Rule 11-3-2.1.2 - Brownfield Application RequirementsA. General Requirements.(1) Brownfield Agreement applications must be filed in the format prescribed by MDEQ. Prior to approval, the application must be complete and must contain all of the information required by MDEQ, including, but not limited to, information necessary to demonstrate the following:(a) That as a result of the proposed remediation, the Brownfield Property will be suitable for the use or uses specified in the application while fully protecting public health and the environment;(b) That the Brownfield Party has or can obtain the financial, managerial, and technical resources to implement fully and complete the proposed remediation and to assure the safe use of the Brownfield Property;(c) That the current owners of all surface interests (including legal and equitable) in the Brownfield Properties that are the subject of the application have given written approval for inclusion of their property interest in the Brownfield Agreement Site. This approval shall be provided on the form prescribed by MDEQ;(d) That the Brownfield Party will comply with all applicable procedural requirements; and(e) That all items contained in the application form have been addressed by either providing the required information or stating that the item is not applicable. In the event that an item is considered not applicable, the Brownfield Party must include a written justification in the application that demonstrates to the satisfaction of MDEQ that the item is not applicable to the application.(2) If the Brownfield Applicant has demonstrated to the satisfaction of MDEQ that activities on or under the Brownfield Agreement Site involving the use, extraction, or production of mineral interests will not increase the level of risk to the public health or the environment beyond the level that forms the basis for the risk-based remediation requirements in the Brownfield Agreement, then the current owners and lessees of those mineral interests (including legal and equitable) in or under the Brownfield Properties that are the subject of the application are not required to give written approval for the submission of the application and the inclusion of their property interest in the Brownfield Agreement Site. All owners and lessees of a legal or equitable interest in the surface and/or mineral estates of the Brownfield Properties that are the subject of the application who do not give written approval for execution of the Brownfield Agreement shall be subject to Rule 2.1.7.A.(5)(c) of these regulations. Otherwise, written approval of the mineral interest owner(s) for inclusion of the Brownfield Property in the Brownfield Agreement site must be provided on the form prescribed by MDEQ;(3) As part of the application, the Applicant shall submit a title certificate prepared by an attorney who is licensed to practice law in the State of Mississippi identifying the following:(a) The legal description of the Brownfield Property;(b) The names and addresses of all persons who have an interest in the Brownfield Properties that are the subject of the application as defined in Rule 2.1.2.A(1) and (2) of these regulations; and(c) The names and addresses of all surface-interest property owners contiguous to the Brownfield Property.(4) As part of the application, the Applicant shall submit a copy of any local zoning requirements, classifications, statutes or ordinances, comprehensive zoning plan designations, and/or any current land use approvals obtained regarding the Brownfield Property and the property contiguous to the Brownfield Property.(5) At the time a Brownfield Agreement application is filed, the Applicant shall submit $2000.00 in the form of a check or money order made payable to MDEQ as advance costs for the costs described in paragraph (6).(6) At the time a Brownfield Agreement application is filed, the Applicant must execute a statement in the form required by MDEQ that provides that the Applicant agrees to pay all direct and indirect costs of MDEQ associated with the processing of the Brownfield Agreement application and administration of the Brownfield Agreement.(7) As part of the application, the Applicant shall submit a schedule which sets forth its estimate of the amount of time it expects will be required to complete the Brownfield Agreement.(8) With regard to financial resources, the applicant shall be required to file with MDEQ, as part of its application, an estimate of the costs of performance of all requirements of the Brownfield Agreement including corrective action, operation and maintenance, monitoring, post-closure activities, and contingency actions. The cost estimate shall be based on a professional third party's cost of performing all of the requirements of the Brownfield Agreement. These cost estimates must be submitted to MDEQ for its concurrence. The applicant shall provide MDEQ proof of financial resources in an amount equal to the cost estimates for performance of all requirements of the Brownfield Agreement including corrective action, operation and maintenance, monitoring, closure, post-closure activities, and contingency actions. Proof of financial resources, if applicable, may include the following financial instruments: insurance, escrow accounts; surety bonds, including performance or financial guarantee bonds; irrevocable letters of credit; certificates of deposit; securities; and/or other documents approved by MDEQ. The financial instruments shall be issued by a surety company or financial institution licensed to do business in the State of Mississippi. MDEQ may, in its discretion, exempt an applicant from these financial resource requirements based on the applicant's demonstration of financial resources submitted to MDEQ in another MDEQ program and/or such other factors deems appropriate. In the event the cost estimates to complete all requirements in the Brownfield Agreement increase or decrease, MDEQ may require the Brownfield Party to submit additional and/or amended financial instruments.(9) With regard to technical resources, the applicant shall be required to file with the MDEQ, as part of the application on a form prescribed by the MDEQ, a statement certifying that the Applicant shall utilize a consulting firm listed on the approved list of Brownfield Consulting Firms or the staff of the MDEQ.(10) With regard to managerial resources, the applicant shall be required to file with MDEQ, as part of its application on a form prescribed by MDEQ, a statement of key personnel considered essential to the work being performed under the Brownfield Agreement. Prior to removing, replacing, or diverting any of the specified individuals, the Brownfield Party shall notify MDEQ in advance and shall submit justification, including proposed substitutions, in sufficient detail to demonstrate that the substitutions have sufficient qualifications to manage all assignments associated with the Brownfield Agreement Site.(11) With regard to compliance history, the MDEQ may require the applicant to submit the following:(a) A statement of whether the applicant has had a federal or state environmental permit revoked in the five years preceding the date of submission of the Brownfield Agreement application. If any revocation has occurred, the applicant will be required to submit a brief explanation of the facts involving the revocation including: identification of the authority that revoked the permit and the stated reasons; the date, location and type of any administrative or judicial proceedings initiated concerning the revocation; and the current status of the proceedings.(b) A list of all orders, citations, and notices of violation issued against the Applicant during the five years preceding the date of submission of the application for any violations or alleged violations of environmental permits, laws and/or regulations. For each document listed, the Applicant shall include a brief description of the particular violation alleged, the terms of the order, including any required action and penalty, and the current status of the proceeding.(c) MDEQ may require the Applicant to submit additional information with regard to compliance history.(12) The applicant shall submit all other information required by MDEQ.B. Procedural Requirements. (1) Within thirty (30) days after the date an application is submitted to MDEQ, MDEQ shall review the application to determine whether the application is a complete application and forward a letter to the Applicant advising either: (a) that the application is complete or;(b) that the application is incomplete and listing the specific sections that must be submitted or supplemented to make the application complete.(2) Within thirty (30) days after the date that MDEQ forwards a letter to the Applicant advising that the application is complete, MCEQ shall issue an order which sets forth a schedule for: (a) the identification of other Brownfield Property that has been impacted by activities on or under the Brownfield Property that is the subject of the application;(b) MDEQ's technical review of the application; and(c) the Brownfield Party's submission of additional information required by MDEQ.(3) The Applicant shall promptly update and/or correct information previously submitted as part of the application whenever the Applicant discovers that this information is incomplete or inaccurate.(4) If Brownfield Property other than that property which is the subject of the original application is identified as necessary for inclusion in the Brownfield Agreement Site, the Brownfield Party shall obtain written approval, on the form prescribed by the MDEQ, from all persons who have an interest in the additional Brownfield Property for inclusion of that Brownfield Property in the Brownfield Agreement Site, in accordance with Rule 2.1.2.A(1)(c) and (2) of these regulations.(5) If MDEQ's technical review indicates that no remediation is required at the Site, MDEQ will issue a letter so stating.C. Brownfield Consulting Firm Requirements. (1) In order to be listed on the approved list of Brownfield Consulting Firms, a firm must, at a minimum, (a) Submit an application to MCEQ for its approval, in a format prescribed by MDEQ;(b) Have as an employee either a Professional Engineer or a Professional Geologist, registered in the State of Mississippi, with at least four (4) years experience in hazardous site characterization and remediation of which one year must be within five (5) years preceding the date of the application;(c) Have either as an employee or as a subcontractor a Professional Engineer or a Professional Geologist (whichever Professional designation is not satisfied by Rule 2.1.2.C(1)(b) of these regulations), registered in the State of Mississippi, with: (1) at least four (4) years experience in hazardous site characterization and remediation of which one year must be within five (5) years preceding the date of the application and(2) a current certificate of comprehensive general liability insurance (or other insurance acceptable to MDEQ) of at least $1,000,000.00 or greater as required by MDEQ;(d) Submit a Quality Management Plan to MDEQ for its approval, in a format prescribed by MDEQ;(e) Supply a current certificate of comprehensive general liability insurance (or other insurance acceptable to MDEQ) of at least $1,000,000.00 or greater as required by MDEQ; and(f) Supply such other information as required by MDEQ.(2) An approved Brownfield Consulting Firm must notify MDEQ within 10 days of any modification in the information previously submitted, and must submit updated information within 30 days of the modification. If the modification renders the firm unable to remain on the list of approved Brownfield Consulting Firms, then MCEQ may remove the firm from that list. MDEQ or MCEQ may require the Brownfield Party to certify its retention of an approved Brownfield Consulting Firm within 30 days of a determination that the Party's consultant no longer is an approved Brownfield Consulting Firm.(3) All key personnel of an approved Brownfield Consulting Firm must attend MDEQ-approved continuing education, as required by MDEQ.(4) An approved Brownfield Consulting Firm may be removed from the approved list for a period of time specified by the MCEQ for any of the following:(a) Submission of false information;(b) Failure to submit an updated application upon modification of material information, as required by Rule 2.1.2.C(2) of these regulations;(c) Failure to perform in a responsible manner with respect to matters including, but not limited to, responsiveness, technical competence, workmanship, or any other matter essential to the efficient and effective completion of the Brownfield Agreement, as determined by MCEQ;(d) Failure of key personnel to attend MDEQ-approved continuing education, as required by MDEQ;(e) Failure to meet any of the requirements of this rule; and(f) Such other good cause as determined by MCEQ.(5) Any interested party may request a hearing before MCEQ as provided in Sections 49-17-31, 49-17-33, 49-17-35, 49-17-37, 49-17-41 or other applicable provisions of law regarding any of the provisions of this rule, including but not limited to: (a) Listing of a firm on the approved list of Brownfield Consulting Firms;(b) Removal of a firm on the approved list of Brownfield Consulting Firms; and(c) Denial of an application for listing of a firm on the approved list of Brownfield Consulting Firms.(6) The listing of a Brownfield Consulting Firm does not authorize any individual to perform work from which it is restricted by any state or federal law or regulation.(7) MDEQ may, itself, conduct those activities necessary to delineate or remediate Brownfield Property.11 Miss. Code. R. 3-2.1.2
Miss. Code Ann. §§ 49-35-1, et seq., 17-17-1, et seq., 17-17-54, 49-2-9 (1)(b), 49-17-17, 49-2-1, et seq. and 49-17-1, et seq.