The Department of Natural Resources and Environmental Control, Site Investigation and Restoration Section (“DNREC-SIRS”) welcomes your interest in the Brownfields Development Program. In order to participate in the Program a Brownfields Developer must enter into a Brownfields Development Agreement (“BDA”) with DNREC-SIRS. The BDA provides a description of the activities to be undertaken by the Brownfields Developer in order to investigate and remediate the release of hazardous substances at a site. In addition, the BDA addresses significant legal issues, including issues relating to liability, concerning which a prospective Brownfields Developer may desire to consult legal counsel. This is DNREC-SIRS’s generic BDA template. It contains language of general applicability. You are welcome to complete the BDA by supplying the specific information requested where indicated. You may propose additional language to supplement or modify the provisions of the BDA for DNREC-SIRS’s consideration. Please submit all additions and modifications in the form of a “blackline” draft indicating any additions by underlining and any deletions by striking through the relevant text. All changes to the BDA template, including merely filling in the requested information where indicated, must be approved by DNREC-SIRS before a final signature draft is prepared for execution by the parties. Please DO NOT submit a signed BDA without the prior approval of DNREC-SIRS. This BDA will not be deemed finalized until approved by DNREC-SIRS and executed by the SIRS Administrator. Thank you for your cooperation.
DRAFT
DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL OF THE STATE OF DELAWARE
BROWNFIELDS DEVELOPMENT AGREEMENT
This Brownfields Development Agreement (“Agreement” or “BDA”) regarding the [SITE NAME (DE#)] (“Site”) is made and entered into pursuant to the Delaware Hazardous Substance Cleanup Act (“HSCA”), 7 Del. C. Chapter 91, by and between the Department of Natural Resources and Environmental Control ("DNREC") and [NAME] ("Brownfields Developer"), [ADDRESS], a [ORGANIZATIONAL DESCRIPTION] organized under the laws of [STATE OF INCORPORATION/DOMICILE] (collectively referred to as the “Parties”). The property that is the subject of this Agreement is located at [ADDRESS] and is further identified as [COUNTY] tax parcel number [NUMBER] (“Property”).
INTRODUCTION
The Parties agree to undertake all actions required by the terms and conditions of this Agreement. The purpose of this BDA is to set forth a scope and schedule of activities at a certified brownfield to assess and respond to the actual, threatened, or perceived release of hazardous substances at the Site. In addition, this Agreement is intended to settle and resolve the potential liability of Brownfields Developer for the Existing Environmental Condition at the Site which might otherwise result under HSCA if and when Brownfields Developer becomes the owner and/or operator of the Property. By entering into this Agreement, the Parties acknowledge that Brownfields Developer will be afforded liability protection as set forth in 7 Del. C. § 9105(f) and § 9125 under the conditions specified therein.[1]
I. BACKGROUND/FINDINGS
1. By letter from ____________________, Brownfields Administrator to ___________________ dated ____________, attached hereto as Exhibit 1, DNREC has determined that the Property is a certified brownfield as defined in 7 Del. C. § 9123(3).
2. [NAME OF CURRENT OWNER] is the current owner of the Property.
3. Brownfields Developer is interested in conducting investigations and/or development at the Property.
4. Brownfields Developer’s entry into this Agreement, and the actions undertaken by Brownfields Developer in accordance with the Agreement, do not constitute an admission of liability on the part of Brownfields Developer.
II. DEFINITIONS
5. Unless otherwise provided herein, terms used in this Agreement that are defined in HSCA or the Regulations Governing Hazardous Substance Cleanup (“Regulations”) shall have the meaning ascribed to them in HSCA or the Regulations, including any amendments thereto, as of the date of this Agreement.
6. “Brownfields Investigation” means an evaluation that includes the assessment of an actual, threatened, or perceived release of a hazardous substance at the Site to determine the nature, extent, and impact of the actual, threatened, or perceived release, and the evaluation of the feasibility of the proposed development plan to serve as all or a portion of the remedial action.
7. "Conceptual Site Model and Sampling and Analysis Plan" (“CSM/SAP”) means a written description of activities, as issued, approved, modified, or amended by DNREC, to be performed at the Site, or any portion of the Site thereof (i.e. an operable unit), to investigate any release or imminent threat of release of any hazardous substances. There may be more than one CSM/SAP if there are multiple operable units on the Site, or if the work proceeds in a phased approach.
8. “Development Activities” means all construction and site preparation work that physically takes place on the Property involving structures or improvements of any kind, and all land disturbing activities including, but not limited to, digging, drilling, excavating, grading, clearing, earth moving, filling, or performing any subsurface work at the Site or an operable unit thereof. Development Activities do not include environmental investigations, planning, designing, or engineering work related to the Property or any physical activity performed off the Property in preparation for or related to construction or site preparation work that will occur on the Property.
9. "Existing Environmental Condition" means all known or discovered releases of hazardous substances which are found to be, or to have been, existing at or in the vicinity of the Site prior to Brownfields Developer’s entry into this Agreement including, but not limited to, those substances and conditions identified or set forth in the documents attached hereto as Exhibit 2.
10. “Facility Evaluation” means an investigation to identify a release of a hazardous substance and to generate data to perform an initial screening and make a decision regarding future action at the Site.
11. “Feasibility Study” means an evaluation to identify the potential remedial alternatives that are applicable to satisfy the remedial action objectives for the Site.
12. “Final Plan of Remedial Action” (“Final Plan”) means DNREC’s written determination of the appropriate remedial action at the Site for the current or anticipated land use issued for the protection of public health, welfare and the environment in accordance with HSCA, the Regulations, and all applicable DNREC guidance, policies and procedures.
13. “Long-term Stewardship Activities” (“LTS Activities”) mean activities involving the long-term management of environmental media at the Site that are necessary to protect human health and the environment. LTS Activities generally include the establishment and maintenance of physical and legal controls, implementation entities, authorities, accountability mechanisms, information and data management systems and/or resources that are necessary to ensure that the Site remains protective of public health or welfare and the environment. LTS Activities also include all operations and maintenance and monitoring activities, as approved or modified by DNREC, that are required or authorized by the Final Plan.
14. “The Parties” means DNREC and Brownfields Developer.
15. “Proposed Plan of Remedial Action” (“Proposed Plan”) means a written plan, issued by the Department for public comment, describing the appropriate remedial action at the Site for the current or anticipated land use to protect public health, welfare or the environment.
16. "Property" means the property located at [Address], encompassing approximately _______ acres, and further identified as [New Castle/Kent/Sussex] County tax parcel number ___________, as depicted on Exhibit 3 attached hereto.
17. "Remedial Action Work Plan" means a written description of remedial action requirements as set forth in the Final Plan of Remedial Action, as issued, approved, modified, or amended by DNREC, to be performed at the Site, or any operable unit thereof, to implement the Final Plan to address the release of hazardous substances. There may be more than one Remedial Action Work Plan if there are multiple operable units on the Site, or if the work proceeds in a phased approach.
18. “Site” means the Property and all other areas where hazardous substances released at or from the Property have migrated to or otherwise come to be located, and is known as the [SITE NAME (DE#)].
19. “Site Use Activities” means all physical use of the Property for industrial, commercial, residential, agricultural or recreational activities.
III. GENERAL PROVISIONS AND PROCEDURES FOR REMEDIAL WORK
20. It is the intent of the Parties that Brownfields Developer be able to conduct investigations, remedial actions and/or Development Activities in accordance with this Agreement and all applicable work plans and the Final Plan without becoming liable pursuant to HSCA for any Existing Environmental Condition at the Site. In furtherance thereof, the Parties acknowledge that all investigations, remedial actions and Development Activities on the Property undertaken by Brownfields Developer must be performed in accordance with this Agreement, all applicable work plans and the Final Plan (including any amendments and/or modifications to said documents).
21. Prior to DNREC’s issuance of a Final Plan for the Site or an operable unit thereof, Development Activities are not permitted on the Property. Notwithstanding the foregoing, before issuance of a Final Plan, upon Brownfields Developer’s written request, DNREC may permit specified Development Activities to occur pursuant to an approved Contaminated Materials Management Plan or otherwise if it determines that the proposed Development Activities will not pose a threat to public health, welfare or the environment, will not cause an exacerbation of the Existing Environmental Condition, will not cause or threaten to cause a new release, and will not interfere with any remedy that has been, is being, or will be performed on the Site. Following issuance of the Final Plan, Development Activities are permitted provided they conform to the conditions and requirements of the Final Plan and any applicable Contaminated Materials Management Plan approved by DNREC and do not otherwise violate the provisions of this Agreement.
22. Upon obtaining DNREC’s approval to begin Development Activities, if Brownfields Developer proceeds with development of the Property, or any portion thereof, it will perform the Development Activities in accordance with all applicable work plans and the Final Plan. In addition, Brownfields Developer agrees to reimburse DNREC’s Oversight Costs in accordance with Section VII of this Agreement and DNREC’s HSCA Policy on Brownfields Grants and the Brownfields Grant Eligible Expenses Guidance.
23. After conducting a DNREC approved Facility Evaluation or Brownfields Investigation, if Brownfields Developer elects not to proceed with any Development Activities on the Property, it shall not be required to implement the Final Plan, and shall continue to receive liability protection consistent with the provisions of 7 Del. C. § 9125 and this Agreement.
24. In the event Brownfields Developer fails to conduct a DNREC approved Facility Evaluation or Brownfields Investigation of the Site within twenty-four (24) months of entering into this Agreement, DNREC shall revoke this BDA and withdraw the liability protection afforded by 7 Del. C. § 9125(a).
25. If Brownfields Developer undertakes Development Activities on a portion of the Property, or begins, but then halts Development Activities on some portion or portions of the Property, it shall not be required to implement any applicable work plans or undertake remedial actions set forth in the Final Plan on those portions of the Property upon which Development Activities were not begun or were halted. In such a case, Brownfields Developer shall continue to receive liability protection consistent with the provisions of 7 Del. C. § 9125 and this Agreement; provided, however, as to those portions of the Property upon which Development Activities were begun but then halted, Brownfields Developer shall mitigate any exacerbation of any Existing Environmental Condition, and shall remediate any new releases of hazardous substances or any imminent threats of new releases that are not an Existing Environmental Condition that may have resulted from the Development Activities. For the purpose of this Paragraph, the mitigation of any exacerbation of any Existing Environmental Condition shall be considered accomplished if that portion of the Property has been returned to substantially the same condition as existed prior to the beginning of the Development Activities thereon.
26. Upon completion of all investigations, remedial actions, and any Development Activities at the Site, or any operable unit thereof, and upon written application to DNREC by Brownfields Developer, DNREC will issue a Certification of Completion of Remedy (“COCR”) for the Site, or the applicable operable unit, provided that all of the required work was satisfactorily performed and completed in compliance with the requirements of 7 Del. C. § 9108 and § 13.1 of the Regulations. Upon issuance of the COCR, Brownfields Developer will receive liability protection consistent with the provisions of 7 Del. C. § 9125 and § 9105(f). DNREC reserves the right to withhold issuance of a COCR until all Oversight Costs are paid as required in Section VII of this Agreement.
27. If Brownfields Developer knowingly violates any terms of this Agreement, it shall be liable for all litigation and enforcement costs incurred by DNREC in its efforts to obtain compliance. Further, DNREC may, in its sole discretion, revoke this Agreement, require Brownfield Developer to reimburse any funds provided to it by DNREC pursuant to Section VII of this Agreement, and take any additional actions DNREC deems necessary to protect public health, welfare or the environment.
IV. CONCEPTUAL SITE MODEL AND SAMPLING AND ANALYSIS PLAN
AND REMEDIAL ACTION WORK PLAN
28. Prior to performing a Facility Evaluation or a Brownfields Investigation at the Site, Brownfields Developer shall develop a Facility Evaluation Work Plan or a CSM/SAP. These Plans shall describe the activities that will be required to document and address any release or imminent threat of release of hazardous substances at the Site. Specifically, the Facility Evaluation Work Plan and/or the CSM/SAP, at a minimum, shall include the following:
a. conceptual plans for the proposed development project;
b. the nature and scope of the Facility Evaluation and/or Brownfields Investigation to be performed on the Site or any operable unit thereof; and
c. a proposed schedule for the investigation of the Site or any operable unit thereof.
29. After the Brownfields Investigation is completed and approved, DNREC may require Brownfields Developer to prepare a Feasibility Study for its review and approval. If DNREC determines that a Feasibility Study is unnecessary, it will issue a Proposed Plan of Remedial Action (“Proposed Plan”) for the Site, or any operable unit thereof. The Proposed Plan must satisfy the requirements of HSCA, the Regulations and all applicable DNREC guidance, policies, and procedures. DNREC will advertise the Proposed Plan for public comment as required by HSCA.