Chapter 152

2016 -- S 2802 SUBSTITUTE A Enacted 06/27/2016

A N   A C T

RELATING TO HEALTH AND SAFETY - INDUSTRIAL PROPERTY REMEDIATION AND REUSE ACT

Introduced By: Senator William J. Conley

Date Introduced: March 23, 2016

It is enacted by the General Assembly as follows:

SECTION 1. Section 23-19.14-7 of the General Laws in Chapter 23-19.14 entitled

"Industrial Property Remediation and Reuse Act" is hereby amended to read as follows:

23-19.14-7. Exemptions to liability. -- The following parties are not responsible parties

and shall not be held liable for costs or damages associated with a release of hazardous material

and/or petroleum:

(1) Persons otherwise liable who can establish by a preponderance of the evidence that

the release, or threat of release, of a hazardous substance and the damages resulting from that

release, or threat of release, were caused solely by an act of God or an act of war;

(2) Bona fide prospective purchasers who have received of, or tenants on, properties for

which the following have been issued:

(i) A remedial decision letter and are actively engaged in implementing the remedial

action approved therein; provided, that the remedial action is being diligently pursued to

completion in accordance with approved work schedules; or

(ii) A letter of compliance confirming successful completion of a remedial action

approved by the department; or

(iii) An enforceable settlement agreement under § 23-19.14-10.; or

(iv) Correspondence from the department to the tenant acknowledging that the tenant

leased the facility after January 11, 2002, and that the tenant has certified to each of the following

criteria:

(A) Evidence that all disposal at the facility took place before the tenant leased the

facility (through due diligence);

(B) The tenant made "all appropriate inquiry" into the prior uses and ownership of the

facility in accordance with generally accepted good commercial and customary standards and

practices (standard for due diligence);

(C) The tenant will provide all legally required notices for any discovery or release of

hazardous substances at the facility;

(D) The tenant will exercise appropriate care to stop ongoing releases, prevent threatened

future releases, and prevent or limit human, environmental, or natural resource exposure to any

previously released hazardous substance;

(E) The tenant will cooperate with, assist, and provide access to those performing

remedial work at a facility;

(F) The tenant will comply with, and will not impede the effectiveness or integrity of, any

institutional controls at a facility; and

(G) The tenant has no affiliation with any responsible party and was not created through a

reorganization of a business entity that was a responsible party.

(3) Persons who maintain an indicia of ownership solely to protect a secured interest in

land and are not operators;

(4) Persons who are not operators and who act solely as custodial receivers or who can

establish by a preponderance of evidence that they are an innocent landowner and the release or

threat of release were caused solely by an act or omission of a third party, other than an employer

or agent of the defendant, or whose act or omission occurs in connection with a contractual

relationship, existing directly or indirectly, with the defendant if the defendant establishes:

(i) He or she exercised due diligence in the acquisition of the site at the time of purchase

and exercised due care with respect to the hazardous material and/or petroleum concerned, taking

into consideration the characteristics of the hazardous material, in light of the facts and

circumstances; and

(ii) He or she took precautions against foreseeable acts, or omissions of any third party,

and the consequences that could foreseeably result from those acts or omissions;

(5) A unit of state or local government which acquired ownership or control

involuntarily through bankruptcy, tax delinquency, abandonment, or other circumstances in

which the government involuntarily acquires title by virtue of its function as sovereign; provided,

however, that the unit of state or local government did not cause or contribute to the release or

threatened release of a hazardous material at the site; and

(6) (i) A person that owns real property that is contiguous to, or otherwise similarly

situated with respect to, and that is, or may be, contaminated by a release, or threatened release,

of a hazardous material from, real property that is not owned by that person shall not be

considered to be a responsible party for the site solely by reason of the contamination if:

(A) The person did not cause, contribute, or consent to the release or threatened release;

(B) The person is not:

(I) Potentially liable, or affiliated with any other person that is potentially liable, for

response costs at the site through any direct or indirect familial relationship or any contractual,

corporate, or financial relationship (other than a contractual, corporate, or financial relationship

that is created by a contract for the sale of goods or services); or

(II) The result of a reorganization of a business entity that was potentially liable;

(C) The person takes reasonable steps to:

(I) Stop any continuing release;

(II) Prevent any threatened future release; and

(III) Prevent or limit human, environmental, or natural resource exposure to any

hazardous substance released on or from property owned by that person;

(D) The person provides full cooperation, assistance, and access to persons that are

authorized to conduct response actions or natural resource restoration at the site from which there

has been a release or threatened release (including the cooperation and access necessary for the

installation, integrity, operation, and maintenance of any complete or partial response action or

natural resource restoration at the site);

(E) The person:

(I) Is in compliance with any land-use restrictions established or relied on in connection

with the response action at the site; and

(II) Does not impede the effectiveness or integrity of any institutional control employed

in connection with a response action; and

(F) The person provides all legally required notices with respect to the discovery or

release of any hazardous substances at the facility.

(ii) To qualify as a person described in this subdivision, a person must establish by a

preponderance of the evidence that the conditions in subparagraphs (i)(A) through (i)(F) of this

subdivision have been met.

SECTION 2. This act shall take effect upon passage.

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LC005184/SUB A

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