|
MASSACHUSETTS
Op/Ed >> Solving Complex Liability Issues Enables Projects
In his article “Leveling the Playing Field for Brownfields: An Owner’s Perspective” (Volume 8, Issue 2), Chris Olson of Atlantic Richfield argues that until incentives are in place to encourage and reward responsible companies for revitalizing underutilized and environmentally-challenged properties, brownfield redevelopment will continue to evolve slowly.
In response, I invite Mr. Olson and, more importantly, current owners of environmentally impaired property in the Commonwealth of Massachusetts to look at an innovative program designed to resolve complex liability issues, thereby enabling projects that would otherwise languish.
The Brownfields Covenant Program
Attorney General Tom Reilly’s Brownfields Covenant Program offers liability
relief that is broader in scope than that provided directly by Chapter 21E,
the state Superfund analog.
The Brownfields Covenant program can provide liability endpoints prior to completion of the cleanup, as compared with the liability relief available directly under Chapter 21E that comes only at the end of the cleanup process. A Brownfields Covenant also potentially offers relief from third party claims for property damage under both Chapter 21E as well as the common law.
Most relevant to Mr. Olson’s concerns, current owners that actually caused the contamination may be eligible for a Brownfields Covenant even though they are not otherwise eligible for such relief under Chapter 21E.
We like to say that as long as a causally-responsible party is doing the responsible thing, we can extend to them a liability endpoint they can get nowhere else. Moreover, we readily understand that, in some instances, “doing the responsible thing” can include simply selling the property to someone else more capable of and willing to meet the twin goals of cleanup and appropriate reuse.
We are involved in a number of projects with owners ranging from an individual owner to a corporate entity teetering on the verge of bankruptcy to a Fortune 500 company.
What is more, from an accounting perspective, corporate officials may now be able to secure that elusive liability endpoint so that in the future, disclosure statements may actually be able to shift that long-held environmental liability over to the asset side of the ledger.
For more information about the Attorney General’s Brownfields Covenant program visit our website at www.ago.state.ma.us or contact me at 617-727-2200 x2436.
Jim Farrell is brownfields unit chief for the Commonwealth of Massachusetts
Attorney General’s Office.