NY Env Conserv L § 56-0509 (2021)
2021 New York Laws ENV - Environmental Conservation Article 56 - Implementation of the Clean Water/clean Air Bond Act of 1996 Title 5 - Environmental Restoration Projects 56-0509 - Liability Limitation.

§ 56-0509. Liability limitation.   1.  (a)  Notwithstanding  any  other  provision  of  law and except as provided in subdivision two of this section  and  in  paragraph  (h)  of subdivision  two  of  section 56-0503 of this title, the following shall not be liable to the state upon any statutory or  common  law  cause  of action,  or to any person upon any statutory cause of action arising out of the presence of any contamination in  or  on  property  at  any  time before  the  effective  date of a contract entered into pursuant to this title or written agreement pursuant  to  subdivision  three  of  section 56-0503 of this title:  (i)  a  municipality  receiving  state  assistance under this title to undertake, or under written agreement pursuant to subdivision  three  of section   56-0503   of   this  title  for  the  state  to  undertake  an environmental restoration project  and  complying  with  the  terms  and conditions  of the contract or written agreement pursuant to subdivision three of section 56-0503 of this title providing such assistance; and  (ii) a  successor  in  title  to  the  real  property  subject  to  an environmental  restoration project; any lessee of such property; and any person  that  provides  financing  to  such  party   relative   to   the remediation,  restoration,  or  redevelopment of such property; provided that such successor in  title,  lessee,  or  lender  did  not  generate, arrange  for,  transport,  or dispose, and did not cause the generation, arrangement  for,  transportation,  or  disposal  of  any  contamination located at such property, and did not own such property.  (b)  Notwithstanding  any  other  provision  of this title, any person seeking the benefit of this subdivision shall bear the burden of proving that a cause of action, or any part thereof, is attributable  solely  to contamination  present in or on such parcel before the effective date of such contract.   2. Subdivisions one and three of  this  section  shall  not  apply  to relieve  any  municipality,  successor  in title, lessee, or lender from liability arising from:  (a) failing to implement such project to the department's satisfaction or failing to comply with the terms and conditions of the contract;  (b) fraudulently demonstrating that the cleanup levels  identified  in or to be identified in accordance with such project were reached;  (c)  causing  the release or threat of release at the property subject to such project of any contamination after the effective  date  of  such contract; or  (d)  changing  such property's use from the intended use as identified in the contract pursuant to section 56-0503  of  this  title  to  a  use requiring  a lower level of residual contamination unless the additional remedial activities are undertaken which shall meet  the  same  standard for  protection  of  public  health  and the environment that applies to remedial actions undertaken pursuant to 27-1313 of this chapter so  that such  use can be implemented with sufficient protection of public health and the environment.   3. The state shall  indemnify  and  save  harmless  any  municipality, successor  in  title,  lessee,  or lender identified in paragraph (a) of subdivision one of this  section  in  the  amount  of  any  judgment  or settlement,  obtained  against  such  municipality,  successor in title, lessee, or lender in any court  for  any  common  law  cause  of  action arising  out  of  the presence of any contamination in or on property at anytime before the effective date of a contract entered into pursuant to this title. Such municipality, successor in  title,  lessee,  or  lender shall  be entitled to representation by the attorney general, unless the attorney general  determines,  or  a  court  of  competent  jurisdiction determines,  that  such  representation  would  constitute a conflict of  interest, in which case  the  attorney  general  shall  certify  to  the comptroller  that  such  party  is  entitled  to  private counsel of its choice, and reasonable attorneys' fees and expenses shall be  reimbursed by  the  state. Any settlement of such an action shall be subject to the approval of the attorney  general  as  to  form  and  amount,  and  this subdivision  shall  not apply to any settlement of any such action which has not received such approval.   4. A municipality receiving state  assistance  and  any  successor  in title  shall  implement  a  department-approved  environmental  sampling program and, in the event that  conditions  on  such  property  are  not sufficiently  protective  of  human  health  for  its current use due to environmental conditions related to the property subject to such project that were unknown to the department as of the  effective  date  of  such contract  or  due  to information received in whole or in part after the department's approval of such project's  final  engineering  report  and certification,  take  such  emergency  measures  that  are  necessary to maintain sufficient protection  of  human  health  for  such  property's current  use  until  such  conditions  are addressed; and the department shall take such measures as it may determine  are  necessary  to  return such  property  to  a  condition sufficiently protective of human health using monies from the environmental restoration project account  of  the hazardous  waste  remedial fund established under section ninety-seven-b of the state finance law.   5. In addition to any other powers the department may have, including, but not limited to, the powers set forth  in  section  56-0515  of  this title,  the  department shall have the authority to periodically inspect property to ensure that the use of the property complies with the  terms and  conditions of the contract and any engineering and/or institutional controls placed on the property.