This chapter shall be known and may be cited as the "Alabama Land Recycling and Economic Redevelopment Act." (Act 2001-635, p. 1225, §1.)
VOLUNTARY ASSESSMENT AND/OR CLEANUP PROGRAM FOR PROPERTIES WITH POTENTIAL ENVIRONMENTAL CONTAMINATION.
The Legislature finds that properties in Alabama may have areas with actual or perceived contamination 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 cleanup of such properties is in the public interest.
The Legislature finds that previously unused greenfield sites are often selected for development over previously used property due largely to concerns over the financial and environmental liabilities that 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 that are contaminated, or perceived to be contaminated, is in the public interest.
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 undeveloped farmland, open space areas, and natural areas; and reduce public costs for installing new water, sewer, and other utilities and highway infrastructure.
The Legislature finds that it is necessary to pass legislation that provides a mechanism to implement a cleanup program that encourages applicants to voluntarily assess, clean up, 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 that may arise after remediation. This finding shall not be interpreted to relieve a "responsible person" from any liability for administrative, civil, or criminal fines or penalties otherwise authorized by law and imposed as a result of illegal 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.
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. (Act 2001-635, p. 1225, §1; Act 2023-356, §1.)
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 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) 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 be used for the purposes of the Brownfield Remediation Reserve Fund.
(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.
(5) CLEANUP. The cleaning up, remediation, control, or removal of contaminants from the environment in accordance with an approved voluntary cleanup plan.
(6) COMMISSION. The Environmental Management Commission as defined in Section 22-22A-3.
(7) DEPARTMENT. The Alabama Department of Environmental Management.
(8) ENVIRONMENT. The term includes the following, as defined by the federal Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C., § 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.
(9) FACILITY. The term is synonymous with "property."
(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.
(11) HAZARDOUS WASTE TREATMENT, STORAGE, OR DISPOSAL FACILITY. Any property or facility that is intended or used for the treatment, storage, or disposal of hazardous waste subject to the permit requirements of Section 22-30-12.
(12) LAND USE CONTROLS. Any restriction or control, which serves to protect human health or the environment, that limits use of 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.
(14) OWNER or OPERATOR. a. The term includes both of the following: 1. In the case of a facility, any person who is the owner or operator of the facility. 2. Any person who owned, operated, or otherwise controlled activities at a facility immediately prior to title 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 that 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 that 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 both of the following apply: a. Are incurred after issuance of the Letter of Concurrence with Conditions for, or with respect to, the investigation, assessment, cleanup, remediation, control, or removal of contaminants resultant from, in whole or part, a preexisting release at the qualifying property which 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.
(17) PREEXISTING RELEASE. A release that occurred prior to an applicant's application for a limitation of liability pursuant to Section 22-30E-9.
(18) PROPERTY. The term is synonymous with "facility" and includes both of 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.
(19) PROSPECTIVE PURCHASER. A person who intends to purchase a qualifying property.
(20) QUALIFYING PROPERTY. A property that meets the criteria of Section 22-30E-6.
(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 product, or hazardous substance.
(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.
(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, prevent, or 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.
(25) RESPONSIBLE PERSON. Except as otherwise provided in this chapter, 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.
(27) RISK ASSESSMENT. A written site specific evaluation of the risks to human health and the environment posed by conditions at a site.
(28) VOLUNTARY CLEANUP PLAN. A voluntary cleanup plan approved under Section 22-30E-9.
(29) VOLUNTARY CLEANUP PROPERTIES INVENTORY. The Voluntary Cleanup Properties Inventory compiled and updated by the department pursuant to Section 22-30E-11.
(30) VOLUNTARY PROPERTY ASSESSMENT PLAN. A voluntary property assessment plan approved under Section 22-30E-9. (Act 2001-635, p. 1225, §1; Act 2023-356, §1.)
The department, acting through the commission, may adopt, 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 adopted pursuant to this chapter shall comply with applicable provisions of the Alabama Administrative Procedure Act, Section 41-22-11.
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 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 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.
(10) Rules and regulations governing the issuance of variances to the criteria for property qualification for the voluntary cleanup program pursuant to Section 22-30E-6(b), and to the criteria for applicant participation in the voluntary cleanup program pursuant to Section 22-30E-7(b).
(c)(1) For purposes of subdivision (b)(10), the department may grant a variance from the eligibility requirements contained in Section 22-30E-6(a), Section 22-30E-7(a), or both, only if the department finds that 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: a. Ineligibility would result in the continuation of a condition that poses or could pose a threat to human health or the environment. 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. 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. d. In the case of a facility subject to the permitting, closure, postclosure, 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 sites, but shall not serve to limit the applicability or enforcement of any applicable requirements at facilities.
(2) The department may place 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 the conditions the department may modify or withdraw the variance, with the withdrawal subject to the department's administrative appeals process.
(3) The department shall not grant any variance from the criteria for qualification for limitation of liability, as contained in Section 22-30E-8.
In establishing cleanup standards pursuant to 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, or based upon the results of a site-specific risk assessment.
(2) The department may set cleanup levels for all hazardous constituents, for 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 that 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. (Act 2001-635, p. 1225, §1; Act 2023-356, §1.)
In addition to the powers and duties specified in this chapter and Chapter 22A, 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).
(3) To make determinations, in accordance with procedures and criteria enumerated in this chapter and rules and regulations 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.
(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.
(5) To approve voluntary property assessment plans.
(6) To approve voluntary cleanup plans.
(7) To concur with certifications of compliance.
(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 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 dollars ($4,000,000) per property, to pay the post-remediation costs with respect to any property in the state that was cleaned up or remediated in accordance with this chapter 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 with respect to, 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.
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.
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.
The department shall collect from each responsible 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.
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. (Act 2001-635, p. 1225, §1; Act 2023-356, §1.)
In order to be considered a qualifying property for participation in the voluntary cleanup program established pursuant to this chapter, a property shall, unless granted a variance under subsection (b), meet the following criteria:
(1) The property must not be listed on the federal National Priorities List pursuant to the federal Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601, et seq.
(2) The property must not be currently undergoing response activities required by an order of either the department, or the regional administrator of the federal Environmental Protection Agency issued pursuant to the provisions of the federal Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601, et seq.
(3) The property must not be a hazardous waste treatment, storage, or disposal facility as defined in Section 22-30E-3.
The department may promulgate rules and regulations to implement this section, including rules granting a variance from the eligibility requirements contained in subsection (a) pursuant to subdivision (7) of subsection (b) of Section 22-30E-4. (Act 2001-635, p. 1225, §1.)
To qualify for participation in the voluntary cleanup program as provided in this chapter, an applicant shall not, unless granted a variance under subsection (b), be in violation of any order, judgment, statute, rule, or regulation subject to the enforcement authority of the department with respect to the qualifying property.
The department may promulgate rules and regulations to implement this section, including rules granting a variance from the eligibility requirements contained in subsection (a) pursuant to subdivision (7) of subsection (b) of Section 22-30E-4. (Act 2001-635, p. 1225, §1.)
To qualify for a limitation of liability as provided in subsection (a) of Section 22-30E-9, an applicant shall meet all the following criteria:
(1) The applicant shall not be a responsible person, as defined in Section 22-30E-3, at the qualifying property.
(2) Where the applicant is an individual, the individual shall not: Be a relative by blood within the third degree of consanguinity or by marriage; be an employee, shareholder, officer, or agent; or otherwise be affiliated with a current owner of the subject property or any responsible person on the subject property.
(3) Where the applicant is a corporation or other legal entity, the corporation must not: Be a current or former subsidiary, division, parent company, or partner; or be the employer or former employer of the current owner; or be any responsible person on the subject property.
(4) The applicant shall be in good standing with respect to any order, judgment, statute, rule, or regulation subject to the enforcement authority of the department.
Applicants which do not meet the criteria in subsection (a), shall qualify only for a limitation of liability as provided in subsection (f) of Section 22-30E-9.
The department may promulgate rules and regulations to implement this section. (Act 2001-635, p. 1225, §1.)
CLEANUP PLANS; FINANCIAL ASSURANCE.
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, an applicant who is not a responsible person with respect to a qualifying property shall be fully discharged and released from any and all liability to the state or any 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.
(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 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.
(3) Upon the department's approval of the voluntary property assessment plan, the applicant shall implement the plan.
(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.
(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, after a reasonable opportunity is given to cure the deficiency, may revoke the limitation of liability by providing the applicant with written notification specifying the basis for making 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.
(6) An applicant, upon completion of those activities specified in the voluntary property assessment plan, shall submit to the department a report of the assessment and findings from the assessment, which may include a 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 a form 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 implement the plan. The department's approval of a voluntary cleanup plan shall not 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 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, after a reasonable opportunity is given to cure the deficiency, may revoke the limitation of liability by providing the applicant with written notification specifying the basis for making 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, upon completion of those activities specified in the voluntary cleanup plan, shall 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.
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 Inventory as provided in Section 22-30E-11.
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 Section 22-30E- 11(b) within 60 days of the submission of the certification of compliance.
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, 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.
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 property. (Act 2001-635, p. 1225, §1; Act 2023-356, §1.)
The Legislature declares that, in order to achieve the economic redevelopment and site rehabilitation of contaminated properties in accordance with this chapter, it is imperative to encourage financing of real property transactions involving qualifying property. Accordingly, a lender, including one serving as a trustee, personal representative, or in any other fiduciary capacity in connection with a loan, and a lender holding evidence of ownership of a qualifying property primarily to protect a security interest, or as a result of foreclosure or a deed in lieu of foreclosure of a security interest, is entitled to the liability protection established in subsection (a) of Section 22-30E-9 if the lender meets each of the following requirements:
(1) The lender has not caused or contributed to a release of a contaminant at the qualified property.
(2) The lender seeks to sell, transfer, or otherwise divest the qualifying property at the earliest commercially practicable time.
(3) The lender has not divested the borrower of, or otherwise engaged in, decision-making control of assessment or cleanup activities at the qualifying property or operations at the qualifying property or undertaken management activities beyond those required to protect its financial interest while making a good faith effort to sell the qualifying property.
The limitation of liability provided by subsection (a) of Section 22-30E-9 shall be contingent upon the applicant's good faith implementation of the voluntary property assessment plan or voluntary cleanup plan as approved by the department. Such limitation of liability shall not be applicable to any activities conducted on the qualifying property before the department's approval of the voluntary property assessment plan, cleanup plan, or concurrence with a certification of compliance, whichever first occurs.
The limitation of liability provided by this chapter shall not affect any right of indemnification which any person has or may acquire by contract against any other person; shall not apply to persons who intentionally, wantonly, or willfully violate federal or state regulations in the cleanup process, including any civil or criminal penalties applicable thereto; and shall not apply to any release occurring after the date of the certification of compliance, unless the release is addressed in the department's concurrence with the certification of compliance.
The limitation of liability provided by this chapter shall extend to the heirs, assigns, and designees of the person to whom such limitation of liability is granted; provided, however, that, except as may be provided by subsection (a) or subsection (f) of Section 22-30E-9, such extension of the limitation of liability shall not operate to absolve from liability any party deemed to be a responsible person on the qualifying property. A transfer of the title to the qualifying property or any portion thereof from the applicant back to the owner from which the qualifying property was purchased, any other party deemed to be a responsible person on the qualifying property, or any person disqualified from obtaining a limitation of liability under Section 22-30E-8 shall not be eligible for the extension of the limitation of liability provided in this subsection.
Nothing in this chapter shall limit the authority of the department to take action in response to any release or threat of release of regulated substances. (Act 2001-635, p. 1225, §1.)
Beginning on August 21, 2001, the department shall compile and update as necessary an inventory of all qualifying properties for which a voluntary properties assessment plan or cleanup plan has been approved by the department. At least annually, beginning July 1, 2002, the department shall send a copy of the inventory with the properties listed by county to the clerk of each probate court of the state, who shall place and maintain the most current copy of the inventory in the room or rooms in which the deed records of the county are kept. The inventory shall be called the Voluntary Cleanup Properties Inventory. The inventory shall include all the following information:
(1) The name of the property or another description identifying the property.
(2) The location of the property.
(3) The name of the owner of the property at the time of the property's inclusion in the inventory.
(4) A general description of the voluntary property assessment plan or voluntary cleanup plan.
(5) If a property is to be cleaned up to standards less stringent than those required for unrestricted residential use, a description of the standards to which the property will be cleaned up and of any use restrictions which are imposed due to the nonresidential remediation.
Beginning August 21, 2001, the property owner of any property listed on the inventory which is designated as having been cleaned up to standards less stringent than those required for unrestricted residential use shall include the following notice in any deed, mortgage, deed to secure debt, lease, rental agreement, or other instrument given or caused to be given by the property owner which creates an interest in the property: "This property has been listed on the state's Voluntary Cleanup Properties Inventory and has been cleaned up to standards less stringent than those required for unrestricted residential use due to the presence of substances regulated under state law. Certain uses of this property may require additional cleanup. Contact the property owner or the Alabama Department of Environmental Management for further information concerning this property. This notice is provided in compliance with the Alabama Land Recycling and Economic Redevelopment Act."
Upon a written determination by the department that a property has been cleaned up to standards suitable for unrestricted residential use, the notices required by subsection (b) shall be removed from the subject property records for the property. (Act 2001-635, p. 1225, §1.)
REPEALED IN THE 2018 REGULAR SESSION BY ACT 2018-152 EFFECTIVE JUNE 1, 2018. THIS IS NOT IN THE CURRENT CODE SUPPLEMENT. (Act 2001-635, p. 1225, §1.)
Within 90 days of May 21, 2001, the department shall notify potentially affected and other interested parties to invite participation in developing the program created by this chapter, and schedule an initial meeting with them.
Upon promulgation of regulations, the department and the committee shall continue to meet at least once annually to review progress under the regulations and recommend needed changes.
Participation on the stakeholders advisory committee shall be on a voluntary basis. No salary or compensation shall be allowed any member of such committee for services thereon, and no travel, subsistence, or other expenses incurred in participating in committee activities shall be allowed. (Act 2001-635, p. 1225, §1.)
RESOLUTION; ARTICLES OF INCORPORATION; LIMITATIONS OF LIABILITY.
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 executed by the owners of all affected properties who elect to be included within the district and shall set forth in the petition, 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 all of the following: 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, 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 principal office of the district which shall be within the boundaries of the district and may be the principal 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.
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 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 this state to take acknowledgments of deeds and file the articles of incorporation in the office directed by the resolution.
(2) Upon filing the articles of incorporation, the district shall come into existence as a public corporation under the name provided in the articles of incorporation and have all authority and powers provided by this chapter. The recorded articles of incorporation shall be conclusive evidence of the legal and valid incorporation of the district in all courts.
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.
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.
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. (Act 2023-356, §2)
A brownfield redevelopment district formed and incorporated pursuant to Section 22-30E-14 shall be governed by a board of directors who shall have and exercise all power and authority of the district.
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.
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. (Act 2023-356, §2)
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 that 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. (Act 2023-356, §2)