§ 130A-310.33. Liability protection. - North Carolina Statutes

§ 130A‑310.33. Liability protection.

(a)        A prospectivedeveloper who enters into a brownfields agreement with the Department and whois complying with the brownfields agreement shall not be held liable forremediation of areas of contaminants identified in the brownfields agreementexcept as specified in the brownfields agreement, so long as the activitiesconducted on the brownfields property by or under the control or direction ofthe prospective developer do not increase the risk of harm to public health orthe environment and the prospective developer is not required to undertakeadditional remediation to unrestricted use standards pursuant to subsection (c)of this section. The liability protection provided under this Part applies toall of the following persons to the same extent as to a prospective developer,so long as these persons are not otherwise potentially responsible parties orparents, subsidiaries, or affiliates of potentially responsible parties and theperson is not required to undertake additional remediation to unrestricted usestandards pursuant to subsection (c) of this section:

(1)        Any person under thedirection or control of the prospective developer who directs or contracts forremediation or redevelopment of the brownfields property.

(2)        Any future owner ofthe brownfields property.

(3)        A person whodevelops or occupies the brownfields property.

(4)        A successor orassign of any person to whom the liability protection provided under this Partapplies.

(5)        Any lender orfiduciary that provides financing for remediation or redevelopment of thebrownfields property.

(b)        A person whoconducts an environmental assessment or transaction screen on a brownfieldsproperty and who is not otherwise a potentially responsible party is not apotentially responsible party as a result of conducting the environmentalassessment or transaction screen unless that person increases the risk of harmto public health or the environment by failing to exercise due diligence andreasonable care in performing the environmental assessment or transactionscreen.

(c)        If a land‑userestriction set out in the Notice of Brownfields Property required under G.S.130A‑310.35 is violated, the owner of the brownfields property at thetime the land‑use restriction is violated, the owner's successors andassigns, and the owner's agents who direct or contract for alteration of thebrownfields property in violation of a land‑use restriction shall beliable for remediation to unrestricted use standards. A prospective developerwho completes the remediation or redevelopment required under a brownfieldsagreement or other person who receives liability protection under this Partshall not be required to undertake additional remediation at the brownfieldsproperty unless any of the following apply:

(1)        The prospectivedeveloper knowingly or recklessly provides false information that forms a basisfor the brownfields agreement or that is offered to demonstrate compliance withthe brownfields agreement or fails to disclose relevant information aboutcontamination at the brownfields property.

(2)        New informationindicates the existence of previously unreported contaminants or an area ofpreviously unreported contamination on or associated with the brownfieldsproperty that has not been remediated to unrestricted use standards, unless thebrownfields agreement is amended to include any previously unreportedcontaminants and any additional areas of contamination. If the brownfieldsagreement sets maximum concentrations for contaminants, and new informationindicates the existence of previously unreported areas of these contaminants,further remediation shall be required only if the areas of previouslyunreported contaminants raise the risk of the contamination to public health orthe environment to a level less protective of public health and the environmentthan that required by the brownfields agreement.

(3)        The level of risk topublic health or the environment from contaminants is unacceptable at or in thevicinity of the brownfields property due to changes in exposure conditions,including (i) a change in land use that increases the probability of exposureto contaminants or in the vicinity of the brownfields property or (ii) thefailure of remediation to mitigate risks to the extent required to make thebrownfields property fully protective of public health and the environment asplanned in the brownfields agreement.

(4)        The Departmentobtains new information about a contaminant associated with the brownfieldsproperty or exposures at or around the brownfields property that raises therisk to public health or the environment associated with the brownfieldsproperty beyond an acceptable range and in a manner or to a degree notanticipated in the brownfields agreement. Any person whose use, including anychange in use, of the brownfields property causes an unacceptable risk topublic health or the environment may be required by the Department to undertakeadditional remediation measures under the provisions of this Part.

(5)        A prospectivedeveloper fails to file a timely and proper Notice of Brownfields Developmentunder this Part. (1997‑357,s. 2; 2001‑384, s. 11.)