Section 29A: Brownfields Redevelopment Fund
Section 29A. (a) There is hereby established and placed within the Massachusetts Development Finance Agency, referred to in this section as the agency, the Brownfields Redevelopment Fund, referred to in this section as the fund, into which shall be credited:
(1) any appropriations or other monies authorized by the general court and specifically designated to be credited to the fund;
(2) fees authorized by subsection (h);
(3) grants, gifts or any other monies directed to the fund; and
(4) any income derived from an investment of amounts credited to the fund.
(b) As used in this section the following words shall have the following meanings unless the context clearly requires otherwise:
"Environmental cleanup action'', activities including, but not limited to, environmental site assessments undertaken to contain or remove from land or structures, oil or hazardous material as defined in chapter 21E and regulations promulgated pursuant thereto, in compliance with all applicable laws.
"Environmental site assessment'', activity undertaken in compliance with the applicable laws to determine: (i) the existence, source, nature and extent of a release or threat of release of oil or hazardous materials; or (ii) the extent of danger to the public health, safety, welfare and the environment.
"Loan'', a loan or credit enhancement including, but not limited to a loan guarantee, letter of credit or insurance.
"Project site'', a vacant, abandoned or underutilized industrial or commercial property where real or perceived environmental contamination and liability is an obstacle to the redevelopment or improvement of such property.
"Priority project'', a project eligible for funding under this section as to which the municipality in which the site of such project is located has made, or will make, available substantial funds in the form of grants, loans or abated property taxes for such site, in furtherance of the purposes of this section and as to which the agency has designated such project as a priority project.
"Site'', a place or area where oil or hazardous material has been released, as further defined in section 2 of chapter 21E.
(c) The agency shall hold the fund in an account segregated from other agency funds and accounts and shall utilize, invest or reinvest the proceeds of the fund and income derived therefrom for the following general purposes:
(1) to encourage economic development in the commonwealth by providing loans and grants to finance environmental site assessments and environmental cleanup actions;
(2) to defray costs incurred in the administration of the fund, as provided in subsections (g) and (h) and in the fund guidelines; and
(3) to purchase with funds not immediately required for use pursuant to clauses (1) and (2), such securities as may be lawful investments for fiduciaries in the commonwealth.
(d) The agency may make and administer grants and loans to finance environmental site assessments and environmental cleanup actions provided that:
(1) the project is located at a project site;
(2) 30 per cent of all funds administered provide grants and loans to finance environmental site assessments;
(3) an applicant shall transfer the results of the environmental assessment to the regional office of the department of environmental protection if such applicant does not proceed with development of the project for which the project site was assessed with loan monies from the fund;
(4) no single project, other than a priority project, shall receive a grant or loan to conduct environmental cleanup actions which shall exceed $750,000 of the assets of the fund;
(5) no single project, other than a priority project, shall receive a grant or loan to conduct environmental site assessments which shall exceed $250,000 of the assets of the fund;
(6) no single priority project shall represent a commitment of more than $2,000,000 of the assets of the fund;
(7) no loan made hereunder shall be utilized to finance all of the costs required to complete the response action at a project site, the required match to be set forth in the fund guidelines, except that the required match may be waived in whole or in part by the agency;
(8) no grant shall be awarded unless and until the applicant for such grant contributes an amount equal to 20 per cent of the grant for which such applicant has applied; provided, however, that the required contribution may be in the form of in-kind services or other non-cash contribution as the agency may determine in its reasonable discretion;
(9) no loan or grant shall be made for an environmental site assessment or environmental cleanup action eligible for funding under chapter 21J;
(10) security for loans made hereunder may be subordinate to private or other financing provided for the site acquisition, cleanup or development of the project site;
(11) grants shall be provided only to a city or town, redevelopment authority, redevelopment agency, economic development and industrial corporation, community development corporation, economic development authority or a non-profit entity in connection with a project that has a demonstrable public benefit; provided, however, that the agency shall establish guidelines for non-profit eligibility; and
(12) preference shall be given to projects located within 1 mile of an environmental justice population as defined in section 62 of chapter 30.
(e) To be eligible for financial assistance from the fund, in addition to the requirements in subsection (d), the applicant and project shall meet the following requirements and the applicant shall submit to the brownfields advisory group and the agency, for the agency's final approval, a completed application providing all information required herein and by the fund guidelines, including:
(1) the proposed redevelopment project will result in a significant economic impact in terms of the number of jobs to be created or will contribute to the economic or physical revitalization of the area in which the project site is located and a significant level of community benefits shall be associated with the project;
(2) if the applicant is requesting financing for environmental cleanup action costs, assistance from the fund shall be necessary to make the proposed reuse of the project site financially feasible;
(3) the applicant shall certify that he: (i) would be liable solely pursuant to clause (1) of paragraph (a) of section 5 of chapter 21E; (ii) did not cause or contribute to the release of oil or hazardous material at the site; (iii) did not own or operate the site at the time of the release; and (iv) does not have a familial relationship or a direct or indirect business relationship, other than that by which the applicant's interest in such property is to be conveyed or financed, with another party that is potentially liable under said chapter 21E with regard to the project site; provided, however, that the provisions of this subclause may be waived with the approval of the board of directors of the agency after full disclosure by the applicant of the familial or business relationship with a potentially responsible party; and
(4) the applicant is not subject to any outstanding administrative or judicial environmental enforcement action unless the applicant has entered into an agreement with the department of environmental protection or the attorney general to resolve such enforcement action with respect to the property under consideration for assistance from the fund and with respect to any other properties located within the commonwealth for which the applicant is liable pursuant to chapter 21E.
(f) In evaluating an application for financing from the fund, the brownfields advisory group and the agency shall review each applicant's redevelopment project and the brownfields advisory group shall make advisory recommendations to the agency. The agency shall take into consideration the following factors:
(1) the level of unemployment and poverty in the municipality and in the census tract, if any, within the municipality in which the project site is located;
(2) the likelihood that the proposed response action will be adequate to clean up the property in accordance with the requirements of all applicable laws;
(3) the presence of community benefits associated with the project including, without limitation, the creation or revitalization of open space;
(4) the proximity of the property to existing transportation and utility infrastructure appropriate to support the proposed reuse of the project site;
(5) whether the project site is located in an area designated as a federal empowerment zone or enterprise community pursuant to 42 U.S.C. section 11501 et seq; and
(6) whether the municipality in which the site of such project is located has made available substantial funds, in the form of grants, loans, or abated property taxes for said site, in furtherance of the purposes of this section.
(g) The agency shall not be liable under chapter 21E for any claim, loss, cost, damage or injury of any nature whatsoever arising in connection with its administration of the fund and the environmental condition of the eligible property unless such loss, cost, injury or damage is caused by the gross negligence or willful misconduct of the agency, its officers, directors, employees or agents and their actions cause or contribute to the contamination of the property or exposure to the contaminants. Neither the provision of a loan or grant nor the failure to provide a loan or grant to an applicant shall be considered a basis of liability for the agency.
(h) The agency may charge fees for defraying the ordinary and necessary expenses of administration and operation associated with the fund. All fees received hereunder shall be deposited into the fund.
(i) Except as otherwise provided, the agency shall have full power to manage its loans, grants and business affairs in connection with the fund.
(j) Prior to approving a loan or grant hereunder, the agency shall, with the advice of the brownfields advisory group, promulgate regulations which shall provide the definitions and procedures required hereunder and set forth the terms, procedures and standards which the agency shall employ to process applications, make lending decisions, safeguard the fund and accomplish the purposes of the fund.
(k) On March 15, 1999 and each year thereafter, the agency shall file, in writing, a report to the governor, the attorney general, the commissioner of environmental protection and the clerks of the house of representatives and the senate who shall forward the same to the president of the senate, the speaker of the house of representatives and the chairmen of the house and senate committees on ways and means. Such report shall include financial statements related to the effectiveness of the fund based on the following criteria, as applicable:
(i) the number of projects assisted through the fund, with a specification of the amount of loan or grant awarded to each;
(ii) the manner in which such projects contribute to the economic and physical revitalization of the areas in which the projects are located and a description of steps taken by the agency to make the application process efficient and manageable; and
(iii) such other information that would provide a fair evaluation of the program.
[ Subsection (l) effective until May 30, 2023. For text effective May 30, 2023, see below.]
(l) There shall be established within the agency a brownfields advisory group. The brownfields advisory group shall be comprised of the following 13 members who shall serve for two year terms: the secretary of housing and economic development or the secretary's designee, the commissioner of environmental protection or his designee and the attorney general or his designee. In addition, the speaker of the house of representatives shall appoint the following five brownfields advisory group members: a hazardous waste site cleanup professional as defined in section 19 of chapter 21A, two representatives of community development corporations, a representative from a municipality and a representative from the lending community. The president of the senate shall appoint the following five brownfields advisory group members: a member of a community-based organization concerned with brownfields redevelopment, a representative from the land use and development community, a member from an environmental advocacy organization, a representative from a municipality and a member of the agency board of directors. The chair of the brownfields advisory group shall be elected by members of said advisory group. For action to be taken by the advisory group, a majority of members shall be present. The director of the office of brownfields revitalization shall serve in an advisory capacity to the brownfields advisory group.
[ Subsection (l) as amended by 2023, 7, Sec. 127 effective May 30, 2023. See 2023, 7, Sec. 298. For text effective until May 30, 2023, see above.]
(l) There shall be established within the agency a brownfields advisory group. The brownfields advisory group shall be comprised of the following 13 members who shall serve for two year terms: the secretary of economic development or the secretary's designee, the commissioner of environmental protection or his designee and the attorney general or his designee. In addition, the speaker of the house of representatives shall appoint the following five brownfields advisory group members: a hazardous waste site cleanup professional as defined in section 19 of chapter 21A, two representatives of community development corporations, a representative from a municipality and a representative from the lending community. The president of the senate shall appoint the following five brownfields advisory group members: a member of a community-based organization concerned with brownfields redevelopment, a representative from the land use and development community, a member from an environmental advocacy organization, a representative from a municipality and a member of the agency board of directors. The chair of the brownfields advisory group shall be elected by members of said advisory group. For action to be taken by the advisory group, a majority of members shall be present. The director of the office of brownfields revitalization shall serve in an advisory capacity to the brownfields advisory group.
(m) The agency shall give a priority to those project sites that are considered by the ombudsman and the secretary of housing and economic development to be of substantial economic benefit to the community and which will result in the creation or retention of jobs for that community.
(n) The brownfields advisory group shall advise the agency in establishing guidelines pursuant to subsection (j). The brownfields advisory group shall convene on a monthly basis in order to review actions taken by the agency with respect to the fund and to make any advisory recommendations with respect thereto and, further, shall assist in producing the report required by subsection (k). Subsection (d), subsections (f) to (i), inclusive, and subsection (l) of section 2 shall also apply to the members and affairs of the brownfields advisory group.
(o) The brownfields advisory group shall nominate a total of three candidates for the position of director of the office of brownfields revitalization who shall serve as the brownfields ombudsman as defined in section 19 of chapter 21E. The governor may appoint one of the three nominated candidates or select a candidate of his choice to serve as director of the office of brownfields revitalization.