provided in Section 22-30E-11.
(e) For those properties that are cleaned up to
standards less stringent than those required for unrestricted
residential use, the property owner shall comply with the
requirements of subsection (b) of Section 22-30E-11 within 60
days of the submission of the certification of compliance.
(f) Subject to Sections 22-30E-8 and 22-30E-10, upon
the department's concurrence with the certification of
compliance described in this section with respect to a
qualifying property , an applicant shall be relieved of further
liability to the state for the cleanup of the property under
Chapters 22, 27, 30, 30A, and 35 of this title, for any
contamination identified and addressed in reports,
assessments, or plans submitted to and approved by the
department to demonstrate compliance with the risk-reduction
standards.
(g) Subject to Sections 22-30E-8 and 22-30E-10, upon
the first to occur of the department's approval of a voluntary
property assessment plan, approval of a voluntary cleanup
plan, or concurrence with the certification of compliance
described in this section, with respect to a qualifying
property, a responsible person applicant shall be fully
discharged and released from any and all liability to the
state or to any other person, including any successor in
interest to the applicant, with respect to the qualifying
property for post-remediation costs incurred in connection
with, equitable relief relating to, or damages resultant from,
in whole or in part, a preexisting release at the qualifying
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property."
"§35-19-4
(a) An environmental covenant must meet all of the
following requirements:
(1) State that the instrument is an environmental
covenant executed pursuant to this chapter.
(2) Contain a legally sufficient description of the
real property subject to the covenant.
(3) Describe the activity and use limitations on the
real property.
(4) Identify every holder.
(5) Be signed by the director, every holder, and unless
waived by the agency, every owner of the fee simple of the
real property subject to the covenant.
(6) Identify the name and location of any
administrative record for the environmental response project
reflected in the environmental covenant.
(b) In addition to the information required by
subsection (a), an environmental covenant may contain other
information, restrictions, and requirements agreed to by the
persons who signed it, including any of the following:
(1) Requirements for notice following transfer of a
specified interest in, or concerning proposed changes in use
of, applications for building permits for, or proposals for
any site work affecting the contamination on, the property
subject to the covenant.
(2) Requirements for periodic reporting describing
compliance with the covenant.
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(3) Rights of access to the property granted in
connection with implementation or enforcement of the covenant.
(4) A brief narrative description of the contamination
and remedy, including the contaminants of concern, the
pathways of exposure, limits on exposure, and the location and
extent of the contamination.
(5) An exculpatory provision that releases the grantor
from future claims by the grantee or the grantee's successor
in title that is consistent and enforceable under the laws of
this state.
(5)(6) Limitation on amendment or termination of the
covenant in addition to those contained in Sections 35-19-9
and 35-19-10.
(6)(7) Rights of the holder in addition to its right to
enforce the covenant pursuant to Section 35-19-11.
(c) In addition to other conditions for its approval of
an environmental covenant, the agency may require those
persons specified by the agency who have interests in the real
property to sign the covenant."
Section 2. Sections 22-30E-14, 22-30E-15, and 22-30E-16
are added to the Code of Alabama 1975, to read as follows:
§22-30E-14
(a) The owner or owners of any affected property may
deliver to any local government that has jurisdiction over the
affected property a written petition requesting the local
government to establish a brownfield redevelopment district,
as a separate public corporation for the purposes of this
chapter, for the affected property. The petition shall be
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executed by the owners of all affected properties who elect to
be included within the district and shall set forth therein,
or by attachments, all of the following:
(1) The name and address of each owner.
(2) A confirmation of the ownership of the affected
properties to be included in the district.
(3) The designation of a person, who may or may not be
an owner of any affected property, to act as a representative
of the owners before the local government.
(4) A request that the local government adopt a
resolution approving the formation of the district as a public
corporation, approving the form of the articles of
incorporation of the district, and authorizing the
representative of the owners to form the district.
(5) A proposed form of the articles of incorporation of
the district which shall include:
a. The names of the owners of the affected properties
to be included within the district.
b. A statement that the district is organized pursuant
to this section by authority of the resolution adopted by the
local government, a copy of which shall be attached to the
articles of incorporation.
c. The name of the district which shall be in the form
of "The Brownfield Redevelopment District of the City (or
Town) of," including such words or numerals sufficient to
distinguish the district from other districts established by
the local government (e.g., "West," "1," or "I").
d. A description by any reasonable reference method,
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including metes and bounds, tax assessment tracts, subdivision
lots, or deeds of the affected properties to be included in
the district.
e. The location of the principle office of the district
which shall be within the boundaries of the district and may
be the principle office of the local government.
f. The number and terms of office of the directors of
the district.
g. The period of the duration of the district, which
shall not exceed 30 years from the October 1 which next
succeeds the date of establishment of the district.
h. That the district shall be a nonprofit corporation
and no part of the net earnings which remain after payment of
expenses shall inure to the benefit of any person other than
the local government.
i. That upon dissolution of the district as provided by
law, title to any property then owned by the district shall
immediately vest in the local government.
(b) The governing body of the local government shall
consider the petition as soon as practicable after receipt
and, if the governing body determines that formation of the
district is in the public interest, shall adopt a resolution
upon original introduction of the petition for immediate
consideration at a meeting of the body. The resolution need
not be by unanimous consent and shall become effective
immediately without publication and shall include all of the
following:
(1) A legislative determination that the establishment
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and incorporation of the district is necessary and in the
public interest.
(2) A legislative determination that all of the
affected properties to be included in the district are located
within the corporate limits or territorial boundaries of the
local government.
(3) The approval of the proposed form of the articles
of incorporation of the district as set forth in the petition.
(4) The authorization of the records clerk of the local
government to provide to the representative of the owners of
the affected property a certified copy of the resolution and
of the proceedings of the governing body of the local
government regarding the adoption of the resolution.
(5) The authorization of the representative of the
owners to proceed to establish, form, and incorporate the
district by recording the articles of incorporation in the
office of the judge of probate of the county in which the
principal office of the local government is located.
(c)(1) Upon receipt of the resolution and proceedings
of the governing body of the local government by the
representative of the owners of the affected property, the
representative shall complete, execute, and acknowledge the
articles of incorporation before an officer authorized by the
laws of the state to take acknowledgments of deeds and cause
the articles to be filed in the office directed by the
resolution.
(2) Upon filing the articles of incorporation, the
district shall come into existence as a public corporation
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under the name provided in the articles and have all authority
and powers provided by this chapter. The recorded articles of
incorporation shall be conclusive evidence of the due, legal,
and valid incorporation of the district in all courts.
(d) A municipality or county may only establish a
brownfield redevelopment district that includes affected
property within the corporate limits or territorial boundaries
thereof, provided a county may include any affected property
within a municipality that is within the county so long as a
majority of the members of the governing body of the
municipality consent.
(e) A brownfield redevelopment district established
pursuant to this chapter shall constitute a governmental
entity as defined in Chapter 93 of Title 11 for purposes of
limiting the damages for which the district, and all of the
district's directors, officers, and agents may be liable.
(f) Upon establishing a brownfield redevelopment
district, the applicants of qualifying property located within
the district who meet the criteria provided in Section
22-30E-8 shall qualify for those limitations of liability
provided in Section 22-30E-9(a) and (g), provided that each
applicant of a qualifying property located within the district
shall covenant not to sue any other applicant within the
district commensurate with the release of liability provided
to each applicant.
§22-30E-15
(a) A brownfield redevelopment district formed and
incorporated pursuant to Section 22-30E-14 shall be governed
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by a board of directors who shall have and exercise all power
and authority of the district.
(b) The board of directors shall be appointed by the
governing body of the establishing local government and
composed of the number of directors, provided not less than
three, and for the terms of office as provided for in the
articles of incorporation. Any officer of the local government
or owner of any affected property within the district,
regardless of residence, may serve as a director of the
district. The board shall elect a chair, vice chair, and
secretary-treasurer from the members of the board.
(c) All directors shall remain in office upon the
expiration of their term until a successor is appointed, and
may be impeached and removed from office as provided in
Section 175 of the Constitution of Alabama of 2022, and by the
general laws of the state for impeachment and removal of
officers mentioned in Section 175. A majority of the directors
shall constitute a quorum for the exercise of all authority
and powers of the district. Each director shall serve without
compensation.
§22-30E-16
A brownfield redevelopment district may do any of the
following:
(1) Adopt and amend bylaws not in conflict with the
articles of incorporation.
(2) Sue and be sued in civil action subject to the
limitations of liability provided by this chapter.
(3) At the direction of the local government which
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established the district:
a. Provide for the administration, management, and
supervision of the activities and business of the district.
b. Acquire interests in property.
c. Incur indebtedness for purposes of this chapter on
behalf of the local government that is payable only from funds
provided by the local government to the district for such use.
(4) Make agreements and contracts, take all actions,
and do any and all things not otherwise prohibited by law to
accept, realize, and use any financial aid or other assistance
provided by any person or other entity.
(5) Take any other actions as necessary to carry out
the authority expressly given in this section.
Section 3. This act shall become effective on the first
day of the third month following its passage and approval by
the Governor, or its otherwise becoming law.
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________________________________________________
Speaker of the House of Representatives
________________________________________________
President and Presiding Officer of the Senate
House of Representatives
I hereby certify that the within Act originated in and
was passed by the House 09-May-23, as amended.
John Treadwell
Clerk
Senate 24-May-23 Passed
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