Section 447.714

Title XXIX OWNERSHIP AND CONVEYANCE OF PROPERTY

Chapter 447

Effective - 28 Aug 1995   

  447.714.  Hazardous substances on property, duties of purchaser — department of natural resources, duties. — 1.  For any eligible project, the purchaser of the abandoned property shall be released from further liability to the extent described in subsection 2 of this section based upon the voluntary remediation work actually performed and consistent with the level of risk to human health and the environment remaining after performance of the voluntary remediation activities to remedy the existence of hazardous substances on the property, the release of which occurred prior to the date of acquisition.

  2.  For any eligible project, the department of natural resources shall:

  (1)  Issue a letter requiring no further action from a purchaser who has performed a Phase I and Phase II environmental site assessments, as defined at 10 C.S.R. 25- 15.010 (2)(A)7 and 8, which demonstrate that no remedial action is necessary to protect the public health and welfare and the environment;

  (2)  Issue a letter requiring no further action from a purchaser who has performed voluntary remediation action, as part of an eligible project, pursuant to the requirements of sections 260.565 to 260.575, the purchaser certifies to the department of natural resources that the goals of the purchaser's voluntary remediation plan have been attained, attainment of the remediation plan goals is verified by the department and, when completed, the voluntary remediation does not treat all hazardous substances present to levels below regulatory action levels due to use of alternative clean-up goals, risk reduction solutions, institutional controls, including, but not limited to, use restrictions contained in the deed or other alternative actions.  The department of natural resources shall not issue a no further action letter unless the voluntary remediation activities significantly restore, in whole or in part, the environment so as to minimize the harmful effects from a release of a hazardous substance to acceptable risk levels;

  (3)  Provide a covenant not to sue to a purchaser who has performed voluntary remediation action, as part of an eligible project, pursuant to the requirements of sections 260.565 to 260.575, the purchaser certifies to the department of natural resources that the remediation goals have been attained, attainment of the remediation goals is verified by the department and, when completed, the voluntary remediation has treated all hazardous substances of concern to levels below then existing regulatory action levels; or

  (4)  To receive a covenant not to sue from the department of natural resources, the corrective action plan must be submitted for public comment and a public hearing must be held by the department after not less than thirty days' notice to determine the effectiveness of the remedy for the intended use of the eligible project.  The public hearing shall be held in a community where the eligible project is located.

  3.  Upon successful completion of a voluntary remediation action, as part of an eligible project, the purchaser shall be immune from liability in a civil action brought by any third party to recover clean-up costs, response costs or other legal or equitable damages, including costs of restitution.  Such immunity shall not apply to the failure to remediate hazardous substances in accordance with the voluntary remediation action site plan, statutes and regulations or the failure to operate the facility in compliance with applicable federal, state and local environmental statutes, regulations and ordinances.

  4.  The department of natural resources shall not release the purchaser for liability arising from, or associated with:

  (1)  Conditions not identified or addressed in the voluntary remediation action work;

  (2)  Contamination or violations caused or contributed to by the purchaser after acquiring the abandoned property; except that, this shall not include contamination existing prior to acquisition of the abandoned property or releases of those prior existing contaminants occurring in the course of performing the voluntary remediation activities; and

  (3)  Unknown hazardous substance contamination or conditions at the time of performance of the eligible project, including the voluntary remediation activities.

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(L. 1995 H.B. 414)