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Current Status Bill Number:View additional legislative information at the LPITS web site.3603 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19990224 Primary Sponsor:D. Smith All Sponsors:D. Smith Drafted Document Number:l:\council\bills\psd\7182ac99.doc Residing Body:House Current Committee:Agriculture, Natural Resources and Environmental Affairs Com 20 HANR Subject:Brownfields Property Reuse Act of 1999, Hazardous and Nuclear Waste, Health and Environmental Control History Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ House 19990224 Introduced, read first time, 20 HANR referred to Committee Versions of This Bill
TO AMEND CHAPTER 56, TITLE 44, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE SOUTH CAROLINA HAZARDOUS WASTE MANAGEMENT ACT, BY ADDING ARTICLE 7, SO AS TO ENACT THE "BROWNFIELDS PROPERTY REUSE ACT OF 1999" WHICH AUTHORIZES THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL TO ENTER INTO AGREEMENTS WITH PROSPECTIVE DEVELOPERS WHO SEEK TO EXPAND OR REDEVELOP ABANDONED, IDLED, OR UNDERUSED PROPERTY WHICH MAY BE HINDERED BY ENVIRONMENTAL CONTAMINATION AND THAT MAY BE SUBJECT TO A STATE REMEDIATION PROGRAM UNDER FEDERAL LAW; WHICH PROVIDES LIABILITY PROTECTION UNDER CERTAIN CIRCUMSTANCES; AND WHICH PROVIDES PUBLIC NOTICE AND HEARING PROCEDURES.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 56 of Title 44 of the 1976 Code is amended by adding:
Section 44-56-705. This article may be cited as 'The Brownfields Property Reuse Act of 1999'.
Section 44-56-710. (A) As used in this article, unless a different meaning is required by the context:
(1) 'Affiliate' has the same meaning as in 17 Code of Federal regulations Section 240.12b-2.
(2) 'Brownfields agreement' means an agreement between the department and a prospective developer that meets the requirements of Section 44-56-715.
(3) 'Brownfields property' or 'brownfields site' means abandoned, idled, or underused property at which expansion or redevelopment is hindered by actual environmental contamination or the possibility of environmental contamination and that is or may be subject to remediation under any state remedial program or that is or may be subject to remediation under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended.
(4) 'Contaminant' means a regulated substance released into the environment.
(5) 'Current standards' when used in connection with 'cleanup', 'remediated', or 'remediation' means that cleanup or remediation of contamination complies with generally applicable standards, guidance, or established methods governing the contaminants that are established by statute or adopted, published, or implemented by the department.
(6) 'Department' means Department of Health and Environmental Control.
(7) 'Environmental contamination' means contaminants at the property requiring remediation and that are to be remediated under the brownfields agreement including, at a minimum, hazardous waste, a hazardous substance, or oil.
(8) 'Local government' means a town, city, or county.
(9) 'Parent' has the same meaning as in 17 Code of Federal Regulations, Section 240.12b-2.
(10) 'Potentially responsible party' means a person who is or may be liable for remediation under a remedial program.
(11) 'Prospective developer' means a person who desires to either buy or sell a brownfields property for the purpose of developing or redeveloping that brownfields property and who did not cause or contribute to the contamination at the brownfields property.
(12) 'Regulated substance' means a hazardous waste, a hazardous substance, oil, or other substance regulated under any remedial program implemented by the department.
(13) 'Remedial program' means a program implemented by the department for the remediation of any contaminant.
(14) 'Remediation' means action to clean up, mitigate, correct, abate, minimize, eliminate, control, or prevent the spreading, migration, leaking, leaching, volatilization, spilling, transport, or further release of a contaminant into the environment in order to protect public health or the environment.
(15) 'Subsidiary' has the same meaning as in 17 Code of Federal Regulations, Section 240.12b-2.
Section 44-56-715. (A) The Department of Health and Environmental Control may enter into a brownfields agreement with a prospective developer who provides the department with any information necessary to demonstrate that:
(1) the prospective developer, and any parent, subsidiary, or other affiliate of the prospective developer, has substantially complied with:
(a) the terms of any brownfields agreement or similar agreement to which the prospective developer, or any parent, subsidiary, or other affiliate of the prospective developer, has been a party;
(b) the requirements applicable to any remediation in which the applicant has previously engaged;
(c) federal and state laws, regulations, and rules for the protection of the environment.
(2) as a result of the implementation of the brownfields agreement, the brownfields property will be suitable for the uses specified in the agreement while fully protecting public health and the environment instead of being remediated to current standards.
(3) there is a public benefit commensurate with the liability protection provided under this article.
(4) the prospective developer has or can obtain the financial, managerial, and technical means to fully implement the brownfields agreement and assure the safe use of the brownfields property.
(5) the prospective developer has complied with or will comply with all applicable procedural requirements.
(B) In negotiating a brownfields agreement, parties may rely on land-use restrictions that will be included in a Notice of Brownfields Property required under Section 44-56-730. A brownfields agreement may provide for remediation standards that are based on those land-use restrictions.
(C) A brownfields agreement shall contain a description of the brownfields property that would be sufficient as a description of the property in an instrument of conveyance and, as applicable, a statement of:
(1) the remediation to be conducted on the property, including:
(a) a description of specific areas where remediation is to be conducted;
(b) the remediation method or methods to be employed;
(c) the resources that the prospective developer will make available;
(d) a schedule of remediation activities;
(e) applicable remediation standards;
(f) a schedule and the method or methods for evaluating the remediation.
(2) the land-use restrictions that will apply to the brownfields property;
(3) the desired results of any remediation or land-use restrictions with respect to the brownfields property;
(4) the guidelines, including parameters, principles, and policies within which the desired results are to be accomplished;
(5) the consequences of achieving or not achieving the desired results.
(D) Any failure of the prospective developer or the prospective developer's agents and employees to comply with the brownfields agreement constitutes a violation of this article by the prospective developer.
Section 44-56-720. (A) A prospective developer who enters into a brownfields agreement with the department and who is complying with the brownfields agreement is not liable for remediation of areas of contaminants identified in the brownfields agreement except as specified in the brownfields agreement, so long as the activities conducted on the brownfields property by or under the control or direction of the prospective developer do not increase the risk of harm to public health or the environment and the prospective developer is not required to undertake additional remediation to current standards pursuant to subsection (C). The liability protection provided under this article applies to the following persons to the same extent as to a prospective developer, so long as these persons are not otherwise potentially responsible parties or parents, subsidiaries, or affiliates of potentially responsible parties and the person is not required to undertake additional remediation to current standards pursuant to subsection (C):
(1) A person under the direction or control of the prospective developer who directs or contracts for remediation or redevelopment of the brownfields property;
(2) a future owner of the brownfields property;
(3) a person who develops or occupies the brownfields property;
(4) a successor or assign of a person to whom the liability protection provided under this article applies;
(5) a lender or fiduciary that provides financing for remediation or redevelopment of the brownfields property.
(B) A person who conducts an environmental assessment or transaction screen on a brownfields property and who is not otherwise a potentially responsible party is not a potentially responsible party as a result of conducting the environmental assessment or transaction screen unless that person increases the risk of harm to public health or the environment by failing to exercise due diligence and reasonable care in performing the environmental assessment or transaction screen.
(C) If a land-use restriction set out in the Notice of Brownfields Property required under Section 44-56-730 is violated, the owner of the brownfields property at the time the land-use restriction is violated, the owner's successors and assigns, and the owner's agents who direct or contract for alteration of the brownfields property in violation of a land-use restriction, is liable for remediation to current standards. A prospective developer who completes the remediation or redevelopment required under a brownfields agreement or other person who receives liability protection under this article is not required to undertake additional remediation at the brownfields property unless any of the following apply:
(1) The prospective developer knowingly or recklessly provides false information that forms a basis for the brownfields agreement or that is offered to demonstrate compliance with the brownfields agreement or fails to disclose relevant information about contamination at the brownfields property.
(2) New information indicates the existence of previously unreported contaminants or an area of previously unreported contamination on or associated with the brownfields property that has not been remediated to current standards, unless the brownfields agreement is amended to include any previously unreported contaminants and any additional areas of contamination. If the brownfields agreement sets maximum concentrations for contaminants and new information indicates the existence of previously unreported areas of these contaminants, further remediation must be required only if the areas of previously unreported contaminants raise the risk of the contamination to public health or the environment to a level less protective of public health and the environment than that required by the brownfields agreement.
(3) The level of risk to public health or the environment from contaminants is unacceptable at or in the vicinity of the brownfields property due to changes in exposure conditions, including:
(a) a change in land use that increases the probability of exposure to contaminants or in the vicinity of the brownfields property, or
(b) the failure of remediation to mitigate risks to the extent required to make the brownfields property fully protective of public health and the environment as planned in the brownfields agreement.
(4) The department obtains new information about a contaminant associated with the brownfields property or exposures at or around the brownfields property that raises the risk to public health or the environment associated with the brownfields property beyond an acceptable range and in a manner or to a degree not anticipated in the brownfields agreement. A person whose use, including any change in use, of the brownfields property causes an unacceptable risk to public health or the environment may be required by the department to undertake additional remediation measures under this article.
(5) A prospective developer fails to file a timely and proper Notice of Brownfields Development under this article.
Section 44-56-725. (A) A prospective developer who desires to enter into a brownfields agreement shall notify the public and the community in which the brownfields property is located of planned remediation and redevelopment activities. The prospective developer shall submit a Notice of Intent to Redevelop a Brownfields Property and a summary of the Notice of Intent to the department. The Notice of Intent shall provide, to the extent known, a legal description of the location of the brownfields property, a map showing the location of the brownfields property, a description of the contaminants involved and their concentrations in the media of the brownfields property, a description of the intended future use of the brownfields property, any proposed investigation and remediation, and a proposed Notice of Brownfields Property prepared in accordance with Section 44-56-730. Both the Notice of Intent and the summary of the Notice of Intent shall state the time period and means for submitting written comment and for requesting a public meeting on the proposed brownfields agreement. The summary of the Notice of Intent shall include a statement as to the public availability of the full Notice of Intent. After approval of the Notice of Intent and summary of the Notice of Intent by the department, the prospective developer shall provide a copy of the Notice of Intent to all local governments having jurisdiction over the brownfields property. The prospective developer shall publish the summary of the Notice of Intent in a newspaper of general circulation serving the area in which the brownfields property is located. The prospective developer shall also conspicuously post a copy of the summary of the Notice of Intent at the brownfields site.
(B) Publication of the approved summary of the Notice of Intent in a newspaper of general circulation shall begin a public comment period of at least sixty days from the date of publication. During the public comment period, members of the public, residents of the community in which the brownfields property is located, and local governments having jurisdiction over the brownfields property may submit comment on the proposed brownfields agreement, including methods and degree of remediation, future land uses, and impact on local employment.
(C) A person who desires a public meeting on a proposed brownfields agreement shall submit a written request for a public meeting to the department within thirty days after the public comment period begins. The department shall consider all requests for a public meeting and shall hold a public meeting if the department determines that there is significant public interest in the proposed brownfields agreement. If the department decides to hold a public meeting, the department shall, at least thirty days before the public meeting, mail written notice of the public meeting to all persons who requested the public meeting and to any other person who had previously requested notice. The department shall also direct the prospective developer to publish, at least thirty days before the date of the public meeting, a notice of the public meeting at least one time in a newspaper having general circulation in such county where the brownfields property is located. In any county in which there is more than one newspaper having general circulation, the department shall direct the prospective developer to publish a copy of the notice in as many newspapers having general circulation in the county as the department determines to be necessary to assure that the notice is generally available throughout the county. The department shall prescribe the form and content of the notice to be published and the procedures to be followed in the public meeting. The department shall take detailed minutes of the meeting. The minutes shall include any written comments, exhibits, or documents presented at the meeting.
(D) Before entering into a brownfields agreement, the department shall take into account the comment received during the comment period and at the public meeting if the department holds a public meeting. The department shall incorporate into the brownfields agreement provisions that reflect comment received during the comment period and at the public meeting to the extent practical. The department shall give particular consideration to written comment that is supported by valid scientific and technical information and analysis.
Section 44-56-730. (A) In order to reduce or eliminate the danger to public health or the environment posed by a brownfields property being addressed under this article, a prospective developer who desires to enter into a brownfields agreement with the department shall submit to the department a proposed Notice of Brownfields Property. A Notice of Brownfields Property must be entitled 'Notice of Brownfields Property', shall include a survey plat of areas designated by the department that has been prepared and certified by a professional land surveyor, shall include a legal description of the brownfields property that would be sufficient as a description of the property in an instrument of conveyance, and shall identify all of the following:
(1) the location and dimensions of the areas of potential environmental concern with respect to permanently surveyed benchmarks;
(2) the type, location, and quantity of regulated substances and contaminants known to exist on the brownfields property;
(3) restrictions on the current or future use of the brownfields property or, with the owner's permission, other property that are necessary or useful to maintain the level of protection appropriate for the designated current or future use of the brownfields property and that are designated in the brownfields agreement. These land-use restrictions may apply to activities on, over, or under the land including, but not limited to, use of groundwater, building, filling, grading, excavating, and mining. Where a brownfields property encompasses more than one parcel or tract of land, a composite map or plat showing all parcels or tracts may be recorded.
(B) After the department approves and certifies the Notice of Brownfields Property under subsection (A), a prospective developer who enters into a brownfields agreement with the department shall file a certified copy of the Notice of Brownfields Property in the register of deeds office in the county or counties in which the land is located. The prospective developer shall file the Notice of Brownfields Property within fifteen days of the prospective developer's receipt of the department's approval of the notice or the prospective developer's entry into the brownfields agreement, whichever is later.
(C) The register of deeds shall record the certified copy of the notice and index it in the grantor index under the names of the owners of the land and, if different, also under the name of the prospective developer conducting the redevelopment of the brownfields property.
(D) When a brownfields property is sold, leased, conveyed, or transferred, the deed or other instrument of transfer shall contain in the description section, in no smaller type than that used in the body of the deed or instrument, a statement that the brownfields property has been classified and, if appropriate, cleaned up as a brownfields property under this article.
(E) A Notice of Brownfields Property filed pursuant to this section may, at the request of the owner of the land, be cancelled by the department after the hazards have been eliminated. If requested in writing by the owner of the land and if the department concurs with the request, the department shall send to the register of deeds of each county where the notice is recorded a statement that the hazards have been eliminated and request that the notice be cancelled of record. The department's statement shall contain the names of the owners of the land as shown in the notice and reference the plat book and page where the notice is recorded. The register of deeds shall record the department's statement in the deed books and index it on the grantor index in the names of the owners of the land as shown in the Notice of Brownfields Property and on the grantee index in the name 'Director of Department of Health and Environmental Control'. The register of deeds shall make a marginal entry on the Notice of Brownfields Property showing the date of cancellation and the book and page where the department's statement is recorded, and the register of deeds shall sign the entry. If a marginal entry is impracticable because of the method used to record maps and plats, the register of deeds is not required to make a marginal entry.
(F) A land-use restriction filed pursuant to this section must be enforced by any owner of the land. A land-use restriction may also be enforced by the department through the remedies available to the department or by means of a civil action. The department may enforce a land-use restriction without first having exhausted available administrative remedies. A land-use restriction may also be enforced by any unit of local government having jurisdiction over any part of the brownfields property by means of a civil action without the unit of local government having first exhausted any available administrative remedy. A land-use restriction may also be enforced by a person eligible for liability protection under this article who will lose liability protection if the land-use restriction is violated. A land-use restriction may not be declared unenforceable due to lack of privity of estate or contract, due to lack of benefit to particular land, or due to lack of any property interest in particular land. A person who owns or leases a property subject to a land-use restriction under this section shall abide by the land-use restriction."
Section 44-56-740. (A) This article is not intended and may not be construed to:
(1) affect the ability of local governments to regulate land use. The use of the identified brownfields property and any land-use restrictions in the brownfields agreement must be consistent with local land-use controls;
(2) amend, modify, repeal, or otherwise alter any provision of any remedial program or other provision of law relating to civil and criminal penalties or enforcement actions and remedies available to the department, except as may be provided in a brownfields agreement;
(3) prevent or impede the immediate response of the department or responsible party to any emergency that involves an imminent or actual release of a regulated substance that threatens public health or the environment;
(4) relieve a person receiving liability protection under this article from any liability for contamination later caused by that person on a brownfields property;
(5) affect the right of a person to seek relief available against a party to the brownfields agreement who may have liability with respect to the brownfields property, except that this article does limit the relief available against any party to a brownfields agreement with respect to remediation of the brownfields property to the remediation required under the brownfields agreement;
(6) affect the right of a person who may have liability with respect to the brownfields property to seek contribution from another person who may have liability with respect to the brownfields property and who neither received nor has liability protection under this article;
(7) prevent the State from enforcing specific numerical remediation standards, monitoring, or compliance requirements specifically required to be enforced by the federal government as a condition to receive program authorization, delegation, primacy, or federal funds;
(8) create a defense against the imposition of criminal and civil fines or penalties or administrative penalties otherwise authorized by law and imposed as the result of the illegal disposal of waste or for the pollution of the land, air, or waters of this State on a brownfields property;
(9) relieve a person of any liability for failure to exercise due diligence and reasonable care in performing an environmental assessment or transaction screen.
(B) Notwithstanding the provisions of the South Carolina Tort Claims Act, as provided for in Chapter 78, Title 15, or any other provision of law waiving the sovereign immunity of the State, the State, its agencies, officers, employees, and agents are absolutely immune from any liability in any proceeding for any injury or claim arising from negotiating, entering, monitoring, or enforcing a brownfields agreement or a Notice of Brownfields Property under this article or any other action implementing this article.
(C) The department may not enter into a brownfields agreement for a brownfields site that is identified by the United States Environmental Protection Agency as a federal Superfund site pursuant to 40 Code of Federal Regulations, Part 300 (1 July 1996 Edition).
Section 44-56-745. The Brownfields Property Reuse Act Implementation Account is created as a nonreverting interest-bearing account in the Office of the State Treasurer. The account shall consist of fees collected under Section 44-56-750, funds appropriated to it by the General Assembly, funds received from the federal government, funds contributed by private organizations, and funds received from any other source. Funds in the account must be used by the department to defray a portion of the costs of implementing this article.
Section 44-56-750. (A) The department shall collect the following fees:
(1) A prospective developer who submits a proposed brownfields agreement for review by the department shall pay a fee of one thousand dollars;
(2) A prospective developer who submits a final report certifying completion of remediation under a brownfields agreement shall pay a fee of five thousand dollars.
(B) Fees imposed under this section must be credited to the Brownfields Property Reuse Act Implementation Account.
Section 44-56-755. The department shall prepare and submit to the General Assembly an evaluation of the effectiveness of this article in facilitating the remediation and reuse of existing industrial and commercial properties. This evaluation shall include any recommendations for additional incentives or changes, if needed, to improve the effectiveness of this article in addressing such properties. This evaluation shall also include a report on receipts by and expenditures from the Brownfields Property Reuse Act Implementation Account."
SECTION 2. This act takes effect upon approval by the Governor.
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