Environmental Law Matters

This week a bill was introduced in the Alabama Legislature which would expand the state’s Brownfield Redevelopment and Voluntary Cleanup Program through the implementation of new features aimed to increase participation in the Program, thereby returning more brownfields to productive use and enhancing economic growth. Key features of the proposed amendments to the Alabama Land Recycling and Economic Redevelopment Act include the following.

Allowing Potentially Responsible Persons to be Entitled to Certain Liability Protections Through Voluntary Cleanup Program Participation

Under current law, persons who may have contributed to contamination at a property receive only limited liability protection for their participation in the Voluntary Cleanup Program, which has seemingly led to their low participation rates. The proposed amendments would allow potentially responsible persons to tailor their assessment and remediation activities to the property’s needs, with the associated liability protections covering only what is addressed through the Program. Upon Program completion, potentially responsible parties may be eligible to receive protection from claims by subsequent owners, adjoining landowners, and ADEM, as well as certain third-party claims. Proponents of the legislation believe that enhancing the amount of liability protection available to potentially responsible persons will incentivize them to make use of the Program, which will in turn increase the remediation of properties and likewise increase the availability of land for economic development.

Creating a Brownfield Remediation Reserve Fund to Assist in Costs Associated with Remediating Certain Brownfields

Properties that participate in the Voluntary Cleanup Program are remediated to the then-applicable regulatory standards. Over time, the use of a remediated property or the applicable regulatory standards can change, which may lead to the need for additional assessment and/or remedial work. To provide future owners with assurance that they will be protected against these types of unforeseen circumstances, the legislation would establish a Brownfield Remediation Reserve Fund, which will be funded through “per acre” fees paid by participating responsible persons. Funds would only be available to future owners of previously-remediated properties where there has been such a change of circumstances, and the funds would cover expenses associated with additional assessment and remedial work.

Proponents of the legislation are confident these changes to the Voluntary Cleanup Program will boost Program participation and overall economic growth in Alabama. Given the Legislature’s heightened focus on economic development, recognition of the need for additional available sites, and bipartisan support of the four economic incentives bills recently signed by Governor Kay Ivey, the timing of the proposed amendments may be ideal.