2023 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.