49-285.01. Prospective purchaser agreements; assignment; notice; fees; rules

A. The department may provide, pursuant to section 49-292, to a prospective purchaser of a facility a written release and a covenant not to sue and may also agree to seek an order of the court granting approval of a settlement that includes immunity from contribution claims for any potential liability for existing contamination under this article or CERCLA if all of the following conditions are met:

1. The facility is within a site identified on the registry maintained by the department pursuant to section 49-287.01 or the department has been provided sufficient information to reasonably identify the extent of the contamination at the facility.

2. The person is not currently liable for an existing or threatened release of a hazardous substance at the facility.

3. The proposed redevelopment or reuse of the facility will not contribute to or exacerbate existing known contamination or unreasonably interfere with remedial measures necessary at the facility or cause the contamination to present a substantial health risk to the public.

4. The agreement will provide a substantial public benefit that may include any of the following:

(a) An agreement by the prospective purchaser to provide substantial funding or other resources to perform or facilitate remedial measures at the facility pursuant to this chapter.

(b) An agreement by the prospective purchaser to perform substantial remedial measures at the facility pursuant to this chapter.

(c) Productive reuse of a vacant or abandoned industrial or commercial facility.

(d) Development of a facility by a governmental entity or nonprofit organization to address an important public purpose.

(e) Creation of conservation or recreation areas.

5. The department consults with local planning and zoning authorities with jurisdiction over the facility and considers reasonably anticipated future land uses at the facility and surrounding properties.

B. If the prospective purchaser of a facility is affiliated with any other person who is a party responsible for the release or threatened release of a hazardous substance under this chapter, through any familial relationship or any corporate or contractual relationship other than a contract to protect a security interest, the director may refuse to provide a written release or covenant not to sue or may refuse to seek an order of the court granting immunity from contribution claims under this section.

C. An agreement between the department and a prospective purchaser shall include provisions deemed necessary by the department and may include:

1. A representation by the prospective purchaser that the purchaser did not cause or contribute to the contamination or otherwise cause or contribute to a release or threatened release of a hazardous substance at the property before the purchaser acquired title.

2. If the prospective purchaser does not undertake remedial action, a representation that the purchaser will not exacerbate or contribute to the existing contamination.

3. An agreement that any activity that the prospective purchaser may conduct or direct on the contaminated property will not unreasonably interfere with any ongoing remedial actions that are being performed by a responsible party or the department and that the purchaser will cooperate with those activities.

4. An agreement to undertake those measures that constitute a public benefit as prescribed by subsection A, paragraph 4 of this section.

5. If remedial measures are to be performed under the agreement, an agreement to perform those measures in compliance with the applicable statutes and rules, including sections 49-151 and 49-152, and if pursuant to a consent judgment, under the department's supervision.

6. Unless the contamination was caused by this state, a waiver by the person of any claim or cause of action against this state that arises from contamination at the facility that exists as of the date of acquisition of ownership or operation of the facility.

7. A grant of an easement to the department and its authorized representatives for purposes of ensuring compliance with the agreement or for remedial measures authorized pursuant to this article in connection with contamination at the facility as of the date of acquisition of ownership or operation of the facility.

8. A reservation of rights as to any person who is not a party to the agreement.

9. The legal description of the property.

10. In any case in which the state conducts remedial actions and there are unrecovered response costs at a property for which the prospective purchaser is not liable, the state as a condition of the agreement may impose a lien upon that property for the unrecovered costs. The priority of the lien is as of the date the lien is recorded in the county where the property is located. The lien becomes due on the sale, assignment or transfer of the property by the prospective purchaser unless the new purchaser, assignee or transferor accepts and assumes the lien as a personal obligation with the department's prior written agreement.

D. Subject to satisfactory performance of the obligations under the agreement, the prospective purchaser is not liable to this state under this article for any release of a hazardous substance at the facility that exists on the date of acquisition of ownership or operation of the facility. The person shall bear the burden of proving that any hazardous substance existed on the facility as a result of releases of the hazardous substance before the date of acquisition of ownership or operation of the facility. This release from liability may be voided by the director if the person fails to perform any of the provisions of the prospective purchaser agreement.

E. The purchaser shall provide written notice to the department of any sale, assignment or other transfer of the property at least fifteen business days before the date of the transfer.

F. An agreement pursuant to this section is assignable if the assignee qualifies pursuant to subsections A and B of this section for a prospective purchaser agreement under this section and notice is given to the department as prescribed by subsection E of this section. On assignment, the assignee assumes the obligations and the benefits of the agreement. Unless the assignor has breached the agreement, the assignor retains the benefits of the agreement.

G. The department shall provide notice of a prospective purchaser agreement by publication in a newspaper of general circulation in the county in which the property is located at least fifteen business days before the execution of a prospective purchaser agreement. The notice shall include a general description of the contents of the agreement. Any interested person may comment on the proposed agreement in writing to the director.

H. The department may charge a reasonable fee for the preparation and execution of a prospective purchaser agreement. The director may adopt rules to implement this section.