N.Y. Environmental Conservation Law § 27-1421: Liability limitation

§ 27-1421. Liability limitation.

1. Notwithstanding any other provision of law and except as provided

in subdivision two of this section, after the department has issued a

certificate of completion for a brownfield site, the applicant shall not

be liable to the state upon any statutory or common law cause of action,

arising out of the presence of any contamination in, on or emanating

from the brownfield site that was the subject of such certificate at any

time before the effective date of a brownfield site cleanup agreement

entered into pursuant to this title, except that a participant shall not

receive a release for natural resource damages that may be available

under law.

2. (a) The state nonetheless shall reserve all of its rights

concerning, and such liability limitation shall not extend to, any

further investigation and/or remediation the department deems necessary

due to:

(i) environmental contamination at, on, under, or emanating from the

brownfield site if, in light of such conditions, the site is no longer

protective of public health or the environment; or

(ii) non-compliance with the terms of the agreement, the remedial work

plan and the certificate of completion required by this title; or

(iii) fraud committed by the applicant in its application for or

participation in this program; or

(iv) a written finding by the department that a change in an

environmental standard, factor, or criterion upon which the remedial

work plan or no further action determination was based, renders the

brownfield site remedial program implemented at the site no longer

protective of public health or the environment; or

(v) a change in the brownfield site's use subsequent to the

department's issuance of the certificate of completion unless additional

remediation is undertaken which shall meet the standard for protection

of public health and the environment that applies under this title; or

(vi) following the certificate of completion the failure of an

applicant to make substantial progress toward completion of its proposed

development of the site within five years, or the applicant engages in

unreasonable delay and fails to complete its proposed development of the

site within a reasonable time, considering the size, scope and nature of

the development. Provided however, that this subparagraph shall not

apply in the case where a Track 1 - unrestricted use as provided in

section 27-1415 of this title is achieved.

(b) In the case of a volunteer, subparagraph (v) of paragraph (a) of

this subdivision shall not apply if Track 1-unrestricted use as provided

in section 27-1415 of this title is achieved.

3. The liability limitation provided pursuant to this section shall

run with the land, extending to the applicant's successors or assigns

through acquisition of title to the brownfield site and to a person who

develops or otherwise occupies the brownfield site; provided that such

persons act with due care and in good faith to adhere to the

requirements of the brownfield site cleanup agreement and certificate of

completion. However, such liability limitation does not extend, and

cannot be transferred, to a person who is responsible for the disposal

or the discharge of contaminants on such site according to applicable

principles of statutory or common law liability as of the effective date

of the certification of completion issued pursuant to this title, unless

that person was party to the brownfield site cleanup agreement for the

brownfield site pursuant to this article.

4. The provisions of this title shall not affect an action or a claim,

including a statutory or common law claim for contribution or

indemnification, that an applicant has or may have against a third

party.

5. Nothing in this section shall be construed to affect either the

liability of any person with respect to any costs, damages, or

investigative or remedial activities that are not included in the

brownfield site cleanup agreement or remedial investigation work plan

and/or remedial work plan for the brownfield site or the state's

authority to maintain an action or proceeding against any person who is

not subject to the brownfield site cleanup agreement.

6. A person who has received a liability limitation under this

subdivision shall not be liable for claims for contribution regarding

matters addressed in the brownfield site cleanup agreement except

nothing in this section shall effect the liability of the person

responsible for such person's own acts or omissions causing wrongful

death or personal injury. Such liability limitation does not discharge

any of the persons responsible under law to investigate and remediate

the contamination, but it reduces the potential liability of the others

by the amount of the value associated with the remediation activities

described in the final engineering report.

7. Nothing in this section shall be construed to affect the authority

of the department to reach settlement with other persons consistent with

its authority under applicable law.

8. Nothing in this section shall affect the liability of any person

with respect to any civil action brought by a party other than the

state.

9. In addition to any other powers the department may have, the

department shall have the authority to periodically inspect each

brownfield site to ensure that the use of the property complies with the

terms and conditions of the brownfield site cleanup agreement.