MISSISSIPPI LEGISLATURE

1998 Regular Session

To: Conservation and Water Resources; Appropriations

By: Representative Ellington

House Bill 1521

AN ACT TO CREATE THE MISSISSIPPI BROWNFIELDS VOLUNTARY CLEANUP AND REDEVELOPMENT ACT; TO EXPRESS THE FINDINGS OF THE LEGISLATURE; TO DEFINE CERTAIN TERMS; TO AUTHORIZE THE COMMISSION ON ENVIRONMENTAL QUALITY TO ENTER INTO AND MODIFY A BROWNFIELD AGREEMENT AND TO SPECIFY THE APPLICATION AND APPROVAL PROCESS FOR A BROWNFIELD AGREEMENT; TO REQUIRE A BROWNFIELD PARTY TO MAKE CERTAIN DEMONSTRATIONS IN ITS APPLICATION; TO PROVIDE FOR AN APPEAL OF THE COMMISSION ON ENVIRONMENTAL QUALITY'S DECISION NOT ENTER INTO AN AGREEMENT; TO PROVIDE FOR THE CONTENTS OF A BROWNFIELD AGREEMENT, INCLUDING RISK-BASED REMEDIATION REQUIREMENTS; TO REQUIRE PUBLICATION OF A PUBLIC NOTICE OF A PROPOSED BROWNFIELD AGREEMENT AND TO ESTABLISH THE CONTENTS OF THAT NOTICE; TO AUTHORIZE THE DEPARTMENT OF ENVIRONMENTAL QUALITY TO HOLD A PUBLIC HEARING ON THE PROPOSED BROWNFIELD AGREEMENT; TO PROVIDE PENALTIES FOR FAILURE TO COMPLY WITH A BROWNFIELD AGREEMENT; TO AUTHORIZE LIABILITY PROTECTION AGAINST FURTHER SITE REMEDIATION AND COSTS UNDER CERTAIN CIRCUMSTANCES FOR BROWNFIELD PARTIES ENTERING INTO AN AGREEMENT AND CERTAIN OTHER PERSONS; TO SPECIFY CIRCUMSTANCES UNDER WHICH FURTHER REMEDIATION MAY BE REQUIRED; TO REQUIRE THE ISSUANCE OF A "NO FURTHER ACTION" LETTER BY THE EXECUTIVE DIRECTOR OF THE DEPARTMENT OF ENVIRONMENTAL QUALITY FOLLOWING COMPLETION OF THE PERFORMANCE OF THE BROWNFIELD AGREEMENT; TO PROVIDE FOR THE SALE OR CONVEYANCE OF A BROWNFIELD PROPERTY AND THE TRANSFER OF ANY OBLIGATIONS UNDER THE BROWNFIELD AGREEMENT; TO REQUIRE THE PREPARATION OF A NOTICE OF BROWNFIELD SITE AND TO DESCRIBE THE CONTENTS OF THAT NOTICE; TO REQUIRE THE BROWNFIELD PARTY TO FILE THE NOTICE OF BROWNFIELD SITE WITH THE CHANCERY CLERK OF THE SITUS COUNTY AND TO REQUIRE THE CHANCERY CLERK TO RECORD THE NOTICE IN THE GENERAL INDEX TO DEEDS AND THE SECTIONAL INDEX; TO AUTHORIZE THE CANCELLATION OF THE NOTICE OF BROWNFIELD AGREEMENT SITE AND TO SPECIFY PROCEDURES FOR RECORDING A STATEMENT OF CANCELLATION; TO PROVIDE FOR ENFORCEMENT OF A NOTICE OF BROWNFIELD AGREEMENT SITE; TO REQUIRE THE COMMISSION ON ENVIRONMENTAL QUALITY TO PROMULGATE REGULATIONS; TO PROVIDE LIMITATIONS ON THE EFFECT OF THIS ACT; TO REQUIRE A BROWNFIELD PARTY TO PAY ALL REASONABLE DIRECT AND INDIRECT COSTS OF APPLICATION PROCESSING AND AGREEMENT ADMINISTRATION BY THE DEPARTMENT OF ENVIRONMENTAL QUALITY; TO CREATE THE BROWNFIELDS CLEANUP AND REDEVELOPMENT TRUST FUND AND PROVIDE FOR ITS ADMINISTRATION; TO PROVIDE PENALTIES FOR FAILURE TO PAY COSTS; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. This act shall be known and may be cited as the "Mississippi Brownfields Voluntary Cleanup and Redevelopment Act."

SECTION 2. The Legislature finds:

(1) There are properties in Mississippi, often referred to as "brownfields", that were contaminated or were perceived to have been contaminated by past activities, but are attractive locations for redevelopment.

(2) These brownfields include agricultural, commercial and industrial properties.

(3) Brownfields development and redevelopment is impaired by the potential liability associated with the actual or perceived risk of contamination.

(4) The safe development or redevelopment of brownfields would benefit the citizens of Mississippi in many ways, including improving the tax base of local governments and creating job opportunities for citizens in the vicinity of brownfields.

(5) Owners and prospective developers and redevelopers of brownfields, local governments in which brownfields are located, and federal and state government agencies should be encouraged to provide capital and labor to improve brownfields so that the property can be determined to be safe or made safe for appropriate future use.

(6) The reduction of public health and environmental hazards on existing brownfield sites is essential to creating a better quality of life for the citizens of this state.

(7) A brownfields voluntary cleanup and redevelopment law will provide incentives for the voluntary cleanup of brownfield property without use of taxpayer funds.

SECTION 3. The following words and phrases shall have the meanings ascribed in this section unless the context clearly indicates otherwise:

(a) "Brownfield agreement" means an agreement between the commission and a brownfield party to accomplish the remediation of brownfield property that meets the requirements of this act.

(b) "Brownfield agreement site" means brownfield property that is remediated under a brownfield agreement. The property shall consist of the proposed brownfield property and any contiguous brownfield property that contains environmental contamination (i) the source of which is environmental contamination or activities on or under the proposed brownfield property and (ii) concerning which the commission determines that remediation is necessary.

(c) "Brownfield party" means any person who desires to execute and implement a brownfield agreement, including but not limited to, the record owner of the brownfield agreement site, a person who desires to either buy or sell the brownfield agreement site for the purpose of developing or redeveloping that site and the successors and assigns of these owners and persons, and local governments and other political subdivisions that desire to promote the development or redevelopment of the brownfield agreement site.

(d) "Brownfield property" means any property (i) where use is hindered by actual or the potential for environmental contamination or the perception of environmental contamination and (ii) that is or may be subject to remediation under any state remedial program or under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 USCS Section 9601 et seq.) (CERCLA), but does not include any of the following:

(i) Those sites proposed by the United States Environmental Protection Agency for the National Priorities List (NPL) but not listed on the NPL or those sites listed on the NPL, except those NPL sites for which the United States Environmental Protection Agency has issued certificates of completion of the remediation set forth in the records of decision for those sites;

(ii) Those sites for which an order or enforcement action is issued or entered under CERCLA or Sections 3008(h), 3013(a) or 7003(c) of the Resource Conservation and Recovery Act of 1976, as amended (42 USCS Section 6901 et seq.) (RCRA) and which is still in effect; and

(iii) Those sites undergoing corrective action under RCRA Section 3004(u), 3004(v) or 3008(h), except those sites that the United States Environmental Protection Agency determines have completed corrective action.

(e) "Commission" means the Commission on Environmental Quality.

(f) "Contaminant" means a hazardous waste, as defined in Section 3001 of RCRA and Section 17-17-3, Mississippi Code of 1972; a hazardous substance, as defined in Section 101 of CERCLA and Section 311 of the federal Clean Water Act (33 USCS Section 1251 et seq.); oil, as defined in Section 311 of the Clean Water Act; wastes, air contaminant and pollution as defined in Section 49-17-5, Mississippi Code of 1972; and any other substance regulated under commission regulations.

(g) "Department" means the Mississippi Department of Environmental Quality.

(h) "Engineering control" means a modification to a brownfield agreement site to reduce or eliminate the potential for exposure to contaminants. These modifications may include, but are not limited to, physical or hydraulic control measures, capping, point of use treatment, or slurry walls.

(i) "Executive Director" means the Executive Director of the Mississippi Department of Environmental Quality.

(j) "Environmental contamination" means contaminants on or under the brownfield agreement site requiring remediation.

(k) "Land-use restriction" means the restriction on use of or access to a brownfield agreement site to eliminate or minimize exposure to contaminants. These restrictions may include, but are not limited to, deed restrictions, use restrictions, or restrictive zoning.

(l) "Local government" means a county or municipality within the State of Mississippi.

(m) "Person" means person as defined in Section 17-17-3.

(n) "Potentially responsible party" means a person who is or may be liable for remediation under a remedial program.

(o) "Proposed brownfield property" means the brownfield property that is proposed by a brownfield party for a brownfield agreement in an application for a brownfield agreement.

(p) "Remedial program" means a program implemented by the department for the remediation of any contaminant.

(q) "Remediation" means action to clean up, mitigate, correct, abate, minimize, eliminate, control, or prevent the spreading, migration, leaking, leaching, volatilization, spilling, transport, or further release of a contaminant into the environment in order to protect public health or the environment, including land-use restrictions and engineering controls.

SECTION 4. (1) The commission may enter into a brownfield agreement with a brownfield party who satisfies the requirements of this section.

(2) A brownfield party shall provide the department, in an application as prescribed by the commission, information necessary to demonstrate that:

(a) As a result of the implementation of the brownfield agreement, the brownfield agreement site will be suitable for the use or uses specified in the agreement while fully protecting public health and the environment in accordance with subsection (2) of this section;

(b) The brownfield party has or can obtain the financial, managerial, and technical resources to fully implement and complete the brownfield agreement and assure the safe use of the brownfield agreement site ; and

(c) The brownfield party agrees to comply with all applicable procedural requirements.

(3) The department may request the brownfield party to provide other information that is reasonably related to the application or to the brownfield party.

(4) Within thirty (30) days after submission of the application, the commission shall establish a written schedule for the processing of the application by the department. The commission may delegate this responsibility to the Executive Director.

(5) The commission's exercise of its discretion not to enter into a brownfield agreement shall be reviewable under Section 49-17-41 upon a petition by the brownfield party if the decision of the commission is arbitrary and capricious.

(6) A brownfield agreement shall establish remediation requirements that are based on public brownfield agreement site. In establishing these risk-based remediation requirements in a brownfield agreement, the commission shall consider land-use restrictions or engineering controls or both proposed by the brownfield party and determined by the commission to be appropriate for the brownfield agreement site. The land-use restrictions or engineering controls or both may constitute all or part of the remediation required by the commission in the brownfield agreement. These risk-based remediation requirements may include contaminant-specific, state-specific, site-specific and/or likelihood of risk methodologies for the implementation of these risk-based remediation requirements. The parties to a brownfield agreement who comply with the requirements of a brownfield agreement may rely on these risk-based remediation requirements, land-use restrictions and engineering controls as governing the extent of remediation required to be performed by the brownfield party on or under the brownfield agreement site for all purposes of this act, including liability protection, subject to the limitations in Section 5(6) of this act. Any risk-based remediation requirements, land-use restrictions and engineering controls implemented under a brownfield agreement shall be conducted cost effectively, consistent with projected future uses of the brownfield agreement site.

(7) A brownfield agreement shall contain a description of the brownfield agreement site sufficient to serve as a description of that site in an instrument of conveyance and, as applicable, a statement providing:

(a) A description of all remediation to be conducted on or under the brownfield agreement site, including:

(i) A description of specific areas where remediation is to be conducted;

(ii) The remediation method or methods to be employed;

(iii) The financial, technical and managerial resources that the brownfield party will make available;

(iv) A schedule of remediation activities;

(v) Remediation requirements that are based on public health or environmental risks specific to the brownfield agreement site;

(vi) A schedule for implementation and completion of the remediation; and

(vii) Any land-use restrictions or engineering controls constituting all or part of the remediation required by the commission in the brownfield agreement.

(b) The desired uses of the brownfield agreement site after any remediation required by the commission.

(c) A schedule for administration of the brownfield agreement by the department.

(d) Any other provisions necessary to implement the brownfield agreement.

SECTION 5. (1) A decision by the commission to enter into a brownfield agreement, including the terms of that brownfield agreement, shall be approved by an order of the commission before it is executed by the Executive Director and the brownfield party. The commission may approve a brownfield agreement as proposed by the brownfield party or as modified by the commission or may disapprove the brownfield agreement. The commission may subsequently amend the brownfield agreement by entry of an order. The commission orders shall be reviewable as provided in Section 49-17-41.

(2) Except for orders issued under Section 7(2) of this act, the commission, under any conditions it may prescribe, may authorize the executive director to issue any orders required under this act. A decision by the executive director shall be a decision of the commission and shall be subject to formal hearing and appeal as provided under Section 49-17-41.

SECTION 6. (1) At least thirty (30) days before the date that the commission considers a brownfield agreement under Section 5 of this act, the department shall publish a public notice in a newspaper of general circulation in the county or counties in which the brownfield agreement site is located. The public notice shall (a) describe the brownfield agreement, including the brownfield agreement site; (b) request public comment on the agreement within thirty (30) days after the date of publication of the notice; and (c) provide the date and location of the commission's consideration of the brownfield agreement. A copy of the brownfield agreement shall be filed for public inspection in the county courthouse of the county or counties in which the brownfield agreement site is located.

(2) The department may conduct a public hearing on the brownfield agreement in the county in which the majority of the brownfield agreement site is located or in any other location in the local area of the brownfield agreement site that is convenient to the public that may have an interest in the brownfield agreement. The department shall publish a notice of the hearing in a newspaper of general circulation in the county or counties in which the brownfield agreement site is located. The department shall provide to the commission for review before its consideration of the brownfield agreement all public comments and the transcript of any public hearing on the brownfield agreement.

SECTION 7. (1) Any material failure of a brownfield party or the agents or employees of a brownfield party to comply with the brownfield agreement constitutes a violation of this section by the brownfield party. If a brownfield party violates this section, the department shall serve on the brownfield party a notice of violation which identifies the violation and a reasonable time frame for curing the violation. The brownfield party shall have no less than thirty (30) days after the receipt of the notice of violation to cure the violation. If the violation is not cured by the brownfield party in a timely manner, the commission may issue an order to enjoin the brownfield party to cure the violation in an appropriate time period established by the order.

(2) If the brownfield party violates an order issued under subsection (1) of this section, the commission may issue an order that removes all liability protection afforded by the brownfield agreement under Section 8 of this act and may access civil penalties under Section 49-17-43.

(3) Except as provided in subsection (2) of this section, a brownfield party shall not be subject to civil penalties under Section 49-17-43 for failure to comply with a brownfield agreement.

SECTION 8. (1) Except as provided under subsection (6) of this section and Section 7(2) of this act, a brownfield party who executes a brownfield agreement with the commission shall be relieved of all liability for remediation of the brownfield agreement site and all costs reasonably related to the remediation to the state, any person who has or may incur remediation liability for the brownfield agreement site and all other persons other than the United States.

(2) The liability protection provided under this section applies to the following persons to the same extent as to a brownfield party, unless these persons are otherwise potentially responsible parties required to perform additional remediation under subsection (6) of this section:

(a) Any person under the direction or control of the brownfield party who directs or contracts for remediation or redevelopment of the brownfield agreement site;

(b) Any future owner of the brownfield agreement site;

(c) Any person who develops, redevelops or lawfully occupies the brownfield agreement site;

(d) Any successor or assign of any person to whom the liability protection provided under this section applies; and

(e) Any lender or fiduciary that provided financing for remediation or redevelopment of the brownfield agreement site.

(3) A person who conducts an environmental assessment on a brownfield agreement site and who is not otherwise a potentially responsible party shall not become a potentially responsible party as a result of conducting the environmental assessment unless that person increases the risk of harm to public health or the environment by failing to exercise due diligence and reasonable care in performing the environmental assessment.

(4) This section shall not affect the ability or authority of a brownfield party who executes and implements a brownfield agreement with the commission to seek contribution from any person who may have liability with respect to the brownfield agreement site and who did not receive liability protection under this act.

(5) The liability protection provided under this section shall become effective upon execution of a brownfield agreement and shall remain effective unless the commission removes the liability protection under Section 7(2) of this act.

(6) A brownfield party who completes the remediation required under a brownfield agreement and any other person who receives liability protection under this section shall not be required to perform additional remediation on or under the brownfield agreement site unless:

(a) The brownfield party provides false information that forms a basis for the brownfield agreement or that is offered to demonstrate compliance with the brownfield agreement or fails to disclose relevant information about environmental contamination;

(b) New information after execution of the brownfield agreement indicates the existence of previously unknown contaminants or an area of previously unknown environmental contamination that has not been remediated to standards required by applicable state law other than this act, unless the brownfield agreement is amended to include any previously unknown contaminants and any additional areas of environmental contamination;

(c) The level of risk to public health or the environment on or under the brownfield agreement site from contaminants is increased beyond the level that is the basis for the risk-based remediation requirements in the brownfield agreement due to changes in exposure conditions, including (i) a change in land use that increases the probability of exposure to contaminants on or under the brownfield agreement site or (ii) the failure of remediation to mitigate risks to the extent required to make the brownfield agreement site fully protective of public health and the environment as provided in the brownfield agreement;

(d) The department obtains new information after execution of the brownfield agreement about a contaminant on or under the brownfield agreement site that increases the risk to public health or the environment on or under the brownfield agreement site beyond the level that is the basis for the risk-based remediation requirements in the brownfield agreement and in a manner or to a degree not anticipated in the brownfield agreement; or

(e) A brownfield party fails to file a timely and proper notice of brownfield agreement site under Section 9 of this act.

(7) The brownfield party may petition the commission to determine that the performance of the brownfield agreement has been completed. Following issuance of an order by the commission that performance of the brownfield agreement has been completed, the executive director shall issue a "no further action" letter. The letter shall include the following statement: "Based upon the information provided by (brownfield agreement party) concerning property located at (location), it is the opinion of the Commission on Environmental Quality that (brownfield agreement party) has successfully and satisfactorily implemented and completed the approved brownfield agreement and, accordingly, no further action is required to assure that any remediation, including any land-use restrictions or engineering controls, or both identified in the brownfield agreement, is protective of public health and the environment consistent with the existing and proposed uses of this property."

SECTION 9. (1) In order to reduce the danger to public health or the environment posed by a brownfield agreement site being addressed under this section, a brownfield party who desires to enter into a brownfield agreement with the commission shall submit to the department for its approval a proposed notice of brownfield agreement site before the date that public notice of the brownfield agreement is published by the department under Section 6 of this act.

(2) A notice of brownfield agreement site (a) shall be entitled "Notice of Brownfield Agreement Site", (b) shall include a survey plat of the brownfield agreement site described in the brownfield agreement that has been prepared and certified by a professional land surveyor, (c) shall include a legal description of the brownfield agreement site that would be sufficient as a description of that site in an instrument of conveyance, (d) shall state that the provisions of the brownfield agreement and this Notice of Brownfield Agreement Site "run with the land" with regard to the brownfield agreement site until canceled as provided in subsection (7) of this section, and (e) shall identify all of the following:

(i) The location and dimensions of the areas of potential environmental contamination with respect to permanently surveyed benchmarks;

(ii) The type, location, and quantity of contaminants known to exist on or under the brownfield agreement site;

(iii) All land-use restrictions on the current or future use of the brownfield agreement site. These land-use restrictions may apply to activities on or under the brownfield agreement site, including, but not limited to, use of groundwater, building, filling, grading, excavating, and mining; and

(iv) All engineering controls designated in the brownfield agreement.

(3) Until the Executive Director issues a "no further action" letter in under Section 8(7) of this act, a transfer of the brownfield agreement shall be made before any sale of, conveyance of or other change in surface ownership of any portion of the brownfield agreement site that is owned by the brownfield party desiring to make the change in ownership if the brownfield party proposes that the new surface owner will perform any obligation of the brownfield agreement. A transfer of any obligation of the brownfield agreement to the new surface owner must be approved by an order of the commission. The brownfield party who desires to transfer any obligations of a brownfield agreement and the new surface owner shall jointly provide information satisfactory to the commission that the new surface owner has the financial, managerial and technical resources to complete performance of the brownfield agreement obligations to be transferred and that the new surface owner agrees to complete this performance. If the commission determines that the new surface owner has the financial, managerial, and technical resources to complete this performance and has agreed to do so, the commission shall issue an order approving the transfer.

(4) (a) After the department approves the notice of brownfield agreement site under subsection (1) of this section, a brownfield party who enters into a brownfield agreement with the commission shall file a certified copy of the approved notice of brownfield agreement site in the office of the chancery clerk in the county or counties in which the brownfield agreement site is located. The brownfield party shall file the approved notice within fifteen (15) days after execution of the brownfield agreement.

(b) The notice of brownfield agreement site shall contain all information required for deeds, including the names, addresses and telephone numbers of the parties, and shall contain an indexing instruction.

(5) After collecting the proper fee fixed in Section 25-7-9, the chancery clerk shall record the certified copy of the notice of brownfield agreement site and index it in the general index to deeds and sectional index under the names of the owners of the brownfield agreement site, and, if different, also under the name of the brownfield party implementing the brownfield agreement.

(6) When a surface interest in a brownfield agreement site is sold, leased, conveyed or transferred, the deed or other instrument of transfer shall contain in the description section, in no smaller type than that used in the body of the deed or instrument, a statement that the brownfield agreement site has been classified and, if appropriate, remediated as a brownfield agreement site under this act.

(7) If a notice of brownfield agreement site is filed under this section and if the commission issues an order canceling the notice, the current owner of the brownfield agreement site shall file a statement issued by the Executive Director in accordance with the commission's order canceling the notice in the office of the chancery clerk in any county in which the brownfield agreement site is located. The Executive Director's statement shall contain the names of the owners of the brownfield agreement site as shown in the notice of brownfield agreement site and reference the book and page where the notice is recorded. After collecting the proper fee fixed in Section 25-7-9, the chancery clerk shall record the Executive Director's statement in the deed books and index it in the sectional index and in the general index to deeds (reverse) in the names of the owners of the brownfield agreement site as shown in the notice and the surface estate transferees and in the general index to deeds (direct) in the name "Executive Director of the Department of Environmental Quality". The chancery clerk shall make a marginal entry on the notice of brownfield agreement site showing the date of cancellation and the book and page where the Executive Director's statement is recorded, and the chancery clerk shall sign the entry.

(8) (a) Any land-use restriction or engineering control in a brownfield agreement and in a notice of brownfield agreement site filed under this section may be enforced by:

(i) Any current owner of the brownfield agreement site;

(ii) The commission by filing a civil action, without first having exhausted all available administrative remedies;

(iii) Any local government having jurisdiction over any part of the brownfield agreement site by filing a civil action, without the local government having first exhausted all available administrative remedies; or

(iv) Any person provided liability protection under this act who will lose liability protection if the land-use restriction or engineering control is violated.

(b) A land-use restriction or engineering control shall not be declared unenforceable due to lack of privity of estate or contract, due to lack of benefit to particular land, or due to lack of any property interest in particular brownfield property within the brownfield agreement site. Any person who owns or leases brownfield property within the brownfield agreement site subject to a land-use restriction or engineering control under this section shall abide by the land-use restriction or engineering control.

SECTION 10. The commission shall promulgate regulations necessary to effectuate this act before January 1, 1999.

SECTION 11. This act shall not:

(1) Affect the authority of local governments to regulate land use under applicable statutes. The use or uses of the identified brownfield agreement site and any land-use restrictions or engineering controls in the brownfield agreement shall be consistent with local land-use regulations adopted under those statutes;

(2) Amend, modify, repeal, or otherwise alter any provision of law available to the commission relating to enforcement of violations of state law within its jurisdiction, including civil and criminal penalties, except as provided in a brownfield agreement or Section 7(2) of this act;

(3) Prevent or impede the immediate response of the department or responsible party to an emergency that involves an imminent or actual release of a regulated substance that threatens public health or the environment;

(4) Relieve a person receiving liability protection under this section from any liability for environmental contamination later caused or made worse by that person on or under a brownfield agreement site;

(5) Affect the right of any person to seek any relief available against any party to the brownfield agreement who may have liability with respect to the brownfield agreement site, except any relief available against any party to a brownfield agreement with respect to remediation of the brownfield agreement site and all costs reasonably related to that remediation required under the brownfield agreement as provided under this act;

(6) Affect the right of any person who may have liability with respect to the brownfield agreement site to seek contribution from any other person who may have liability with respect to the brownfield agreement site and who neither received nor has liability protection under this act;

(7) Prevent the commission from enforcing specific numerical remediation standards, monitoring, or compliance requirements specifically required by the federal government to be enforced as a condition for the department to receive or maintain program authorization, delegation, primacy, or federal funds;

(8) Create a defense against the imposition of criminal and civil penalties or other administrative enforcement remedies authorized by law and imposed as the result of the illegal disposal of solid waste or a regulated substance or for the pollution of the land, air, or waters of this state on or under a brownfield agreement site, except as provided in a brownfield agreement or Section 7(2) of this act; or

(9) Relieve a person of any liability for failure to exercise due diligence and reasonable care in performing an environmental assessment.

SECTION 12. (1) The brownfield party that submits a brownfield agreement application shall pay all reasonable direct and indirect costs of the department associated with the processing of the brownfield agreement application and administration of the brownfield agreement less the advance costs required in subsection (2) of this section.

(2) A brownfield party who submits an application for a brownfield agreement for review by the department shall pay advance costs of Two Thousand Dollars ($2,000) at the time the application is submitted to the department.

(3) The commission shall set by order a schedule of costs for the processing of the brownfield agreement applications and the administration of brownfield agreements by the department.

(4) (a) There is created in the State Treasury a fund to be designated as the "Brownfields Cleanup and Redevelopment Trust Fund", referred to in this section as "fund," to be administered by the Executive Director.

(b) Monies in the fund shall be utilized to pay reasonable direct and indirect costs associated with the processing of the brownfield agreement applications and the administration of brownfield agreements.

(c) Expenditures may be made from the fund upon requisition by the Executive Director.

(d) The fund shall be treated as a special trust fund. Interest earned on the principal shall be credited by the Treasurer to the fund.

(e) The fund may receive monies from any available public or private source, including, but not limited to, collection of costs, interest, grants, taxes, public and private donations, judicial actions and appropriated funds.

(f) Monies in the fund at the end of the fiscal year shall be retained in the fund for use in the next succeeding fiscal year.

(5) All monies collected under this section shall be deposited into the fund.

(6) The commission may delegate to the department responsibility for the collection of costs in subsections (1) and (2) of this section.

(7) All costs under subsection (1) of this section shall be due before a date specified by the department in an invoice which shall be no less than thirty (30) days following the invoice date. If any part of the costs that are imposed is not paid within thirty (30) days after the due date, a penalty of up to twenty-five percent (25%) of the amount due may be imposed and be added that amount. Any penalty collected under this section shall be deposited into the fund. If the department pursues legal action to collect costs incurred, reasonable attorney's fees and costs may be assessed against the delinquent party.

(8) Any person required to pay costs under this section who disagrees with the calculation or applicability of the costs may petition the commission for a hearing in accordance with Section 49-17-35. Any hearing shall be in accordance with Section 49-17-33.

(9) Costs collected under this section shall not supplant or reduce in any way the general fund appropriation to the department.

(10) The department may suspend any activities or actions related to the processing of the brownfield agreement application or administration of a brownfield agreement, if the brownfield party or parties fails to pay any required costs or penalties imposed under this section.

(11) Nothing in this section affects any existing program at the department or affects any authority of the commission or department to take any action authorized by law.

SECTION 13. This act shall take effect and be in force from and after July 1, 1998.