It is enacted by the General Assembly as follows:

SECTION 1. Title 23 of the General Laws entitled "Health and Safety" is hereby amended by adding thereto the following chapter:

{ADD 23-19.14-1. Legislative findings. -- ADD} {ADD It is hereby recognized and acknowledged by the general assembly that:

(a) In Rhode Island, there are hundreds of sites that have varying degrees of contamination from hazardous materials;

(b) The contamination is often an obstacle to redevelopment due to the liability relating to the sites;

(c) Clean up standards and objectives must be consistent with a site's current and reasonably expected future use;

(d) Financial institutions are often cautious or unwilling to lend to businesses who wish to expand at or relocate to sites that have or are feared to be contaminated;

(e) Rhode Island's urban corridor contains nearly two hundred (200) sites that have been found by federal or state programs to be contaminated;

(f) The following cities and towns have numerous known sites: Cranston (19), East Providence (24), Johnston (23), North Smithfield (26), Pawtucket (13), Providence (45), Warwick (23), West Warwick (4), Woonsocket (4), and Central Falls (1). There are also many potential sites in these and other municipalities which may have been contaminated by historical industrial activities;

(g) Depositors Economic Protection Corporation (DEPCO) and its agents presently have a security interest in or direct control of over fifty (50) properties that are contaminated or are thought to be contaminated;

(h) Proper redevelopment and reuse of these properties would not only benefit the state's economy and the employment of those who live in the urban corridor, but would also benefit the state's environment; and,

(i) The redevelopment and reuse of these impacted sites will control and remove the existing contamination and will reduce the artificial economic incentive to develop previously undisturbed natural resources. ADD}

{ADD 23-19.14-2. Declaration of policy. -- ADD} {ADD It shall be the policy of this state to assure that:

(a) Activities are taken to control and eliminate contamination at industrial properties that are fair, consistent, and compatible with the current and reasonably foreseeable future use of the property;

(b) Environmental barriers to economic redevelopment and beneficial reuse of contaminated properties are removed;

(c) Opportunities are available for businesses to realistically manage their environmental liabilities; and,

(d) Voluntary and cooperative clean-up actions are encouraged to the greatest extent possible. ADD}

{ADD 23-19.14-3. Definitions. -- ADD} {ADD (a) "40 CFR" means that section or subsection of the code of federal regulations, title 40, protection of environment, chapter 1, environmental protection agency. References to the administrator, appearing therein, shall be interpreted as referring to the director of the department of environmental management.

(b) "Bona fide prospective purchaser" means a purchaser of a site who intends to purchase a contaminated property, who had documented their intent to purchase the property in writing, and who has offered to pay fair market value for the property in the contaminated state. For purposes of this chapter, any former owner, former operator or other person who is otherwise a responsible party or any person who had more than ten percent (10%) equitable or other legal interest in the site or any of the operations related to the contamination cannot be considered as a bona fide prospective purchaser.

(c) "Hazardous materials" mean any material or combination or mixture of materials containing any hazardous substance in an amount and concentration such that when released into the environment, that material can be shown to present a significant potential to cause an acute or chronic adverse effect on human health or the environment. Hazardous material shall also include any material that contains a hazardous waste. Hazardous material does not include petroleum for the purposes of this chapter.

(d) "Hazardous substances" means any substance designated as such pursuant to 40 CFR 300.5, as is or as amended. Hazardous substance shall not include, for the purposes of this chapter, asbestos or radioactive materials.

(e) "Hazardous wastes" mean any material defined as such waste pursuant to chapter 23-19.1 of the Rhode Island general laws, and the regulations promulgated thereunder.

(f) "Operator" means the person who is responsible for the operation of the activities at the site.

(g) "Owner" means the person who owns the site or part of the site. In the case of a receiver, the Superior Court supervising such receiver shall have jurisdiction to determine the nature and extent of the receiver's obligations to comply with the provisions of this chapter. Any such obligation shall be binding on such a receiver solely in his or her fiduciary capacity.

(h) "Petroleum" means any virgin petroleum product including the following products:

(1) Unused distillate and residual oil including but not limited to gasoline, aviation fuels, kerosene, diesel, and heating oils.

(2) Unused crankcase oil, lubricants, hydraulic oils, penetrant oils, tramp oils, quench oils, and other industrial oils.

(i) "Person" means an individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, the federal government or any agency or subdivision thereof, a state, municipality, commission, political subdivision of a state, or any interstate body.

(j) "Release" shall be defined by 40 CFR 300.5 for purposes of this chapter, but shall also exclude any release from a process, activity or source area allowed under a permit, license or approval issued after January 1, 1987 by any regulatory process or legal authority or any release of hazardous materials solely derived from common household materials and occurring at the household.

For purposes of this chapter, release also includes an actual or potential threat of release.

(k) "Remedial or response action" means those actions taken to rectify the effects of a release of hazardous material, so that it does not cause a substantial danger to present or future public health or welfare, or the environment.

(l) "Remediation" means the act of implementing, operating and maintaining, a remedy, remedial action or response action.

(m) "Responsible party" shall have the meaning attributed thereto by the provisions of section 23-19.14-6.

(n) "Site" means all contiguous land, structures and other appurtenances and improvements on the land contaminated by the use, storage, release or disposal of hazardous material including the areal extent of contamination and all suitable areas in very close proximity to the contamination where it will be necessary to implement or conduct any required investigation or remedial action. ADD}

{ADD 23-19.14-4. Objectives of environmental clean-up. -- ADD} {ADD The department of environmental management will develop and publish numerical objectives for the most commonly found hazardous substances. These objectives will be applicable for the clean-up of contaminated properties to levels which are protective of human health and the environment based on current and reasonably foreseeable future use of a property and the surrounding natural resources. These numerical objectives shall be published no later than one (1) year after the effective date of this chapter. ADD}

{ADD 23-19.14-5. Environmental equity and public participation. -- ADD} {ADD The department of environmental management shall consider the effects that clean-ups would have on the populations surrounding each site and shall consider the issues of environmental equity for low income and racial minority populations. The department of environmental management will develop and implement a process to ensure community involvement throughout the investigation and remediation of contaminated sites. That process shall include, but not be limited to, the following components:

(a) Notification to abutting residents when a work plan for a site investigation is proposed;

(b) Adequate availability of all public records concerning the investigation and clean-up of the site, including, where necessary, the establishment of informational repositories in the impacted community; and

(c) Notification to abutting residents, and other interested parties, when the investigation of the site is deemed complete by the department of environmental management.

This community involvement process will be coordinated with the public notice and comment opportunity provided in section 23-19.14-11 when a final settlement agreement is proposed. ADD}

{ADD 23-19.14-6. Liability for releases of hazardous materials. -- ADD} {ADD Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in section 23-19.14-7, the state of Rhode Island reaffirms the applicable provisions of chapter 23-19.1, section 42-17.1-2, chapter 46-12 and chapter 46-13.1 and defines the following parties as responsible parties which are strictly, jointly and severally liable for the actual or threatened release of any hazardous material at a site:

(a) the owner or operator of the site;

(b) any person who at the time of disposal of any hazardous material owned or operated the site;

(c) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment of hazardous materials owned or possessed by such person, at any site owned or operated by another party or entity and containing such hazardous materials; and

(d) any person who accepts or accepted any hazardous materials for transport to disposal or treatment facilities or sites selected by such person, from which there is a release or a threatened release of a hazardous material which causes the incurrence of response costs

Responsible parties shall be liable for:

(i) all removal or remedial actions necessary to rectify the effects of a release of hazardous material so that it does not cause a substantial danger to present or future public health or welfare or the environment;

(ii) all costs of removal or remedial action incurred by the state including direct costs, indirect costs and the costs of overseeing response actions conducted by private parties;

(iii) any other necessary costs of removal or remedial action incurred by any other person; and

(iv) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release. ADD}

{ADD 23-19.14-7. Exemptions to liability. -- ADD} {ADD The following parties are not responsible parties and shall not be held liable for costs or damages associated with a release of hazardous material:

(a) 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 therefrom were caused solely by an act of God or an act of war;

(b) Persons who are defined as bona fide prospective purchasers and who enter an enforceable settlement agreement under section 23-19.14-10;

(c) Persons who maintain an indicia of ownership solely to protect a secured interest in land and are not operators; and

(d) 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 exercised due diligence in the acquisition of the site at the time of purchase and exercised due care with respect to the hazardous material concerned, taking into consideration the characteristics of such hazardous material, in light of the facts and circumstances, and,

(ii) he took precautions against foreseeable acts, or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions. ADD}

{ADD 23-19.14-8. Voluntary investigations and remedial actions. -- ADD} {ADD (a) A person who is not otherwise defined as a responsible party under section 23-19.14-6 will not become a responsible party if that person voluntarily undertakes and completes response actions under a remedial action plan approved by the department of environmental management. Nothing in this section shall be construed to relieve a person from liability for failure to complete such a response action or failure to exercise due care in performing such response actions.

(b) A person who is not otherwise defined as a responsible party under section 23-19.14-6 will not become associated with a release or threat of release as a result of their performing investigations of the presence, nature and extent of hazardous materials at any site provided, however, that such investigations do not aggravate or contribute to a release at the site, and that such persons provide the results of those investigations to the department of environmental management. ADD}

{ADD 23-19.14-9. Priority sites for economic development. -- ADD} {ADD The department of economic development may identify properties of critical economic concern, as defined by section 42-117-3(3). These properties of critical economic concern shall be entitled to the benefits of chapter 117 of title 42 including, but not limited to, expedited investigation of these properties, expedited design of appropriate remedial actions for these properties and, to the greatest extent possible, expedited implementation of remedial actions at these properties. The Rhode Island Port Authority and Economic Development Corporation, or its successor (collectively, the "Port Authority"), is hereby authorized and empowered, with the approval of the governor, to use up to one half (1/2) of the amounts contained from time to time in the tire site remediationn account created pursuant to chapter 63 of title 23 as a revolving fund for the purposes of making loans for the investigation of and/or design of remedial actions for, projects of critical economic concern and related purpose as determined by the Port Authority to recipients of certificates of critical economic concern and who are designated by the Director of the Department of Economic Development and consistent with the purposes of this act. Loan repayments shall be repaid to the tire site remediation account on a schedule established by agreement between the loan recipient and the Director of the Department of Economic Development. ADD}

{ADD 23-19.14-10. Settlement authorities. -- ADD} {ADD The state may enter into an agreement with any person to perform any response action if the state determines that such action will be done properly by such person. Whenever practicable and in the public interest as determined by the state, the state shall act to facilitate agreements under this section that are in the public interest and consistent with applicable laws and regulations in order to expedite effective remedial action and minimize litigation. The department of environmental management must be a party to any settlement agreement entered under the authority of the chapter.

Whenever the state has entered into an agreement under this section, the liability to the state under this chapter of each party to the agreement including any future liability to the state, arising from the release or threatened release that is the subject of the agreement shall be limited as provided in the agreement pursuant to a covenant not to sue. The final covenant not to sue may, at the discretion of the state, be transferred to successors or assigns who are not otherwise found to be a responsible party under section 23-19.14-6. The covenant not to sue may provide that future liability to the state of a settling party under the agreement may be limited to the same proportion as that established in the original settlement agreement. ADD}

{ADD 23-19.14-11. Filing and public comment on settlement agreements. -- ADD} {ADD (a) The state shall provide an opportunity to persons who are not named as parties to the action to comment on the proposed agreement before its entry as a final judgement. Persons not named as parties to the action will have fourteen (14) days after the date of the notice of the proposed agreement to submit written comments. The state shall consider any written comments, views or allegations relating to the proposed agreement. The state may withdraw or withhold its consent to the proposed settlement if the comments, views, or allegations concerning the judgement disclose facts or considerations which indicate that the proposed judgement is inappropriate, improper or inadequate.

(b) The proposed agreement shall be considered final when all substantive public comments have been addressed.

(c) No later than thirty (30) days after a settlement agreement is deemed final, the agreement shall be filed with the administrative adjudication division of the department of environmental management and shall be deemed a final order of the director. ADD}

{ADD 23-19.14-12. Protection from contribution actions. -- ADD} {ADD A party who has resolved its liability to the state under this chapter shall not be liable for claims for contribution regarding matters addressed in the settlement. Such settlement shall not discharge any of the other potentially liable persons unless its terms so provide but it reduces the potential liability of the others by the amount of the settlement. ADD}

{ADD 23-19.14-13. Authority to recover costs. -- ADD} {ADD The head of any department or state agency with authority to undertake a response action under this chapter may consider, compromise, and settle a claim for costs incurred by their department or agency.

Cost recovery actions may include, upon recommendation by the Rhode Island Port Authority, surrender of title to the site to the state to facilitate economic redevelopment and future beneficial re-use of the property.

If a responsible party fails to pay a claim that has been settled under this subsection, the department or agency head may request the attorney general to bring a civil action or may sue in his or her own name to recover the amount of such claim, plus costs, attorneys' fees, and interest from the date of the settlement. In the action, the terms of the settlement shall not be subject to review. ADD}

{ADD 23-19.14-14. Windfall liens. -- ADD} {ADD At any site where there are unrecovered response cost and/or additional remedial actions required, the state may place a lien upon the site for such unrecovered costs or outstanding actions. The maximum amount of the windfall lien may not exceed the total of the unrecovered response costs incurred by the state plus interest calculated at the prime rate based on three (3) chartered financial institutions in Rhode Island at the time of the completion of construction of a remedial action. The liens:

(a) shall not exceed the increase in fair market value for the site attributable to the response action or redevelopment activities, at the time of subsequent sale or other disposition of the site; and,

(b) shall continue until the satisfaction of the lien by recovery of all response costs incurred at the site and completion of construction of all outstanding remedial actions.

The lien shall continue until the liability for the costs (or a judgement against the person arising out of such liability) is satisfied, or becomes unenforceable through operation of the statute of limitations.

The state may, at its discretion, in lieu of the lien provided by this section negotiate a stipulated judgement or other judicially enforceable consent decree and judgement for costs and damages for which any responsible party is liable to the state under this chapter. ADD}

{ADD 23-19.14-15. Notice and validity of liens. -- ADD} {ADD Any lien imposed under the authority of this chapter shall be subject to the rights of any purchaser, holder of a security interest, or judgement lien creditor whose interest is perfected under applicable state law before notice of the lien has been filed in the appropriate office within the state or county or other governmental subdivision, as designated by any provision of law.

Any such purchaser, holder of a security interest, or judgement lien creditor shall be afforded the same protection against the lien imposed by this subsection as is afforded under state law against a judgement lien which arises out of a secured obligation, and which arises as of the time of the filing of the notice of the lien imposed by this chapter. ADD}

{ADD 23-19.14-16. Penalties for noncompliance. -- ADD} {ADD Any responsible party who fails, without sufficient cause, to properly provide for removal or remedial action pursuant to a final order of the director of the department of environmental management may be liable to the state of Rhode Island for punitive damages in an amount at least equal to, and not more than, three (3) times the amount of any costs incurred by the state as a result of such failure to take proper action, in addition to liability for any response costs incurred by the state as a result of such failure to take action. The state is authorized to commence a civil action against any such person to recover the punitive damages, which shall be in addition to any costs recovered from such person.

Any monies received by the state pursuant to this chapter shall be deposited in the environmental response fund established pursuant to chapter 19.1 of title 23. ADD}

{ADD 23-19.14-17. Subrogation of authorities. -- ADD} {ADD Nothing in this chapter shall be construed to prevent the state from subrogating its authority to pursue cost recovery or assess punitive damages as part of a settlement action. ADD}

{ADD 23-19.14-18. Powers and duties of the director. -- ADD} {ADD The director of the department of environmental management is authorized to exercise all powers, direct and incidental, necessary to carry out the purposes of this chapter. The director of the department of environmental management may adopt such plans, rules, regulations, fees, procedures, and standards as may be necessary to meet the declared policies and requirements of this chapter and receives all desired federal grants, aid, and other benefits.

Any rules or policies promulgated pursuant to this chapter shall, to the maximum extent practical, be compatible with the rules, regulations, procedures, and standards promulgated by the U.S. environmental protection agency pursuant to the comprehensive environmental response, compensation and liability act of 1980, 42 U.S.C. section 9601 et seq. ("CERCLA" or Superfund) or other applicable federal or state statutes. ADD}

{ADD 23-19.14-19. Liberal construction -- Severability. -- ADD} {ADD The provisions of this chapter shall be construed liberally to effectuate its purposes. If any provision of this chapter or of any rule, regulation, or determination made thereunder, or the application thereof to any person, agency, or circumstances, is held invalid by a court of competent jurisdiction, the remainder of the chapter, rule, regulation, or determination and the application of the provisions to other persons, agencies or circumstances shall not be affected thereby. The invalidity of any section or sections or parts of any section or sections of this chapter shall not affect the validity of the remainder of the chapter. ADD}

SECTION 2. Section 23-63-4.2 of the General Laws in Chapter 23-63 entitled "Vehicle Tire Storage and Recycling" is hereby amended to read as follows:

{ADD 23-63-4.2. Allocation of funds. -- ADD} The funds deposited into the tire site remediation account shall be used for the following activities:

(a) No less than ninety percent (90%) of all funds shall be used for the cleanup, recycling and disposal of tires in existing tire piles {DEL ; DEL} {ADD and for the overall investigation of, and design of remedial actions for properties of economic concern pursuant to chapter 19.14 of title 23; ADD}

(b) No more than ten percent (10%) of all funds shall be used to assist cities and towns with the collection and proper disposal of waste tires in their respective communities;

(c) The Port Authority shall borrow money and issue its bonds and notes for the purposes set forth in this section in an amount not to exceed eight million dollars ($8,000,000) and pursuant to the authority and procedures set forth in chapter 64 of title 42, which shall be secured by pledging or assigning, in whole or in part, the monies held or to be deposited in the tire site remediation account; and

(d) All amounts in the tire site remediation account, fees, and any other revenues, assessments, fines, forfeitures, and other funds collected or received pursuant to this chapter for deposit into the tire site remediation account shall be deemed to be trust funds to be held and applied solely as provided in this chapter {DEL . DEL} {ADD and chapter 19.14 of title 23. ADD}

SECTION 3. This act shall take effect upon passage.