THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY WONDERLING, M. WHITE, MUSTO, ERICKSON, ORIE, ROBBINS, FONTANA, KASUNIC, BOSCOLA, GORDNER, RAFFERTY, FERLO, ALLOWAY, TARTAGLIONE, EARLL, BRUBAKER, O'PAKE, PIPPY, COSTA, BROWNE AND WAUGH, MAY 27, 2009

REFERRED TO ENVIRONMENTAL RESOURCES AND ENERGY, MAY 27, 2009  

AN ACT

Providing for reimbursement to developers of brownfield sites;

authorizing the Secretary of Environmental Protection to

enter into redevelopment agreements; and establishing the

Brownfield Site Reimbursement Fund.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Short title.

This act shall be known and may be cited as the Brownfields

Redevelopment Act.

Section 2.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Brownfield" or "brownfield site."  Real property, the

expansion, redevelopment or reuse of which may be complicated by

the presence or potential presence of a hazardous substance,

pollutant or contaminant. The term includes properties impacted

by mining activities conducted prior to the effective date of

this section.

"Contaminant."  An element, substance, compound or mixture

which is defined as a pollutant or contaminant pursuant to the

Comprehensive Environmental Response, Compensation, and

Liability Act of 1980 (Public Law 96-510, 94 Stat. 2767). The

term shall not include an element, substance, compound or

mixture from a coal mining operation under the jurisdiction of

the Department of Environmental Protection or from a site

eligible for funding under Title IV of the Surface Mining

Control and Reclamation Act of 1977 (Public Law 95-87, 30 U.S.C.

§ 1201 et seq.); nor shall the term include natural gas, natural

gas liquids, liquefied natural gas or synthetic gas usable for

fuel or mixtures of natural gas and synthetic gas usable for

fuel, except for the purposes of an emergency response. The term

shall also not include the following wastes generated primarily

from the combustion of coal or other fossil fuels for the

production of electricity: slag waste; flue gas emission control

waste; and fly ash waste and bottom ash waste which are disposed

of or beneficially used in accordance with the act of July 7,

1980 (P.L.380, No.97), known as the Solid Waste Management Act,

and the regulations promulgated thereto or which have been

disposed of under a valid permit issued pursuant to any other

environmental statute.

"Developer."  An individual, corporation, partnership, sole

proprietorship, firm, enterprise, franchise, association,

organization, holding company, joint stock company,

receivership, trust or any legal entity organized for profit

that is engaged in a redevelopment project under this act.

"Fund."  The Brownfield Site Reimbursement Fund established

in section 7.

"Land Recycling and Environmental Remediation Standards Act."

The act of May 19, 1995 (P.L.4, No.2), known as the Land

Recycling and Environmental Remediation Standards Act.

"Person."  An individual, firm, corporation, association,

partnership, consortium, joint venture, commercial entity,

authority, nonprofit corporation, interstate body or other legal

entity which is recognized by law as the subject of rights and

duties. The term includes the Federal Government, State

government, political subdivisions and Commonwealth

instrumentalities.

"Redevelopment agreement."  An agreement between the

Commonwealth and a developer under which the developer agrees to

perform any work or undertaking necessary for the remediation of

a brownfield site located at the site of a redevelopment project

and for the clearance, development or redevelopment,

construction or rehabilitation of any structure or improvement

of commercial, industrial or public structures or improvements

within an area of land whereon a brownfield site is located and

the Commonwealth agrees that the developer shall be eligible for

the reimbursement of up to 75% of the remediation costs of the

brownfield site from the Commonwealth.

"Redevelopment project."  The term shall have the same

meaning given to it under section 3 of the act of May 24, 1945

(P.L.991, No.385), known as the Urban Redevelopment Law.

"Regulated substance."  The term shall include hazardous

substances and contaminants regulated under the act of October

18, 1988 (P.L.756, No.108), known as the Hazardous Sites Cleanup

Act, and substances covered by the act of June 22, 1937

(P.L.1987, No.394), known as The Clean Streams Law, the act of

January 8, 1960 (1959 P.L.2119, No.787), known as the Air

Pollution Control Act, the act of July 7, 1980 (P.L.380, No.97),

known as the Solid Waste Management Act, the act of July 13,

1988 (P.L.525, No.93), referred to as the Infectious and

Chemotherapeutic Waste Law, and the act of July 6, 1989

(P.L.169, No.32), known as the Storage Tank and Spill Prevention

Act.

"Release."  Spilling, leaking, pumping, pouring, emitting,

emptying, discharging, injecting, escaping, leaching, dumping or

disposing of a regulated substance into the environment in a

manner not authorized by the Department of Environmental

Protection. The term includes the abandonment or discarding of

barrels, containers, vessels and other receptacles containing a

regulated substance.

"Remediation" or "remediate."  Any necessary action to

investigate and clean up or respond to a known, suspected or

threatened discharge of contaminants, including, as necessary,

the preliminary assessment, site investigation, remedial

investigation and remedial action. The term shall also include

postconstruction measures that address storm water mitigation

caused by preexisting activities at the brownfield site.

"Remediation costs."  All reasonable costs associated with

the remediation of a brownfield site regardless of when

remediation occurs. The term does not include any costs incurred

in financing a remediation.

"Remediation standards."  The remediation standards available

under the act of May 19, 1995 (P.L.4, No.2), known as the Land

Recycling and Environmental Remediation Standards Act.

"Responsible person."  The term shall have the same meaning

given to it in the act of October 18, 1988 (P.L.756, No.108),

known as the Hazardous Sites Cleanup Act, and shall include a

person subject to enforcement actions for substances covered by

the act of June 22, 1937 (P.L.1987, No.394), known as The Clean

Streams Law, the act of January 8, 1960 (1959 P.L.2119, No.787),

known as the Air Pollution Control Act, the act of July 7, 1980

(P.L.380, No.97), known as the Solid Waste Management Act, the

act of July 13, 1988 (P.L.525, No.93), referred to as the

Infectious and Chemotherapeutic Waste Law, and the act of July

6, 1989 (P.L.169, No.32), known as the Storage Tank and Spill

Prevention Act.

"Secretary."  The Secretary of Environmental Protection of

the Commonwealth.

"Site."  The extent of contamination originating within the

property boundaries and all areas in close proximity to the

contamination necessary for the implementation of remediation

activities to be conducted under this act.

"Treatment."  The term shall have the same meaning as given

to it in the act of October 18, 1988 (P.L.756, No.108), known as

the Hazardous Sites Cleanup Act.

Section 3.  Terms and conditions of agreements.

(a)  Authorization.--

(1)  Notwithstanding any other provision of law, or rule

or regulation adopted pursuant thereto, to the contrary, a

developer may enter into a redevelopment agreement with the

secretary pursuant to the provisions of this section.

(2)  The secretary may not enter into a redevelopment

agreement with a developer who has caused or contributed to

the release of contaminants at the site proposed to be in the

redevelopment agreement.

(3)  The decision whether or not to enter into a

redevelopment agreement is solely within the discretion of

the chief executive officer of the developer and the

secretary.

(b)  Negotiation and contents of agreement.--

(1)  The secretary and the Secretary of Community and

Economic Development, in consultation with the Department of

Revenue, shall negotiate the terms and conditions of any

redevelopment agreement on behalf of the Commonwealth.

(2)  The redevelopment agreement shall specify the amount

of the reimbursement to be awarded the developer, the

frequency of payments and the length of time in which that

reimbursement shall be granted.

(3)  In no event shall the amount of the reimbursement,

when taken together with any property tax exemption received,

less any payment in lieu of taxes made pursuant to any

Federal, State, local tax incentive or grant to remediate a

site, exceed 75% of the total cost of the remediation.

(c)  Standard for approval of agreement.--The secretary may

only enter into a redevelopment agreement if the secretary finds

that the State tax revenues to be realized from the

redevelopment project will be in excess of the amount necessary

to reimburse the developer. This finding may be made by an

estimation based upon the professional judgment of the

secretary, in consultation with the Department of Revenue.

(d)  Condition for and amount of reimbursement.--

(1)  The percentage of each payment to be made to the

developer pursuant to a redevelopment agreement shall be

conditioned on the occupancy rate of the residential dwelling

units, buildings or other work areas located on the

brownfield site.

(2)  The redevelopment agreement shall provide for the

payments made in order to reimburse the developer to be in

the same percentages as the occupancy rate at the brownfield

site, except that upon the attainment of a 90% occupancy

rate, the developer shall be entitled to the entire amount of

each payment toward the reimbursement as set forth in the

redevelopment agreement.

(3)  If the redevelopment of the property is performed in

phases, then the redevelopment agreement shall provide for

the payments to reimburse the developer to commence prior to

the completion of the redevelopment at the entire site.

(4)  The redevelopment agreement shall provide that

payments to reimburse the developer be in the same

percentages as the occupancy rate of that portion of the

brownfield site for which the developer has demonstrated

achievement of one or a combination of remediation standards

under the Land Recycling and Environmental Remediation

Standards Act for regulated substances present at the

brownfield site, and on which new residential construction is

completed or a place of business is located that has

generated new tax revenues.

(5)  The redevelopment agreement shall provide for the

frequency of the secretary's finding of the occupancy rate

during the payment schedule. If a redevelopment project is

completed in phases, where a portion of the property subject

to the redevelopment agreement is generating new tax

revenues, then the redevelopment agreement shall provide for

the frequency of the secretary's finding of the occupancy

rate for each phase of the redevelopment.

Section 4.  Factors to be considered by secretary.

In deciding whether to enter into a redevelopment agreement

and in negotiating a redevelopment agreement with a developer,

the secretary shall consider the following factors:

(1)  The economic feasibility of the redevelopment

project.

(2)  The extent of economic and related social distress

in the municipality and the area to be affected by the

redevelopment project.

(3)  The degree to which the redevelopment project will

advance State, regional and local development and planning

strategies.

(4)  The likelihood that the redevelopment project shall,

upon completion, be capable of generating new tax revenue in

an amount in excess of the amount necessary to reimburse the

developer for the remediation costs incurred as provided in

the redevelopment agreement.

(5)  The relationship of the redevelopment project to a

comprehensive local development strategy, including other

major projects undertaken within the municipality.

(6)  The need of the redevelopment agreement to the

viability of the redevelopment project.

(7)  The degree to which the redevelopment project

enhances and promotes job creation and economic development.

(8)  The extent to which the developer's proposed cleanup

plan will achieve one or a combination of remediation

standards under the Land Recycling and Environmental

Remediation Standards Act.

(9)  The cost of environmental infrastructure

improvements as they relate to the overall remediation of the

brownfield property.

Section 5.  Eligibility for reimbursement.

(a)  General rule.--Notwithstanding any other provision of

law, or rule or regulation adopted pursuant thereto, to the

contrary, any developer that enters into a redevelopment

agreement may be eligible for reimbursement of up to 75% of the

costs of the remediation of the subject brownfield site pursuant

to the provisions of this section upon the commencement of a

business operation or the completion of the construction of one

or more new residences within a redevelopment project.

(b)  Application.--To be eligible for reimbursement of the

costs of remediation, a developer must submit an application, in

writing, to the secretary for review and certification of the

reimbursement.

(c)  Review of application by secretary.--

(1)  The secretary shall review the request for the

reimbursement upon receipt of an application therefor and

shall approve or deny the application for certification on a

timely basis.

(2)  The secretary shall also make a finding of the

occupancy rate of the property subject to the redevelopment

agreement in the frequency set forth in the redevelopment

agreement.

(d)  Required findings for certification of developer.--The

secretary shall certify a developer to be eligible for the

reimbursement if the secretary finds that:

(1)  Residential construction is complete or a place of

business is located in the area subject to the redevelopment

agreement that has generated new tax revenues.

(2)  The developer is diligently performing remediation

of contamination located on the site of the redevelopment

project and the developer is in compliance with the

requirements of the redevelopment agreement, the Land

Recycling and Environmental Remediation Standards Act and

other applicable environmental laws.

(3)   The costs of the remediation were actually and

reasonably incurred.

(e)  Developer certification of total remediation costs.--

When filing an application for certification for a reimbursement

pursuant to this section, the developer shall submit to the

secretary a certification of the total remediation costs

incurred by the developer for the remediation of the brownfield

site of the redevelopment project as provided in the

redevelopment agreement, information concerning the occupancy

rate of the buildings or other work areas located on the

property subject to the redevelopment agreement and such other

information as the secretary deems necessary in order to make

the certifications and findings pursuant to this section.

Section 6.  Qualification for certification of reimbursement of

remediation costs.

(a)  General rule.--To qualify for the certification of

reimbursement of the remediation costs under this act, a

developer must enter the brownfield site into the Land Recycling

and Environmental Remediation Standards Act. The remediation

costs must be incurred in accordance with a department-approved

cleanup plan under the Land Recycling and Environmental

Remediation Standards Act, or in the case of lands mined prior

to the effective date of this section, a department-approved

clean-up plan.

(b)  Duty required by developer.--Under the memorandum of

agreement or other oversight document, the developer shall agree

to perform and complete any remediation activity as may be

required by the secretary to ensure the remediation is conducted

pursuant to law.

(c)  Copies of memorandum of understanding to be provided.--

After the developer has entered into a memorandum of agreement

or other oversight document with the secretary, the secretary

shall submit a copy thereof to the developer and the

municipality in which the subject property is located.

Section 7.  Brownfield Site Reimbursement Fund.

(a)  Establishment.--

(1)  The Brownfield Site Reimbursement Fund is hereby

established as a fund in the Department of Community and

Economic Development. The moneys in the fund are hereby

appropriated, upon approval by the Governor, on a continuing

basis to the Department of Environmental Protection for the

purpose of reimbursing developers who enter into a

redevelopment agreement and are certified for reimbursement

pursuant to this act.

(2)  The State Treasurer shall establish a special

account within the fund for each developer upon approval of a

certification pursuant to this act.

(b)  Source of funding.--(Reserved).

Section 8.  Reimbursement of remediation costs.

(a)  Reimbursement.--The secretary shall reimburse the

developer, from the special account established in the fund, the

amount of the remediation costs agreed upon in the redevelopment

agreement upon issuance of the certification by the secretary.

(b)  Periodic payments.--The developer shall be entitled to

periodic payments from the fund in an amount, in the frequency

and over the time period as provided in the redevelopment

agreement.

Section 9.  Updated remediation costs to be provided to

secretary.

(a)  General rule.--A developer shall submit to the secretary

updated remediation costs actually incurred by the developer for

the remediation of the brownfield site of the redevelopment

project as provided in the redevelopment agreement. The

reimbursement authorized pursuant to this act shall continue

until such time as the aggregate dollar amount of the agreed-

upon reimbursement is reached. To remain entitled to the

reimbursement authorized pursuant to this section, the developer

shall perform and complete all remediation activities as may be

required pursuant to the memorandum of agreement or other

oversight agreement entered into with the secretary. The

secretary may review the remediation costs incurred by the

developer to determine if they are reasonable.

(b)  Costs eligible for reimbursement.--Reimbursable

remediation costs shall include costs that are incurred in

preparing the area of land on which the brownfield site is

located for remediation and may include costs of dynamic

compaction of soil necessary for the remediation.

(c)  Taxes eligible for reimbursement.--Reimbursable

remediation costs shall also include the following taxes:

(1)  The corporate net income tax as established in

section 402 of the act of March 4, 1971 (P.L.6, No.2), known

as the Tax Reform Code of 1971.

(2)  The capital stock and franchise tax as established

in section 602 of the Tax Reform Code of 1971.

Section 10.  Effective date.

This act shall take effect in 60 days.