Sometime this past month, a significant shift happened in the way DNREC SIRS treats entrants into the Delaware Brownfields Program and it's a shift that you need to be aware of if you plan to do Brownfields redevelopment in Delaware. For the past decade or so, if you wanted to redevelop a Brownfields property, you would send in the Brownfields Certification Application and, upon submitting your application (assuming that you are not otherwise a "potentially responsible party" under HSCA), you would receive environmental liability protection from the hazardous substances existing on the property. This is because DNREC interpreted HSCA to say that applicants into the Brownfields program received liability protection upon the submission of the certification application. This interpretation was particularly helpful if you wanted to move quickly to acquire the property and deal with the environmental issues after closing. It was also helpful if you wanted to keep your discussions regarding site acquisition somewhat confidential since there was no public notice required at the time of application submission.
However, that ability to move quickly has now changed. DNREC SIRS has taken another look through HSCA and decided that environmental liability protection only kicks in once the Brownfields Development Agreement (the "BDA") has been executed. Negotiation of the BDA happens after certification of both the property and the potential Brownfields Developer. Although there is a template BDA, there are circumstances where you may want (or need) to deviate from the standard language in the template. Even under the best circumstances (i.e., assuming no substantial changes to the BDA), DNREC must provide public notice within 20 days after entering into negotiations for a BDA and provide a 20-day public notice and comment period AFTER entering into a BDA. Generally, no comments are received, but if you are looking for certainty in what you will be required to do (or not do) under the BDA, you won't have that until the end of the comment period.