NY Env Conserv L § 27-1421 (2021)
2021 New York Laws ENV - Environmental Conservation Article 27 - Collection, Treatment and Disposal of Refuse and Other Solid Waste Title 14 - Brownfield Cleanup Program 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.