SEC. 49-35-15 Liability protections; exceptions; additional remediation; conditions; completed performance; order by commission; letter.
(1) Except as provided under subsection (5) of this section and Section 7(2) of this act, a brownfield party who executes a brownfield agreement shall be relieved of liability to all persons other than the United States for: (a) remediation of the brownfield agreement site other than the remediation required by the brownfield agreement; and (b) all costs reasonably related to the remediation other than the remediation and costs required by the brownfield agreement or this act. However, this act shall not affect the right of any person to seek relief against any party to the brownfield agreement who may have liability with respect to a brownfield agreement site, except as provided in this section.
(2) The liability protection provided under this section applies to the following persons to the same extent as to a brownfield party:
(a) Any person under the direction or control of the brownfield party who directs or contracts for remediation or redevelopment of the brownfield agreement site;
(b) Any current owner and any future owner of the brownfield agreement site;
(c) Any person who develops, redevelops or lawfully occupies the brownfield agreement site;
(d) Any successor or assign of any person to whom the liability protection provided under this section applies; and
(e) Any lender or fiduciary that provided financing for remediation or redevelopment of the brownfield agreement site.
(3) A person who conducts an environmental assessment on a brownfield agreement site and who is not otherwise a potentially responsible party shall not become a potentially responsible party as a result of conducting the environmental assessment, unless that person increases the risk of harm to public health or the environment by failing to exercise due diligence and reasonable care in performing the environmental assessment.
(4) The liability protection provided under this section shall become effective upon execution of a brownfield agreement and shall remain effective, unless the commission removes the liability protection under Section 7(2) of this act.
(5) A brownfield party who completes the remediation required under a brownfield agreement and any other person who receives liability protection under this section shall not be required to perform additional remediation on or under the brownfield agreement site unless:
(a) The brownfield party provides to the commission false information or fails to disclose to the commission relevant information about environmental contamination on or under the brownfield agreement site that forms a basis for the brownfield agreement or that is offered to demonstrate compliance with the brownfield agreement;
(b) New information becomes available after execution of the brownfield agreement indicating the existence of previously unknown contaminants or an area of previously unknown environmental contamination that has not been remediated to standards required by applicable federal or state law other than this act. The brownfield agreement may be amended to include remediation of any previously unknown contaminants and any additional areas in the same brownfield agreement site;
(c) The level of risk to public health or the environment resulting from the brownfield agreement site is increased beyond the level that forms a basis for the risk-based remediation requirements in the brownfield agreement due to changes in exposure conditions, including (i) a change in land use at the site or contiguous to the site that increases the probability of exposure to contaminants on or under the brownfield agreement site or (ii) the failure of remediation to mitigate risks to the extent required to make the brownfield agreement site fully protective of public health and the environment as provided in the brownfield agreement;
(d) The department obtains new information after execution of the brownfield agreement about a contaminant on or under the brownfield agreement site that increases the risk to public health or the environment on or under the brownfield agreement site beyond the level that is the basis for the risk-based remediation requirements in the brownfield agreement and in a manner or to a degree not anticipated in the brownfield agreement; or
(e) A brownfield party fails to file a timely and proper notice of brownfield agreement site under Section 9 of this act.
(6) Upon completion of the brownfield agreement, the brownfield party may petition the commission to determine that the performance of the brownfield agreement has been completed. If the commission determines after conducting an inspection of the brownfield agreement site that the brownfield party has completed the brownfield agreement, the commission shall issue an order. Following issuance of an order by the commission, the executive director shall issue a "no further action" letter. The letter shall include the following statement: "Based upon the information provided by (brownfield agreement party) concerning property located at (location), it is the opinion of the Commission on Environmental Quality that (brownfield agreement party) has successfully and satisfactorily implemented and completed the approved brownfield agreement. No further action is required to assure that the remediation required under the brownfield agreement is protective of public health and the environment in accordance with the existing and proposed uses of this property."
Source: Laws, 1998, Ch. 528, § 8, SB 2989, eff July 1, 1998.