34A-15-6.1State 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.