§ 27-1421 — Liability limitation

§ 27-1421. Liability limitation.\n 1. Notwithstanding any other provision of law and except as provided\nin subdivision two of this section, after the department has issued a\ncertificate of completion for a brownfield site, the applicant shall not\nbe liable to the state upon any statutory or common law cause of action,\narising out of the presence of any contamination in, on or emanating\nfrom the brownfield site that was the subject of such certificate at any\ntime before the effective date of a brownfield site cleanup agreement\nentered into pursuant to this title, except that a participant shall not\nreceive a release for natural resource damages that may be available\nunder law.\n 2. (a) The state nonetheless shall reserve all of its rights\nconcerning, and such liability limitation shall not extend to, any\nfurther investigation and/or remediation the department deems necessary\ndue to:\n (i) environmental contamination at, on, under, or emanating from the\nbrownfield site if, in light of such conditions, the site is no longer\nprotective of public health or the environment; or\n (ii) non-compliance with the terms of the agreement, the remedial work\nplan and the certificate of completion required by this title; or\n (iii) fraud committed by the applicant in its application for or\nparticipation in this program; or\n (iv) a written finding by the department that a change in an\nenvironmental standard, factor, or criterion upon which the remedial\nwork plan or no further action determination was based, renders the\nbrownfield site remedial program implemented at the site no longer\nprotective of public health or the environment; or\n (v) a change in the brownfield site's use subsequent to the\ndepartment's issuance of the certificate of completion unless additional\nremediation is undertaken which shall meet the standard for protection\nof public health and the environment that applies under this title; or\n (vi) following the certificate of completion the failure of an\napplicant to make substantial progress toward completion of its proposed\ndevelopment of the site within five years, or the applicant engages in\nunreasonable delay and fails to complete its proposed development of the\nsite within a reasonable time, considering the size, scope and nature of\nthe development. Provided however, that this subparagraph shall not\napply in the case where a Track 1 - unrestricted use as provided in\nsection 27-1415 of this title is achieved.\n (b) In the case of a volunteer, subparagraph (v) of paragraph (a) of\nthis subdivision shall not apply if Track 1-unrestricted use as provided\nin section 27-1415 of this title is achieved.\n 3. The liability limitation provided pursuant to this section shall\nrun with the land, extending to the applicant's successors or assigns\nthrough acquisition of title to the brownfield site and to a person who\ndevelops or otherwise occupies the brownfield site; provided that such\npersons act with due care and in good faith to adhere to the\nrequirements of the brownfield site cleanup agreement and certificate of\ncompletion. However, such liability limitation does not extend, and\ncannot be transferred, to a person who is responsible for the disposal\nor the discharge of contaminants on such site according to applicable\nprinciples of statutory or common law liability as of the effective date\nof the certification of completion issued pursuant to this title, unless\nthat person was party to the brownfield site cleanup agreement for the\nbrownfield site pursuant to this article.\n 4. The provisions of this title shall not affect an action or a claim,\nincluding a statutory or common law claim for contribution or\nindemnification, that an applicant has or may have against a third\nparty.\n 5. Nothing in this section shall be construed to affect either the\nliability of any person with respect to any costs, damages, or\ninvestigative or remedial activities that are not included in the\nbrownfield site cleanup agreement or remedial investigation work plan\nand/or remedial work plan for the brownfield site or the state's\nauthority to maintain an action or proceeding against any person who is\nnot subject to the brownfield site cleanup agreement.\n 6. A person who has received a liability limitation under this\nsubdivision shall not be liable for claims for contribution regarding\nmatters addressed in the brownfield site cleanup agreement except\nnothing in this section shall effect the liability of the person\nresponsible for such person's own acts or omissions causing wrongful\ndeath or personal injury. Such liability limitation does not discharge\nany of the persons responsible under law to investigate and remediate\nthe contamination, but it reduces the potential liability of the others\nby the amount of the value associated with the remediation activities\ndescribed in the final engineering report.\n 7. Nothing in this section shall be construed to affect the authority\nof the department to reach settlement with other persons consistent with\nits authority under applicable law.\n 8. Nothing in this section shall affect the liability of any person\nwith respect to any civil action brought by a party other than the\nstate.\n 9. In addition to any other powers the department may have, the\ndepartment shall have the authority to periodically inspect each\nbrownfield site to ensure that the use of the property complies with the\nterms and conditions of the brownfield site cleanup agreement.\n