(a) The Legislature declares that, in order to achieve the economic redevelopment and site rehabilitation of contaminated properties in accordance with this chapter, it is imperative to encourage financing of real property transactions involving qualifying property. Accordingly, a lender, including one serving as a trustee, personal representative, or in any other fiduciary capacity in connection with a loan, and a lender holding evidence of ownership of a qualifying property primarily to protect a security interest, or as a result of foreclosure or a deed in lieu of foreclosure of a security interest, is entitled to the liability protection established in subsection (a) of Section 22-30E-9 if the lender meets each of the following requirements:
(1) The lender has not caused or contributed to a release of a contaminant at the qualified property.
(2) The lender seeks to sell, transfer, or otherwise divest the qualifying property at the earliest commercially practicable time.
(3) The lender has not divested the borrower of, or otherwise engaged in, decision-making control of assessment or cleanup activities at the qualifying property or operations at the qualifying property or undertaken management activities beyond those required to protect its financial interest while making a good faith effort to sell the qualifying property.
(b) The limitation of liability provided by subsection (a) of Section 22-30E-9 shall be contingent upon the applicant's good faith implementation of the voluntary property assessment plan or voluntary cleanup plan as approved by the department. Such limitation of liability shall not be applicable to any activities conducted on the qualifying property before the department's approval of the voluntary property assessment plan, cleanup plan, or concurrence with a certification of compliance, whichever first occurs.
(c) The limitation of liability provided by this chapter shall not affect any right of indemnification which any person has or may acquire by contract against any other person; shall not apply to persons who intentionally, wantonly, or willfully violate federal or state regulations in the cleanup process, including any civil or criminal penalties applicable thereto; and shall not apply to any release occurring after the date of the certification of compliance, unless the release is addressed in the department's concurrence with the certification of compliance.
(d) The limitation of liability provided by this chapter shall extend to the heirs, assigns, and designees of the person to whom such limitation of liability is granted; provided, however, that, except as may be provided by subsection (a) or subsection (f) of Section 22-30E-9, such extension of the limitation of liability shall not operate to absolve from liability any party deemed to be a responsible person on the qualifying property. A transfer of the title to the qualifying property or any portion thereof from the applicant back to the owner from which the qualifying property was purchased, any other party deemed to be a responsible person on the qualifying property, or any person disqualified from obtaining a limitation of liability under Section 22-30E-8 shall not be eligible for the extension of the limitation of liability provided in this subsection.
(e) Nothing in this chapter shall limit the authority of the department to take action in response to any release or threat of release of regulated substances.
Last modified: May 3, 2021