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Brownfields Tax Credit Updates to Take Effect July 9, 2021

The LSPA received the following email yesterday regarding changes to the Brownfields Tax Credit program regulations and administrative procedures. These changes take effect today, Friday, July 9, 2021.  

Separate from but related to the staffing item below is this job posting for a Brownfields Credit Specialist position with the MA Department of Revenue. This position is also posted on the LSPA's Job Board. 

The MA Executive Office for Administration and Finance email reads:  

I am reaching out to inform you that tomorrow, July 9, 2021, the Administration will be implementing various administrative changes to improve the Brownfields Tax Credit and streamline the application process.

As you are aware, in recent months, the Executive Office for Administration & Finance convened an interagency working group with representatives from DOR, DEP, A&F, HED, and EEA to examine how to optimize the Brownfields Tax Credit.

This process and these upcoming changes have been informed by public feedback through the G.L. c. 30A process for regulations and multiple listening sessions. DOR will execute these changes by finalizing the Brownfields Tax Credit regulations (830 CMR 63.38Q.1) and issuing a revised administrative procedure for the program. The changes are summarized below.  

Regulation
  • Scope of Review on Appeal – For partial appeals, DOR will review only the denied portion of an application; the approved portion of an application will only be reviewed if there was a material misrepresentation or omission.
  • Denial Explanation – DOR will provide an explanation for each credit denial.
  • Asbestos Eligibility – DOR will deem asbestos removal costs to be generally eligible as long as the soil immediately under the building is contaminated and the building’s demolition was required in order to achieve a permanent solution.
  • Multiple Releases – For purposes of determining whether an applicant’s costs equal or exceed 15% of the assessed value of the property (as is required to become eligible for the credit), an applicant may aggregate net response and removal costs over a 3-year period when there are multiple contaminated sites on one property.
  • Effective Date of Regulation – By its terms, the regulation will go into effect when it is made public on July 9, 2021.
Subregulatory Guidance
  • Intake Timeline – When an application is submitted, DOR will contact the applicant within 30 days to notify them of which examiner has been assigned to the case and to outline the application review process.
  • Intake Narrative – To accelerate DOR’s initial review, applicants will be directed to provide a narrative explaining why submitted costs are eligible.
  • Review Process Updates – Applicants will receive a status update from the examiner assigned to their case every 60 days.
  • Expedited Timeline – An expedited process will be established for lower-dollar, less complex BTC projects¾those worth $250K or less. Such applicants will be contacted within 7 days and will receive updates every 30 days.
  • Appeals Timeline – DOR has established a timeframe for the processing of appeals. The stages of the process are as follows:
    1. Appeal is initiated. This occurs when the Office of Appeals receives the appeal.
    2. Initial Scheduling Letter sent. Within 30 days of Stage 1.
    3. Complete Appeal filed by Applicant. Within 60 days of Stage 1.
    4. Opening Conference held. Within 90 days of Stage 1.
    5. Information and Document Requests (IDRs) issued and answered. These are to be issued by the Appeals Officer within 60 days of the Opening Conference (Stage 4) and are to be answered by the Applicant within 30 days after they were issued.
    6. Formal Scheduling Letter sent (if no settlement has been reached). Within 60 days after all IDRs have been answered.
    7. Formal Hearing held. No later than 60 days after the Formal Scheduling Letter has been issued.
    8. Formal Letter of Determination issued. 60 days after the Formal Hearing. If the appeal is complex, this stage may be extended by an additional 90 days.
Additional Resources
  • Staffing – DOR will hire a dedicated environmental engineer and is also hiring and training 3 additional audit staff members.
Public Engagement
  • Revisit Regulation in 2 Years – DOR will solicit stakeholder feedback on the regulation two years from the date of final promulgation.
DOR plans to make public the final regulations and revised administrative procedure on Friday, July 9, 2021—the date that they will also take effect.

We’d like to thank you all for your helpful guidance and partnership during this process. If you have any questions, please do not hesitate to reach out.
 
Thank you,

Cassandra

Cassandra B. Roeder
Associate General Counsel
Executive Office for Administration and Finance
State House, Room 373
Boston, MA 02133
(857) 400-5431


Brownfields Workshop

The Brownfield Coalition of the Northeast (BCONE) is hosting the 2021 Northeast Sustainable Communities Workshop on June 22 and 23.

Please consider joining MassDEP staff and LSPA members as they present "Developing a Brownfields Site in MA: Building a Toolkit for Success."

LSPA members can attend at the BCONE Partner rate. Please email [email protected] for the promotional code.  

Special shout out and congratulations to our colleague Jamie Smith, Environmental Compliance Manager with the City of Boston’s Department of Neighborhood Development, whose contributions will be celebrated with the Geoffrey R. Forrest Outstanding Individual Achievement Award. The LSPA has the pleasure of working with Jamie in his role as a member of the LSP Board of Registration of Hazardous Waste Site Cleanup Professionals.


Ten Takeaways from MassDEP’s March 19, 2021 Waste Site Cleanup Advisory Committee (WSCAC) Meeting

Members of the LSPA Regulations Committee sat in on this meeting (see the recording here) and present the following takeaways, in no particular order.

  • 2019 MCP Revisions. The MCP amendments continue to be edited and revised in response to comments. Once finalized, which is expected to be “later this spring,” they will go into effect (with a grace period), and MassDEP will provide training and updated risk guidance.
  • Private Well Sampling and IH Level of 90 ppt.  MassDEP is communicating with local Boards of Health and private well owners in ~80 towns that rely primarily on private water sources. MassDEP is aiming to collect data from both private wells near potential (known) PFAS sources and wells randomly located, as an approach to gaining a better understanding of background levels of PFAS in groundwater. If PFAS is detected in a residential well, a homeowner will not be required to notify MassDEP; in the absence of an identified on-site source, MassDEP will assume that homeowners have Downgradient Property Status, and MassDEP will hold in abeyance the issuance a Notice of Responsibility (NOR). MassDEP will work with homeowners to reduce risk; a drinking water Imminent Hazard PFAS6 concentration of 90 ppt has been established by MassDEP.
  • Multi-Lab Audit Findings.  Ken Marra and Liz Callahan summarized the results of the audit, which was initiated in 2016 and evaluated data packages for VPH/EPH/APH/TO-15. The Multi-Lab Data Audit Report (March 2021) has been posted here. Generally, laboratories did well with the TO-15 and APH analyses. There were potential low bias issues with VPH & EPH analyses in approximately one-half of the data packages, resulting in MassDEP issuing revisions to the VPH methods (February 2018) and EPH methods (December 2019) to clarify the issues. MassDEP does not anticipate doing a systematic review of past submittals relative to the low bias issues identified, but is considering measures for more routine checking of laboratory quality.

    If you are interested in participating in subgroup meetings regarding laboratory data quality, please send an email to [email protected].
  • MassDEP Focus on Environmental Justice.  Deneen Simpson, MassDEP’s Director of Environmental Justice, summarized MassDEP’s work since June 2020 to evaluate the agency’s internal and external culture, practices, and policies related to environmental justice and equity. This work involves regional offices as well as a focus by the Commissioner. MassDEP is working to diversify advisory and stakeholder groups, and has developed and is implementing Environmental Justice Public Involvement Plan Guidance (currently an internal document only) on approaches to  engage diverse communities. MassDEP’s EJ Team meets quarterly. Rishi Reddi is the Director of Environmental Justice at the Executive Office of Energy and Environmental Affairs (EEOA), and the EJ Team also includes Liz Callahan and Peggy Shaw of BWSC. 
  • Refreshing the Waste Site Cleanup Advisory Committee (WSCAC).  MassDEP is evaluating the composition of its stakeholder groups. The WSCAC is not created by statute and therefore MassDEP has flexibility regarding its composition, meeting format, etc. MassDEP would like to expand representation to ensure the full range of program stakeholders and would like to seek additional representation from EJ communities, PIP group members, student representatives, environmental advocacy groups, and/or subject matter experts. The Department is considering establishing term limits, establishing a set meeting schedule (likely quarterly), and varying meeting times and locations. The WSCAC members discussed their thoughts on the various proposals. If you have ideas of how MassDEP might conduct outreach to expand the representation of the advisory committee, please email [email protected].
  • Office Hours and WSCAC Meetings.  MassDEP expects to continue holding virtual meetings, but anticipates switching from the Zoom platform to another platform for its Thursday morning “office hours” and WSCAC meetings.  The frequency of weekly office hours will probably be reduced, and WSCAC meetings will likely be held quarterly.
  • Brownfields Tax Credits. The Massachusetts Department of Revenue is considering comments on its proposed new brownfields tax credit regulations.  An interagency workgroup has recently conducted listening sessions about the brownfields tax credit program.  They expect to have workgroup findings within a couple of months.
  • Searching for COCs on Waste Site/Spills Look Up.  Paul Locke confirmed that it is not possible for the public or MassDEP to search the site lookup database by COCs.
  • BWSC Grant Programs update.  Liz Callahan provided an update on various grant programs, including:
    • Natural Resource Damages – grant opportunity related to Former National Fireworks Site in Hanover
    • Technical Assistance
    • Marine Oil Spill Prevention & Response

LSPA Members Identify Their Priority Issues

On February 1, 2021, the LSPA sent an email blast to all members asking them to rank nine practice issues, involving various regulations, policies, and programs, in order of importance to them.  Our intent was to help focus our resource and advocacy efforts on the issues most important to our members.  

We received responses from about 20% of our members (lower than usual for LSPA surveys) and you told us that your top three issues were:
  1. Finalize outstanding guidance/policies: AULs, Engineered Barriers, Historic Fill, etc. (MassDEP)
  2. Soil Management: Assist with needed capacity, beneficial uses, PFAS disposal (MassDEP and others)
  3. PFAS: Address background conditions and MCP release exemptions (MassDEP)
Each of these three issues were in the top three choices for over 50% of the respondents. 

Here are the percentages of respondents who listed the other issues as a top three choice:
  1. Asbestos in Soil: Streamline and clarify regulations (MassDEP) – 29%
  2. PFAS Private Well Sampling Program: Address MCP responsibility and liability issues (MassDEP) – 26%
  3. LSP Board of Registration: Update regulations, improve operations (EOEEA) – 23%
  4. 21J Fund: Reconcile LSP decision making and allowed reimbursements (MA Department of Revenue) – 18%
  5. Brownfields Tax Credits: Reconcile LSP decision making and allowed reimbursements (MA Department of Revenue) – 17%
  6. Public Involvement: Update guidance documents (MassDEP) – 8%%
Many thanks to the 60+ members who volunteered to be involved in LSPA efforts to advance these issues; in fact, many respondents volunteered to work on several issues. At this time, LSPA leadership is discussing how best to proceed and we expect that in the coming weeks, an LSPA Board member or Committee Chair will reach out to volunteers to invite them to participate in a committee or focus group, or even help form a new subcommittee. So stay tuned!

We look forward to working together to make some progress on these issues. Please don’t hesitate to contact [email protected] with suggestions and questions.
Michele Paul, LSP
LSPA President

 

Upcoming BCONE Virtual Event: Developing Planning: Utilizing Incentives

 

Register Now!

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LSPA Comments on MA Brownfields Tax Credit Regulation

On Friday, April 3, 2020 the LSPA submitted comments to the MA Department of Revenue on Working Draft Regulation 830 CMR 63.38Q.1, the Massachusetts Brownfields Tax Credit. Read our cover letter and the accompanying spreadsheet which presents our comments in more detail. Many thanks to the LSPA's Regulations Committee for compiling comments and to the many LSPA members who shared their feedback on the Working Draft regulation.