A "brownfields site" is an abandoned, idled or underused property where the threat of environmental contamination has hindered its redevelopment. The North Carolina Brownfields Program, which is administered by the Division of Waste Management, is the state's effort to break this barrier to the redevelopment of these sites. The Brownfields Property Reuse Act of 1997 [NCGS 130A310.30 et seq.] sets forth the authority for the Department of Environment and Natural Resources to work with prospective developers to put these brownfields sites back into reuse. The prospective developer, as defined under the statute, is any person who desires to buy or sell a brownfields property for the purpose of redeveloping it and who did not cause or contribute to the contamination at the property.
In 2018, DEQ entered into a Brownfields Agreement with Rocky Mount officials to redevelop the historic Douglas Block into a Downtown Event Center. This was the agency's 500th agreement since the program's inception in 1998, when the first agreement was provided to Camden Square Associates for the Camden Square project in the Wilmore Community of Charlotte. View more success stories here.
At the heart of the program is the brownfields agreement -- in effect, a covenant not-to-sue offered to a prospective developer of a brownfields property. Under a brownfields agreement, a prospective developer agrees to perform those actions deemed by the department to be essential to make the property suitable for the proposed reuse.
In return, the department agrees to limit the liability of the prospective developer to those actions described in the agreement. This allows the prospective developer to go to a lending institution with a defined, instead of an open-ended, liability for environmental cleanup. Through such agreements, redevelopment at these brownfields sites will be encouraged, lessening the incentive for developers to move into "greenfields" areas. While these defined liability benefits are extended to the prospective developer, the brownfields agreement in no way changes the legal liability for the responsible parties at the site.
The Act provides the department with the discretion to enter into brownfields agreements. Furthermore, it specifically states that there must be a "public benefit commensurate with the liability protection provided" under the brownfields agreement.
This discretion will be exercised with the intent to encourage site redevelopment and is not designed for responsible parties with inactive hazardous waste sites who merely want to transfer property. For these sites there is the voluntary cleanup program which is administered by the Inactive Hazardous Sites Branch of the Superfund Section. The Voluntary Cleanup Program has provisions regarding privatized oversight at voluntary cleanups (the Registered Environmental Consultant Program) that took effect April 1997.