Maryland

Andrew C. Cooper
Brendon Pinkard
Dickenstein Shapiro Morin & Oshinsky LLP
Washington, D.C.

A new bill and cleanup standard are the most recent initiatives adding to the Maryland Voluntary Cleanup Program (VCP) and the Brownfields Revitalization Incentive Program (BRIP) (collectively, "the Programs").

Bill 513, effective as of October 2000, adopts several changes to the Programs, including offering purchasers of real property low interest loans or grants to conduct environmental site assessments of brownfields properties. Such site assessments are a prerequisite to participation in the VCP, and often deter investors who are unwilling to incur the potentially high costs of evaluating a property's contamination level. Bill 513 seeks to limit an investor's exposure to financial risk by allowing the State of Maryland to provide grants and loans for up to 70% of total site assessment costs.

Bill 513 also alters the BRIP participation requirements for local jurisdictions. Prior to this amendment, the program required participating jurisdictions to enact enabling legislation in order to grant the property tax credits offered under the BRIP. Bill 513 authorizes the participation of local jurisdictions that enact such credits, further streamlining the process.

Finally, Bill 513 expanded the definition of "brownfield site" for purposes of eligibility in the Programs. Under the new definition of "brownfield site," property owned by an "innocent purchaser," defined as one who can show by a preponderance of evidence that such person was not aware of contamination on, in, or at the site, is eligible to participate in the Programs. Accordingly, Bill 513 expands the previous definition of "brownfield site" to lower the bar to eligibility.

In December 2000, the MDE established cleanup standards for soil and groundwater to provide further guidance to potential brownfields investors. The standards are intended to operate as a guideline for developers to assess concentration levels in the soil and groundwater at which no further remedial action would be needed on a property. Currently, the soil and groundwater standards act only as a non-binding guideline, but the MDE may later codify these standards in the Code of Maryland Regulations. The Maryland Legislature recently rejected a bill aimed at enhancing the state brownfields program. House Bill 664 was proposed to modify the definition of "revitalization area" in the Job Creation Tax Credit and "focus area" under the Enterprise Zone Tax Credit to include brownfields properties. However, Bill 664 died in the House Ways and Means Committee and was never enacted.