97-S 0428
Approved Jul. 1, 1997


It is enacted by the General Assembly as follows

SECTION 1. Sections 23-19.14-3, 23-19.14-4, 23-19.14-6, 23-19.14-7 and 23-19.14-8, of the General Laws in Chapter 23-19.14 entitled "Industrial Property Remediation and Reuse Act" are hereby amended to read as follows:

23-19.14-3. Definitions. -- (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" means 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" means any material defined as such waste pursuant to chapter 23-19.1 of this title, and the regulations promulgated thereunder.

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

(g)(1) "Owner" means the person who owns the site or part of the site.

(2) 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) "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.

(i) "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.

(j)(1) "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.

(2) 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 {ADD and/or petroleum ADD} , 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 {ADD or section 23-19.14-6.1 ADD} .

(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.

23-19.14-4. Objectives of environmental clean-up. -- The department of environmental management will develop{ADD , ADD} {DEL and DEL} {ADD and maintain ADD} 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. {DEL These numerical objectives shall be published no later than one year after July 3, 1995. DEL}

23-19.14-6. Liability for releases of hazardous materials. -- {DEL (a) DEL} Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in section 23-19.14-7, the state 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:

(1) the owner or operator of the site;

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

(3) 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

(4) 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.

(b) Responsible parties {ADDas defined in this section ADD} shall be liable for:

(1) 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;

(2) 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;

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

(4) 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.

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 {ADD and/or petroleum ADD} :

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

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

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

(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 {DEL or DEL} {ADD of ADD} purchase and exercised due care with respect to the hazardous material {ADD and/or petroleum ADD} concerned, taking into consideration the characteristics of such hazardous material, in light of the facts and circumstances, and,

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

23-19.14-8. Voluntary investigations and remedial actions. -- (a) A person who is not otherwise defined as a responsible party under section 23-19.14-6 {ADD and/or section 23-19.14-6.1 ADD} 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 {ADD and/or section 23-19.14-6.1 ADD} 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 {ADD and/or petroleum ADD} 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.

SECTION 2. Chapter 23-19.14 of the General Laws entitled "Industrial Property Remediation and Reuse Act" is hereby amended by adding thereto the following section:

23-19.14-6.1. Liability for release of petroleum. -- {ADD Responsible parties for releases of petroleum are hereby defined as all parties who are otherwise liable for an actual or threatened release of petroleum under any other applicable statute, rule, or common law. This section shall neither be construed as establishing new liabilities or obligations for parties responsible for releases of petroleum that do not otherwise exist under statute, rule, or common law, nor as diminishing such liabilities or obligations of said responsible parties for releases of petroleum shall be the same as those provided for under such other application provisions or rules of law. ADD}

SECTION 3. This act shall take effect upon passage.

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