§ 23.1-10-15 — Voluntary response actions - Liability protection - Procedures

1. Subject to the provisions of this section, a person that is not otherwise responsible
under this chapter or another environmental law for a release or threatened release is
not responsible solely because the person undertakes and completes response
actions to remove or remedy releases or threatened releases at an identified area of
real property in accordance with a voluntary cleanup agreement.
2. A person requesting liability protection under this section shall submit an application in
the form required by the department. The requestor also shall submit a voluntary
response action plan that includes an investigation report prepared by an appropriate
professional describing the methods and results of an investigation of the releases and
threatened releases at the identified area of real property, methods of investigation,
and the analytical results and professional's evaluation of the reported information.
The department may approve the application only if the department determines the
nature and extent of the releases and threatened releases at the identified area of real
property have been identified and evaluated adequately in the investigation report. The
department's approval also must be based on consideration of the following:
a. If reuse or development of the property is proposed, the voluntary response
action plan provides for all response actions required to carry out the proposed
reuse or development;
b. The response actions and the activities associated with any reuse or
development proposed for the property will not aggravate or contribute to
releases or threatened releases that are not required to be removed or remedied
under the voluntary response action plan, and will not interfere with or
substantially increase the cost of response actions to address the remaining
releases or threatened releases; and
c. The owner of the property or other relevant person agrees to cooperate with the
department or other persons acting at the department's direction in taking
response actions necessary to address remaining releases or threatened
releases, and to avoid any action that interferes with the response actions.
3. If the department approves the application, the department and requestor shall enter a
voluntary cleanup agreement in which the department agrees to take no action under
title 23.1 and chapters 61-28 and 61-28.1 against the requestor and those persons
identified in subsection 5 so long as the plan is implemented pursuant to the
agreement's terms and with the exercise of due care. As part of the agreement, the
department may require the owner, requestor, or other relevant person agrees to any
of the following conditions:
a. To provide access to the property;
b. To allow reasonable and necessary activities at the property, including placement
of borings, wells, equipment, and structures on the property; and
c. To enter an environmental covenant for the property containing institutional
controls under chapter 47-37. Alternatively, institutional controls may be imposed
on the property using zoning regulations under section 23.1-10-16.

4. Response actions taken under a voluntary cleanup agreement are not complete until
the department certifies completion in writing. The department shall issue a certificate
of completion if the parties demonstrate to the department's satisfaction the response
action is complete. If a voluntary response action plan does not require removal or
remedy of all regulated substances, the department may condition the certificate of
completion on the owner's, requestor's, or other relevant person's continued
compliance with conditions in the voluntary cleanup agreement or other conditions
deemed necessary by the department.
5. In addition to the person that undertakes and completes a voluntary response action
pursuant to a voluntary cleanup agreement, the liability protection provided by this
section applies to the following persons so long as the persons comply with any
conditions imposed by the department under subsection 4:
a. The owner of the identified property, if the owner is not responsible for any
release or threatened release identified in the approved voluntary response
action plan;
b. A person providing financing to the person that undertakes and completes the
response actions or that acquires or develops the identified property;
c. A fiduciary that arranges for the undertaking and completion of response actions;
and
d. A successor or assignee of a person to which the liability protection applies.
6. Notwithstanding subsection 1, when a person that is responsible for a release or
threatened release undertakes and completes response actions, the protection from
liability provided by this section applies to persons described in subsection 5 if the
response actions are undertaken and completed in accordance with the following:
a. The response actions must be undertaken and completed in accordance with a
voluntary cleanup agreement.
b. When the department issues a certificate of completion for response actions
completed by a responsible party, the department and the responsible party may
enter an agreement that resolves the responsible party's future liability to the
department for the release or threatened release addressed by the response
actions.
7. The protection from liability provided by this section does not apply to a person that:
a. Aggravates or contributes to a release or threatened release that was not
remedied under an approved voluntary response action plan; or
b. Obtains the department's approval of a voluntary cleanup agreement for
purposes of this section by fraud or misrepresentation or by knowingly failing to
disclose material information, or that knows the approval was so obtained before
taking an action that would have made the person subject to the protection of this
section.
8. This section does not affect the authority of the department to exercise any powers or
duties with respect to a new or additional release or threatened release of a regulated
substance on a property or site regulated under this section, or the right of the
department or any other person to seek legal or equitable relief against a person not
subject to a liability protection provided under this section.