For 18 years, the North Carolina Brownfields Program has afforded developers a liability shield, “risk-based” cleanups, and tax incentives to encourage the redevelopment of contaminated properties. The NC Legislature has tinkered minimally with the program over the years, but this last legislative session ended with an important relaxation of the eligibility criteria.
Until now, to qualify for the Brownfields program, a would-be “Prospective Developer” has had to show “a bona fide, demonstrable desire to either buy or sell a brownfields property for the purpose of developing or redeveloping that brownfields property and [that it] did not cause or contribute to the contamination at the brownfields property.” N.C.G.S. § 130A-310.31(b). Now, the General Assembly has removed the must-desire-to-buy-or-sell criterion, so that a candidate who didn’t “cause or contribute” to the site’s contamination need only evidence a desire to develop/redevelop the site in question. That will render eligible owners of contaminated land who simply want to redevelop the site without selling it. That final, “loosening” outcome represents a sea change from what was under consideration earlier in the session. The original form of the bill (House Bill 765) would have greatly complicated the eligibility process (and left any number of applicants by the wayside).
The amendment passed by the legislature at the end of the session instead opens the BF program to potentially more applicants. As amended, N.C.G.S. § 130A-310.31(b)(10) provides: “‘Prospective developer’ means any person with a bona fide, demonstrable desire to
either buy or sell a brownfields property for the purpose of developing or redeveloping develop or redevelop a brownfields property and who did not cause or contribute to the contamination at the brownfields property.” Assuming the Governor signs the bill (House Bill 765), the change will become effective December 1, 2015.
Under the law as it previously read, many would-be Prospective Developers have been frustrated by the buy-or-sell criterion. They owned the land in question, did not pollute it, and wanted to get out from under the tangled web of cleanup laws while at the same time restoring the land to valuable use. Now those floodgates have been opened and “innocent” owners of contaminated property who desire to redevelop it can enter the Brownfields program. With its risk-based cleanup standards often requiring nothing more than land use restrictions, protection from further regulatory action (upon completion of required work at the site), and property tax breaks, this new amendment to the Brownfields Property Reuse Act allows for an important expansion of the universe of parties eligible to enter the program.
Our firm, which includes the attorney who created the Brownfields Program’s legal framework and was its sole counsel for its first 15 years, would be glad to help parties who think they may qualify navigate the Brownfields process, the rewards of which are plentiful.