Session Laws

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. The cities of Pittsfield and North Adams, by majority vote of their respective city councils and any other town in Berkshire county, by majority vote of their respective town meetings may, subject to the provisions of this act, join together and create a body corporate to be known as the Berkshire Economic Development Authority, hereinafter called the Authority. Other municipalities in Berkshire county which accept the provisions of this act, at any time after the formation of the Authority as provided for in section sixteen, shall become members of the Authority.

SECTION 2. The purpose of the Authority shall be to acquire properties contaminated by oil or hazardous material, conduct response actions thereon, and construct, develop, maintain, lease, convey or otherwise transfer such property for the beneficial reuse or development of such property to promote economic development on behalf of its member communities. Said board, as defined in this act, acting for and on behalf of said Authority, may take by eminent domain under chapter seventy-nine of the General Laws or acquire by purchase or otherwise, any disposal site, as defined by section two of chapter twenty-one E, hereinafter referred to as twenty-one E sites, or a portion thereof, and associated lands, properties, water rights, rights of ways, or easements, public and private, necessary for accomplishing the purposes of this act; may conduct response actions pursuant to the requirements of said chapter twenty-one E and regulations promulgated pursuant thereto; may construct, maintain or operate and lease such industrial or commercial facilities acquired by the Authority; may sell by negotiation to the participating member communities of the Authority or at public auction any property including land acquired by the Authority pursuant to this act and which in the Authority's opinion is no longer needed in the performance of the powers and duties conferred and imposed on it by this act may from time to time lease any property which in the Authority's opinion is not needed by it for the purposes of this act and may do any other thing proper or necessary for the purposes of this act; provided, that the Authority shall not take in fee any land of a railroad corporation, that it shall not enter upon or construct, maintain or operate any industrial or commercial facility within the location as it may agree upon with such corporation, or, in the case of failure to agree, as approved by the department of public utilities.

The Authority may acquire and hold not more than three properties at any given time. The authority may at any time submit, to the house and senate committees on ways and means and to the joint committee on commerce and labor, a report proposing legislation authorizing the Authority to acquire properties in addition to the three authorized herein. Any such report shall describe the following: properties acquired to date; response actions conducted; development activities; and income from the sale or lease of said properties. No more than two-thirds of the total pending projects, approved by action of the board of the Authority, may be situated in any one member community.

SECTION 3. The Authority may enter into agreements to indemnify and hold harmless future owners or operators of properties acquired by the Authority pursuant to this act from and against liability pursuant to sections four, four A and five of chapter twenty-one E of the General Laws with respect to any releases or threats of release of oil or hazardous material that first begin to occur before such owners or operators acquire ownership or possession of the property; provided, however, that such indemnification shall not apply to any violation of or change to a restriction in use imposed on the property as part of a response action conducted by the Authority. Notwithstanding any provision of said chapter twenty-one E to the contrary, such such owners or operators who acquire ownership or possession of property from the Authority shall not be deemed an owner or operator for purposes of said chapter twenty-one E with respect to any release or threat of release of oil or hazardous material that first began to occur at or from a site or vessel before the time that such owners or operators acquired ownership or possession provided, however, that: (1) such owners or operators is a bona fide new owner or operator and is not affiliated with any other person potentially liable for response costs or damages to natural resources caused by such release or threat through any direct or indirect familial relationship or any contractual, corporate or financial relationship other than that created by the instruments by which title to the property is conveyed or financed; (2) such such owners or operators provide reasonable access to the site or vessel to employees, agents and contractors of the department of environmental protection to conduct response actions and to other persons intending to conduct response actions; and (3) such such owners or operators does not violate or fail to comply with any restriction on future use of the site imposed pursuant to section six of said chapter twenty-one E and regulations promulgated pursuant thereto. When such owner or operator is not an owner or operator pursuant to this definition, any person who owned or operated the site or vessel immediately prior to the Authority's acquisition of ownership or possession shall be deemed the owner or operator pursuant to said chapter twenty-one E.

Notwithstanding any other provision of this definition, the Authority's tenants, subtenant's or any other person using or acquiring a site from the owner may be deemed an owner or operator with respect to any release or threat of release that first begins to occur at or from a site or vessel after the time that the Authority takes ownership or possession of it for any purpose.

SECTION 4. (a) The Authority may enter into agreements with its response action contractors to indemnify and hold harmless its response action contractor against any liability for negligence, including legal fees and costs, if any, in an amount not to exceed a figure established by the indemnification agreement pursuant to the terms of this section. In no event shall the amount of indemnification to be provided under an indemnification agreement exceed two million dollars for a single occurrence involving the release or threat of release of oil or hazardous material. No indemnification shall be provided pursuant to an indemnification agreement under this section if the response action contractor acts in a grossly negligent, willful, or malicious manner or if the action or omission which gives rise to a claim is not within the scope of the response action contract.

(b) The indemnification provided under this section shall apply only to response action contractor liability arising out of a release or threat of release of oil or hazardous material resulting from response actions conducted by the response action contractor pursuant to its response action contract.

SECTION 5. The Authority shall be authorized to take or arrange for necessary response actions as determined by reference to the Massachusetts contingency plan. The Authority shall be entitled to reimbursement from any other person liable for such release or threat of release for the reasonable costs of such response actions, including all litigation costs and attorney's fees. All claims for contribution, reimbursement or equitable share by the Authority pursuant to this section and chapter twenty-one E of the General Laws shall be brought in accordance with the procedures set forth in section eleven A of said chapter twenty-one E.

The Authority may enter into agreements with prior owners or operators of a site or vessel or persons who may have otherwise caused or may be legally responsible for releases or threats of release of oil or hazardous material, to conduct or reimburse the Authority for the costs of response actions. In conducting any response action pursuant to the requirements of said chapter twenty-one E and the regulations promulgated thereto, the authority shall not be exempt from any compliance or permit fees.

SECTION 6. In the event that a response action or portion of a response action conducted by the Authority includes a restriction on future use of the site pursuant to section six of chapter twenty-one E of the General Laws and regulations promulgated pursuant thereto, the Authority shall have no liability or responsibility for any violation of such restriction or for any necessary and appropriate response action on account of use of the site by a future owner and operator contrary to the requirements of such restriction.

SECTION 7. Except as expressly provided by this section, the Authority shall not be deemed an "owner" or "operator" under the provisions of clauses (2) and (5) of paragraph (a) of section five of chapter twenty-one E of the General Laws and shall be excluded from the definition of "owner" or "operator" with respect to releases and threats of release that first begin to occur before the Authority acquires ownership or possession of a site or vessel, provided that upon acquiring ownership or possession of a site or vessel, said Authority shall:

(1) provide notice to the department of environmental protection, immediately upon obtaining knowledge of release or threat of release of oil or hazardous material for which notification is required pursuant to, and in compliance with, section seven of said chapter twenty-one E or regulations promulgated pursuant thereto;

(2) provide reasonable access to the site or vessel to employees, agents, and contractors of said department to conduct response actions, if necessary, and to other persons intending to conduct necessary response actions;

(3) take or arrange for any and all response actions necessary and appropriate regarding releases or threats of release under said chapter twenty-one E and any regulations promulgated pursuant thereto.

In the event that the department incurs response action costs in connection with any site acquired by the Authority, the Authority shall reimburse the department for such reasonable response actions costs.

SECTION 8. There is hereby created the Berkshire economic development board, hereinafter called the board. The Authority shall be under the management and control of said board.

SECTION 9. The board may enter upon any land for the purpose of making surveys, environmental site assessments, test pits, borings, and may take by eminent domain under chapter seventy-nine of the General Laws by purchase or otherwise, the right to temporarily occupy any lands necessary for the carrying out of said purpose.

SECTION 10. The Authority, by vote of the board, shall be authorized to issue from time to time, general obligation serial bonds or notes of the Authority to pay for the costs of capital outlays in connection with assessment, containment and removal activities at properties acquired by the Authority and in connection with the construction and operation of industrial and commercial facilities and such other works as may be required, including land damages and costs of demolition of existing structures on lands that may be required.

Said bonds shall be issued in such amount or amounts as the Authority acting by and through the board may determine and the Authority may refund any such bonds and notes. Such serial bonds and notes may be callable with or without premium and shall contain such terms and conditions, bear such rate or rates of issue, be sold in such a manner, at private or public sale, and mature in such times and in such amounts as the board shall determine, providing that each issue of such bonds and notes shall be payable in annual installments, the first of which shall be payable not later than two years after its date and the last of which will be payable not more than thirty years from said date.

If the board votes to issue serial bonds or notes, said board may authorize the issuance in the name of the Authority, of general obligation temporary notes for a period of not more than two years in anticipation of the money to be received from the sale of such serial bonds or notes. The time within which such serial notes or bonds are issued shall not be extended by reason of the making of such temporary loans beyond the time fixed in the order authorizing such temporary bonds or notes.

For the purpose of paying the expenses of operations, including without limitation, any principal or interest due or about to become due on any bond or note issued by the Authority in which funds are not available, the board in the name of the Authority shall be authorized to issue from time to time general obligation temporary notes of the Authority in anticipation of assessments against member communities of the Authority and in the year such notes are issued.

Temporary notes in anticipation of assessment shall be payable not more than one year from their date, and shall not exceed in principal amount the amount of the outstanding assessment in anticipation of which they are issued.

Temporary notes issued under this section for a shorter period than the maximum permitted may be renewed by the issuance of other temporary notes maturing within the required period; provided, however, that the period from the date of issue of the original temporary note to the date of maturity of the renewal note shall not exceed the maximum period for which the original note may have been issued. Such temporary notes or renewal notes may be sold at discount or with interest payable at or before maturity.

Notes or bonds authorized by this section shall be signed by the treasurer of the board, as defined herein, and countersigned by the chairman of the board, as defined herein, and serial bonds and notes shall have the Authority's seal affixed. Section sixteen B of chapter forty-four of the General Laws shall be applicable to such bonds and notes.

SECTION 11. The cost of the original response action, acquisition, design and construction of the industrial or commercial facilities shall be apportioned among the participating member cities and towns in accordance with the level of participation by the community approved by its executive officer or body as the case may be in each city or town authorized and approved by the board. A participant or participating community is hereby defined as a member which has been authorized by its city or town council, or board of selectmen, to obligate the community to financially participate in a particular project and said participation has been approved by the board.

The board shall not approve the participation of any city or town in any project unless the director submits a detailed action plan, including a complete assessment of financial and environmental costs and benefits, which demonstrate that revenue from the project can reasonably be expected to meet or exceed costs. When appropriate, said report shall recognize costs to establish a reserve or purchase insurance to protect the Authority from future liability. Said report shall be available to each community prior to any vote to participate in the project.

SECTION 12. The board shall annually determine the amount required for the payment of principal and interest on such bonds and notes issued or to be renewed by the Authority which shall be due during the ensuing calendar year and shall apportion the amount so determined among the members of the Authority in accordance with the provisions of this act, shall also determine the amounts annually to be raised to maintain and operate the Authority during the said year including capital outlay items the cost of which is not to be funded and for all other matters for which the Authority is required to raise money and shall apportion among members of the Authority the amounts so determined in accordance with the provisions of this act. Each amount so apportioned for each member shall, prior to December thirty-first of each year, be certified by the board of assessors of each city or town of such Authority. The assessors of each city or town shall without further vote include each amount so certified in those amounts to be annually raised by taxes under section twenty-three of chapter fifty-nine of the General Laws. The respective city or town shall pay the amount so certified to the treasurer of the Authority on or before July first of the then taxable year.

A city or town which has been assessed may raise all or a portion of the amounts certified annually by the Authority to the assessors of each city or town as provided in this act.

SECTION 13. The amount of money required each year by each city or each town in accordance with the apportionment determined as aforesaid shall be assessed upon each city, and each town in each year. Each such city and town shall be notified of the amount of such assessment by February first of the year following, which amount shall be paid by the city and each town to the treasurer of said Authority on or before July fifteenth following the receipt of notice of the amount of said assessment.

Host communities shall be responsible for contributing no less than ten percent and no greater than thirty percent of the total cost of the project. Total project cost shall be defined as the sum of the costs associated with purchase of the property, remediation, property assessment, marketing, and legal work performed on behalf of the Authority to acquire the property. The board shall give special consideration to any project in a member community that has yet to receive funding for projects from the Authority.

SECTION 14. To meet the costs of construction, maintenance, and operation of the facilities authorized by this act, the Authority may file an application for, or accept and use any federal or state funds or grants; or any federal or state assistance, or both, provided therefor, under any federal or state law or funds from any other sources.

The Authority may also apply for, and receive contributions from, public or private funding sources for the establishment of a capitalized mitigation fund, to be used for the purpose of financing project costs, and administered as a revolving loan fund to the host communities. Said contributions shall be reported in a yearly report of private contributions, to be prepared by the board, which shall, no later than February first of each year, submit a copy to the house and senate committees on ways and means, the state auditor, and to participating cities and towns. The Authority may expend funds from said capitalized mitigation fund on any project only after a majority vote of the board. Host communities receiving funding from said fund shall prepare a complete financial report detailing cost analysis and environmental impact.

SECTION 15. No lands, rights of ways, or other easements, property, structures, or rights acquired by the Authority, as herein provided, and located in the city or town in the Authority shall be assessed or taxed by the municipality so long as such property is owned by the Authority, response actions are on-going and the property and improvements thereon are not in beneficial reuse by third party as so determined in the judgment of the board. Following the completion of the response actions, transfer, or upon beneficial reuse of the property it shall be assessed or taxed by the municipality where the property is located and the municipality shall be responsible for paying annually on July first each year to each city or town which is a member of the Authority, less one percent of the tax collected to be paid as administrative fee, to the city or town wherein said property is located an amount equal to the amount it would receive if said property was located within its municipal boundaries in proportion to the amount of investment the city or town has made in said property pursuant to section eleven of this act.

SECTION 16. The board shall consist of one resident or municipal employee from each municipality that has voted to accept the provisions of this act and is a member of the Berkshire Economic Development Authority. The cities of Pittsfield and North Adams shall each have one member on the board. Official action shall require a positive vote of at least the majority of the board.

Members of the board of the cities of Pittsfield and North Adams shall be appointed by the mayor. Members of the board from the towns shall be appointed by the board of selectmen or the town manager in communities with a town manager form of government, according to each community's applicable provisions of the law. Members appointed to the board shall be residents or municipal employees of the community they represent.

Members of the board shall be appointed for terms of three years. Each member shall serve until the qualification of a successor. A board member may be reappointed by the legal appointing authority of such member's municipality as long as said municipality remains a member of the Authority.

SECTION 17. The board shall appoint and determine the compensation of an Authority director who shall be the chief executive officer of the Authority and shall administer the affairs and direct the work of the Authority as approved by the board; provided, however, that the Authority director shall not hold any elective office except that of town meeting member in any town within the jurisdiction of the Authority. The board shall set forth the powers and duties of the Authority's director in its bylaws.

The Authority's director may, upon approval of the board or as otherwise provided in the Authority's bylaws, enter into agreements for professional construction services to be provided to the Authority by private contractors. The Authority director shall be familiar with economic development in Berkshire county and shall possess such other qualifications as are determined by the board.

SECTION 18. The Authority shall have a seal consisting of a circular die bearing the words "Commonwealth of Massachusetts, Berkshire Economic Development Authority", which seal may be used whenever deemed advisable by the board on papers and documents issued or executed by the board or by any officer or employee designated by the board.

SECTION 19. The board shall prepare and adopt bylaws describing and stipulating its organization and operations. The board members shall annually, in the month of April, select a chairman, vice-chairman, and secretary, from among the membership who shall act as an executive committee. Members of the board may receive compensation from the Authority which shall not exceed five hundred dollars per year for a board member or one thousand dollars per year for the chairman, vice-chairman or secretary. Board members may be reimbursed for actual expenses incurred in performance of their duties on approval of the board.

The board shall appoint, and may at its pleasure, remove a treasurer and a clerk who shall not be members of the board. Both offices, if the board deems advisable, may be held by the same person. The treasurer shall give the board a bond payable to the Authority with a surety company authorized to transact business within the commonwealth and satisfactory to the board surety in such sums as the board may prescribe and conditioned on the faithful performance of the duties of treasurer. The duties of the treasurer and the clerk shall be those usually pertaining to such offices and, in addition, such as may be from time to time prescribed by the board. The board may retain legal counsel for any and all appropriate purposes.

The director, with the approval of the board, shall from time to time appoint or employ such other experts, agents, officers, clerks, and other employees as deemed necessary and shall determine their duties. The salaries or compensation of all persons appointed or employed under authority of this section shall be determined by the board and together with other expenses shall be paid by the Authority and shall be considered a part of the expense of maintenance of the Authority. The board shall establish an office within Berkshire county in which its business may be conducted and in which plans, documents, records and other paper relating to its business, land and other works and properties shall be kept.

The Authority shall at all times keep full and accurate accounts of its receipts, expenditures, disbursements, assets and liabilities, which shall be open at all times for inspection by the city, the towns, or other groups who are members of the Authority or by any officer or duly appointed agent of the commonwealth.

The board shall make a report each year of its activities for the preceding year and shall, prior to February first, submit a copy of such report to the state auditor and to participating cities and towns. A copy of such report shall also be submitted to the department of environmental protection.

SECTION 20. At any time not less than eight years after the acceptance of this act by a town or city, said town or city may, after approval by two-thirds of the qualified voters present and voting at an annual or special town meeting or election, notify the board of its desire to withdraw from the Authority.

Such withdrawal shall become effective in not less than two years after the receipt of such notice by the board and only after approval by the majority of the board. In the event of such withdrawal the withdrawing city or town shall:

(1) continue to pay annually to the Authority a share of the debt outstanding at the time of withdrawal at a rate prevailing at the time of withdrawal until a share of such debt shall be paid in full;

(2) be paid by the Authority for a share of those taxes or lease payments which accrue to the participant or participating community in accordance with the original commitment of said participant or participating community to a particular project as described in this act.

SECTION 21. Initial organization of the board established under the provisions of section eight shall take place within one hundred eighty days after the affirmative vote of at least one town meeting or city council for the formation of the Authority. If the board does not organize itself and form the Authority within one hundred eighty days, the action of the city council or town meeting shall be null and void.

SECTION 22. The Authority shall provide for early direct community involvement in each significant phase of response activities taken under this authority. This shall include providing the community with access to information necessary to develop comments on decisions regarding site characterization, risks posed by the site, and selection of removal actions.

Process for involvement: (1) site assessment - whenever practicable, during the site assessment, the Authority shall solicit and evaluate the concerns and interests of the community likely affected by the site by whatever means deemed appropriate by the Authority, (2) site cleanup - after assessment and feasibility study, and a method of cleanup has been determined, the Authority shall solicit the views and preferences of the community likely affected by this cleanup including the disposition of the hazardous substances, pollutants, or contaminants at the site.

SECTION 23. This section shall apply only to industrial portions of contaminated sites in the city of Pittsfield that are over one hundred contiguous acres in size and owned by a single owner as of the effective date of this act. For purposes of this section, "industrial portions" shall include those portions of such a site where industrial uses only are allowed pursuant to existing zoning, and for which notification has been required pursuant to chapter twenty-one E of the General Laws and 42 U.S.C. 6901 et seq. as of the effective date of this act and shall exclude any rivers, streams, and other bodies of surface water and the banks thereof.

The department of environmental protection is directed to promulgate rules and regulations after notice and hearing in accordance with chapter thirty A of the General Laws, to set up and implement a pilot project in the city of Pittsfield for the purpose of reuse and redevelopment to promote economic growth at said site. The department shall involve in the process all interested parties, including but not limited to, the United States Environmental Protection Agency, the attorney general of the commonwealth, the elected officials in the city of Pittsfield and the Massachusetts office of business development, or its successor. The department shall prepare a preliminary plan no later one hundred and twenty days after the effective date of this act and publish notice thereof in the state environmental monitor. This pilot project requires as an active party or parties, a prospective owner or owners, or a lessee lesses creating a substantial number of new jobs. This pilot project shall include (1) allowing the long-term use of one or more temporary solutions, as such term is defined in subsection (f) of section three A of chapter twenty-one E of the General Laws, to satisfy the remediation requirements of said section three A; (2) defining the standards that a proponent of such long-term temporary solution or solutions must satisfy with respect to the impacts of such solution or solutions on public health, safety, welfare and the environment; (3) establishing appropriate reporting and monitoring requirements for the construction and maintenance of such temporary solution or solutions; (4) defining the department's responsibilities for reviewing and approving such temporary solution or solutions and reporting and monitoring thereof; (5) providing for an appropriate and efficient process to allow public participation with respect to the department's approval and review of such temporary solution or solutions as set forth in clause (4); (6) defining the limited circumstances in which, upon petition of the department or another person or party, a permanent solution may be required in lieu of the continuation of such temporary solution or solutions; (7) providing a mechanism and financial assurances and standards for allowing an owner of such industrial or commercial property to sell or transfer a leasehold interest in such property to a third party and to transfer the responsibility for maintaining the temporary solution or solutions and for any other remediation which may be required as set forth herein; and (8) providing appropriate incentives to induce any participant in such a pilot project to complete remediation expeditiously.

SECTION 24. The department of environmental protection shall file with the clerks of the senate and the house of representatives on or before October fifteenth, nineteen hundred and ninety-six recommended legislation that addresses the issues of changes in remediation standards and liability requirements under chapter twenty-one E of the General Laws for "brownfields", so-called. The proposed legislation shall include but not be limited to: (1) establishing changes in existing law to provide appropriate relief to owners or leasehold tenants at sites from liability pursuant to clause (1) of subsection (a) of section 5 of said chapter 21E for response costs or for damage to personal or real property or natural resources arising from the actions or omissions of the prior owner; (2) establishing appropriate changes in existing law to allow the parties to such a sale or lease to indemnify the other with respect to liability as set forth in clause (1); and (3) establishing appropriate changes in law to relieve former owners of property from liability for injuries to real or personal property or natural resources that such former owner can demonstrate were caused by actions or omissions of third parties after the sale or transfer of the former owner's property.

SECTION 25. This act shall take effect upon its passage.