State brownfields revitalization and economic development program--Liability for costs of a response action or remediation--Limitation

Notwithstanding the provisions of § 34A-15-6 , a lender - owner is not liable for environmental, response, cleanup, or remediation costs at a brownfields site approved by the Department of Agriculture and Natural Resources for participation in the state brownfields revitalization and economic development program unless: (1) The lender - owner, its employees, or agents directly cause an immediate release or directly exacerbate a release of the regulated substances on or from the property or directly violate any environmental statute or regulation; or (2) The lender - owner, its employees, or agents knowingly and willfully compelled the borrower to: (a) Perform an action that caused an immediate release of regulated substances in excess of reportable quantities; or (b) Violate any environmental statute or regulation. Liability pursuant to this section is limited to the cost for a response action or remediation that is directly attributable to the lender - owner's activities set forth in subdivisions (1) and (2) of this section. Liability arises only if the lender - owner's actions were the proximate cause of the release or violation. Ownership or control of the property pursuant to a security interest during or after foreclosure does not by itself result in liability. No lender - owner is liable for any response action or remediation if the response action or remediation arises solely from a release of regulated substances in excess of reportable quantities that occurred before or commences before and continues after foreclosure. However, the lender - owner is responsible for the portion of the response action or remediation that is directly attributable to the lender - owner's aggravation of a release. A release of regulated substances in excess of reportable quantities discovered in the course of conducting environmental due diligence is presumed to be a prior or continuing release on the property. Source: SL 2004, ch 228 , § 1; SL 2021, ch 1 (Ex. Ord. 21-3 ), § 53, eff. Apr. 19, 2021.