Code of Massachusetts Regulations › 940 CMR - OFFICE OF THE ATTORNEY GENERAL › Title 940 CMR 23.00 - Brownfields covenant not to sue agreements › Section 23.08 - Liability Relief Obtained

Current through Register 1525, July 5, 2024
(1) A Person who
			 has entered into a Brownfields Covenant Not to Sue Agreement with the
			 Commonwealth shall not be liable to the Commonwealth for claims for
			 contribution, Response Action costs or for property damage pursuant to M.G.L.
			 c. 21E or for property damage under the common law, with respect to matters and
			 properties expressly addressed by said Agreement, provided, however, that the
			 Agreement shall not affect any liability established by contract. A Brownfields
			 Covenant Not to Sue Agreement may also cover claims for natural resource
			 damages, if an applicant so requests and the Secretary of Energy and
			 Environmental Affairs agrees to become a signatory to the Agreement. A
			 Brownfields Covenant Not to Sue Agreement shall not relieve any Person of
			 liability with respect to any matter or property not expressly addressed by the
			 Agreement. Nothing in this paragraph is intended to limit the Commonwealth's
			 ability to provide additional liability relief through a Brownfields Covenant
			 Not to Sue Agreement to the extent otherwise authorized by law.
(2) A Person who has provided notice in
			 accordance with
			 940 CMR
			 23.04(2)  and entered into a
			 Brownfields Covenant Not to Sue Agreement with the Commonwealth shall not be
			 liable to Affected Third Parties for claims for contribution, Response Action
			 costs or for property damage pursuant to M.G.L. c. 21E or for property damage
			 under the common law, with respect to matters and properties expressly
			 addressed by the Agreement, provided, however, that the Agreement shall not
			 affect any liability established by contract, and that an Applicant who is not
			 an Eligible Person shall be protected from claims by only those Affected Third
			 Parties who received notice in hand or by registered mail, return receipt. A
			 Brownfields Covenant Not to Sue Agreement shall not relieve any Person of
			 liability with respect to any matter or property not expressly addressed by the
			 Agreement.
(3) The liability
			 protection offered by each Brownfields Covenant Not to Sue Agreement shall be
			 subject to the following conditions:
(a) the
			 Applicant's compliance with the Release notification provisions established by
			 M.G.L. c. 21E and the MCP ( 310 CMR 40.0000 );
(b) the Applicant's providing reasonable
			 access to the portion of the Site owned or operated by the Applicant to
			 employees, agents, and contractors of the Department of Environmental
			 Protection for all purposes authorized by M.G.L. c. 21E, and to other persons
			 intending to conduct Response Actions pursuant to that chapter and the MCP (
			 310 CMR 40.0000 );
(c) the
			 Applicant's responding in a reasonably timely manner to any request made by the
			 Department of Environmental Protection or the Attorney General to produce
			 information as required pursuant to M.G.L. c. 21E;
(d) the Applicant's taking reasonable steps:
1. to prevent the Exposure of people to Oil
			 or Hazardous Materials, such as by fencing or otherwise preventing access to
			 the Site or portion of the Site under the Applicant's control; and
2. to contain any further Release or Threat
			 of Release of Oil or Hazardous Material from a structure or container under the
			 Applicant's control, upon obtaining knowledge of a Release or Threat of Release
			 of Oil or Hazardous Material;
(e) the Response Actions that the Applicant
			 conducts at the Site being done in accordance with the MCP ( 310 CMR 40.0000
			 );
(f) a Permanent Solution, Remedy
			 Operation Status, or Temporary Solution, as applicable, being achieved and
			 maintained at the Site or portion of the Site that is subject of the Agreement
			 within the deadlines set forth in the MCP ( 310 CMR 40.0000 ), or within such
			 other deadlines as are specified in the Agreement;
(g) the Response Actions taken at the Site or
			 portion of the Site that is subject to the Agreement meeting the appropriate
			 Standard of Care; and
(h) such
			 other terms as agreed to by the Applicant in the Agreement.