§ 56-0509 — Liability limitation

§ 56-0509. Liability limitation.\n 1. (a) Notwithstanding any other provision of law and except as\nprovided in subdivision two of this section and in paragraph (h) of\nsubdivision two of section 56-0503 of this title, the following shall\nnot be liable to the state upon any statutory or common law cause of\naction, or to any person upon any statutory cause of action arising out\nof the presence of any contamination in or on property at any time\nbefore the effective date of a contract entered into pursuant to this\ntitle or written agreement pursuant to subdivision three of section\n56-0503 of this title:\n (i) a municipality receiving state assistance under this title to\nundertake, or under written agreement pursuant to subdivision three of\nsection 56-0503 of this title for the state to undertake an\nenvironmental restoration project and complying with the terms and\nconditions of the contract or written agreement pursuant to subdivision\nthree of section 56-0503 of this title providing such assistance; and\n (ii) a successor in title to the real property subject to an\nenvironmental restoration project; any lessee of such property; and any\nperson that provides financing to such party relative to the\nremediation, restoration, or redevelopment of such property; provided\nthat such successor in title, lessee, or lender did not generate,\narrange for, transport, or dispose, and did not cause the generation,\narrangement for, transportation, or disposal of any contamination\nlocated at such property, and did not own such property.\n (b) Notwithstanding any other provision of this title, any person\nseeking the benefit of this subdivision shall bear the burden of proving\nthat a cause of action, or any part thereof, is attributable solely to\ncontamination present in or on such parcel before the effective date of\nsuch contract.\n 2. Subdivisions one and three of this section shall not apply to\nrelieve any municipality, successor in title, lessee, or lender from\nliability arising from:\n (a) failing to implement such project to the department's satisfaction\nor failing to comply with the terms and conditions of the contract;\n (b) fraudulently demonstrating that the cleanup levels identified in\nor to be identified in accordance with such project were reached;\n (c) causing the release or threat of release at the property subject\nto such project of any contamination after the effective date of such\ncontract; or\n (d) changing such property's use from the intended use as identified\nin the contract pursuant to section 56-0503 of this title to a use\nrequiring a lower level of residual contamination unless the additional\nremedial activities are undertaken which shall meet the same standard\nfor protection of public health and the environment that applies to\nremedial actions undertaken pursuant to 27-1313 of this chapter so that\nsuch use can be implemented with sufficient protection of public health\nand the environment.\n 3. The state shall indemnify and save harmless any municipality,\nsuccessor in title, lessee, or lender identified in paragraph (a) of\nsubdivision one of this section in the amount of any judgment or\nsettlement, obtained against such municipality, successor in title,\nlessee, or lender in any court for any common law cause of action\narising out of the presence of any contamination in or on property at\nanytime before the effective date of a contract entered into pursuant to\nthis title. Such municipality, successor in title, lessee, or lender\nshall be entitled to representation by the attorney general, unless the\nattorney general determines, or a court of competent jurisdiction\ndetermines, that such representation would constitute a conflict of\ninterest, in which case the attorney general shall certify to the\ncomptroller that such party is entitled to private counsel of its\nchoice, and reasonable attorneys' fees and expenses shall be reimbursed\nby the state. Any settlement of such an action shall be subject to the\napproval of the attorney general as to form and amount, and this\nsubdivision shall not apply to any settlement of any such action which\nhas not received such approval.\n 4. A municipality receiving state assistance and any successor in\ntitle shall implement a department-approved environmental sampling\nprogram and, in the event that conditions on such property are not\nsufficiently protective of human health for its current use due to\nenvironmental conditions related to the property subject to such project\nthat were unknown to the department as of the effective date of such\ncontract or due to information received in whole or in part after the\ndepartment's approval of such project's final engineering report and\ncertification, take such emergency measures that are necessary to\nmaintain sufficient protection of human health for such property's\ncurrent use until such conditions are addressed; and the department\nshall take such measures as it may determine are necessary to return\nsuch property to a condition sufficiently protective of human health\nusing monies from the environmental restoration project account of the\nhazardous waste remedial fund established under section ninety-seven-b\nof the state finance law.\n 5. In addition to any other powers the department may have, including,\nbut not limited to, the powers set forth in section 56-0515 of this\ntitle, the department shall have the authority to periodically inspect\nproperty to ensure that the use of the property complies with the terms\nand conditions of the contract and any engineering and/or institutional\ncontrols placed on the property.\n