KRS 224.1-526: Corrective action plan completion report -- Review by cabinet --

Issuance and effect of corrective action liability agreement.

(1) Upon completion of those tasks outlined in an approved corrective action plan, the

applicant shall submit for the cabinet's review, within the timeframe proposed in the

corrective action plan, a corrective action completion report, and shall certify

therein that the applicant has successfully completed remediation in compliance

with the approved corrective action plan.

(2) The cabinet shall review the corrective action completion report in the same manner

as it reviewed the corrective action plan.

(3) The cabinet may conduct its own investigation including but not limited to its own

characterization to verify that r emediation has been completed in compliance with

the approved corrective action plan.

(4) If the cabinet determines that no further remediation is required under the approved

corrective action plan or any administrative regulations promulgated under KRS

224.1-400, 224.1 -405, and 224.1 -510 to 224.1 -532, the cabinet shall issue the

applicant a corrective action liability agreement.

(5) With respect to the releases identified in the corrective action plan, the corrective

action liability agreement shall preclude any suit or claim by the Commonwealth for

the prosecution of civil or administrative enforcement action against the applicant

for failure to perform remediation under KRS 224.1 -400, 224.1 -405, any

administrative regulations promulgated under these statu tes, or the Federal

Comprehensive Environmental Response Compensation and Liability Act as

amended, 42 U.S.C. sec. 9601 et seq., for injunctive relief, lien assertion,

reimbursement of costs, or civil penalties imposed under KRS 224.99 -010 for

failure to p erform remediation under KRS 224.1 -400 or 224.1 -405 and any

administrative regulations promulgated under these statutes.

(6) The corrective action liability agreement shall be in recordable form, and shall be

recorded by the applicant, along with all deed restrictions and institutional controls

approved by the cabinet, among the real estate records in the office of the county

clerk where the property is located, within thirty (30) days of issuance by the

cabinet. The corrective action liability agreement an d all deed restrictions,

restrictive covenants, and institutional controls approved by the cabinet as part of

the approved corrective action plan shall run with the land and inure to the benefit

of, and be enforceable by the cabinet against the applicant a nd all subsequent

landowners, assignees, transferees, or successors. The corrective action liability

agreement shall not be effective until it is recorded and a certified copy of the

record instrument is delivered to the cabinet.

(7) The corrective action liability agreement shall not apply to:

(a) Releases other than those expressly identified in the corrective action plan;

(b) Claims based on the failure of the applicant, or the failure of any successive

landowner as applicable, to comply with a requireme nt of KRS 224.1 -510 to

224.1-532, the approved corrective action plan, or the approved corrective

action completion report, including any required land use restrictions and

engineering or institutional controls;

(c) Liability resulting from the applicant's exacerbation of the releases identified

in the corrective action plan;

(d) Criminal liability;

(e) Petroleum storage tanks;

(f) Claims or liability based on or resulting from misrepresentations or intentional

omissions by the applicant;

(g) Liability for any conditions at the site that were not known to the cabinet when

the cabinet approved the corrective action plan or the corrective action

completion report, provided those conditions prevent the remediation from

being protective of human health, safety, and the environment;

(h) Claims based on changes in the development of scientific knowledge, as

reflected in published peer -reviewed health or environmental standards, that

indicate that the remediation is no longer protective of human health, safety,

and the environment;

(i) An environmental emergency as defined in KRS 224.1-400;

(j) Any cabinet action for damages for injury to, destruction of, or loss of natural

resources, including the reasonable costs of assessing such injur y, destruction,

or loss resulting from such a release pursuant to the Federal Comprehensive

Environmental Response Compensation and Liability Act as amended, 42

U.S.C. sec. 9601 et seq.; and

(k) Any administrative or civil action by the cabinet not express ly identified in

subsection (5) of this section.

(8) Subject to subsection (7) of this section, the issuance of a corrective action liability

agreement for a brownfield site, as defined in 42 U.S.C. sec. 9601(39), shall

preclude any suit or claim under state law to compel the performance of remediation

in excess of that required in the approved corrective action plan.

(9) The issuance of a corrective action liability agreement shall not be construed to

limit:

(a) Appeals of final cabinet orders and determin ations as provided for in this

chapter;

(b) Actions against the cabinet to compel compliance with the terms of the

corrective action plan; or

(c) The availability of remedies to persons, other than the cabinet, for injury to

property or person.