HB 378 — 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

HB378 ENGROSSEDENROLLED CVB4JW-2CVB4JW-3 By Representative Brown RFD:

25-Apr-23 2023 Regular Session Page 0 HB378 EngrossedEnrolled 2Enrolled, 4An AAct, BILL3 TO BE ENTITLED AN ACT 9 Relating to environmental protection;

The Legislature finds that this perception of contamination Page 1 HB378 Engrossed discourages the purchase and productive use of otherwise usable properties.

(b) The Legislature finds that industries and developers often give preference to previously unused Page 1 HB378 Enrolled 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 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 Page 2 HB378 Engrossed 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 Page 2 HB378 Enrolled 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.

An owner or operator or prospective purchaser of a qualifying property seeking to participate in the voluntary cleanup program established pursuant to this Page 3 HB378 Engrossed chapter.

An amount provided to the department by a responsible person applicant pursuant to Section 22-30E-5 for deposit into and to Page 3 HB378 Enrolled be used for the purposes of the Brownfield Remediation Reserve Fund.

A statement prepared by a professional engineer or geologist licensed to practice 95 in the State of Alabama which certifies compliance with a voluntary cleanup plan required by Section 22-30E-9.

95 (5)(6) COMMISSION.

The navigable waters, the waters of the contiguous zone, and the ocean waters of which the natural resources are Page 4 HB378 Engrossed under the exclusive management authority of the United States under the Magnuson Fishery Conservation and Management Act.

Page 4 HB378 Enrolled (8)(9) FACILITY.

Page 5 HB378 Engrossed (12)(14) OWNER or OPERATOR.

Any person who owned, operated, or otherwise controlled activities at a facility immediately prior to title Page 5 HB378 Enrolled 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.

Any individual, corporation, general or limited partnership, limited liability company or partnership, Page 6 HB378 Engrossed joint venture, association, trust, unincorporated organization, or governmental authority.

Are incurred after issuance of the Letter of Concurrence with Conditions for, or with respect to, the Page 6 HB378 Enrolled 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.

Any site or area where a hazardous waste, hazardous constituent, hazardous substance, or petroleum product has Page 7 HB378 Engrossed been deposited, stored, disposed of, placed, or has otherwise come to be located.

Page 7 HB378 Enrolled (17)(21) RELEASE.

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 Page 8 HB378 Engrossed voluntary cleanup plan or from the negligent, wanton, willful, or intentional conduct of the applicant.

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 Page 8 HB378 Enrolled 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.

Page 9 HB378 Engrossed (21)(27) RISK ASSESSMENT.

The Page 9 HB378 Enrolled Voluntary Cleanup Properties Inventory compiled and updated by the department pursuant to Section 22-30E-11.

Page 10 HB378 Engrossed (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 Page 10 HB378 Enrolled under this chapter.

(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 Page 11 HB378 Engrossed 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).

The department may grant a variance from the eligibility requirements contained in subsection (a) of Page 11 HB378 Enrolled 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:

In the case of a facility subject to the Page 12 HB378 Engrossed 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 Page 12 HB378 Enrolled shall not serve to limit the applicability or enforcement of any applicable requirements at such facilities.

Part 300), and/or based upon the results of a Page 13 HB378 Engrossed site-specific risk assessment.

(3) The department may set cleanup levels which that Page 13 HB378 Enrolled reflect current and future use scenarios for the property as follows:

Page 14 HB378 Engrossed (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 Page 14 HB378 Enrolled 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.

Page 15 HB378 Engrossed (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 Page 15 HB378 Enrolled 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.

(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 Page 16 HB378 Engrossed any individual, association, or corporation.

(d) The department shall collect from each responsible Page 16 HB378 Enrolled 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 Page 17 HB378 Engrossed 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 Page 17 HB378 Enrolled 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.

(3)(4) The department's approval of the voluntary Page 18 HB378 Engrossed property assessment plan shall specify a time within which the applicant shall initiate activities under the voluntary property assessment plan.

Page 18 HB378 Enrolled (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 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 Page 19 HB378 Engrossed assessment activities would increase the risk to human health and the environment posed by the conditions at the property.