North Dakota Code 23.1-10-15 – Voluntary response actions – Liability protection – Procedures
1. Subject to the provisions of this section, a person that is not otherwise responsible under this chapter or another environmental law for a release or threatened release is not responsible solely because the person undertakes and completes response actions to remove or remedy releases or threatened releases at an identified area of real property in accordance with a voluntary cleanup agreement.
Terms Used In North Dakota Code 23.1-10-15
- Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
- Fiduciary: A trustee, executor, or administrator.
- following: when used by way of reference to a chapter or other part of a statute means the next preceding or next following chapter or other part. See North Dakota Code 1-01-49
- Fraud: Intentional deception resulting in injury to another.
- Person: means an individual, organization, government, political subdivision, or government agency or instrumentality. See North Dakota Code 1-01-49
- Property: includes property, real and personal. See North Dakota Code 1-01-49
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
2. A person requesting liability protection under this section shall submit an application in the form required by the department. The requestor also shall submit a voluntary response action plan that includes an investigation report prepared by an appropriate professional describing the methods and results of an investigation of the releases and threatened releases at the identified area of real property, methods of investigation, and the analytical results and professional’s evaluation of the reported information.
The department may approve the application only if the department determines the nature and extent of the releases and threatened releases at the identified area of real property have been identified and evaluated adequately in the investigation report. The department’s approval also must be based on consideration of the following:
a. If reuse or development of the property is proposed, the voluntary response action plan provides for all response actions required to carry out the proposed reuse or development; b. The response actions and the activities associated with any reuse or development proposed for the property will not aggravate or contribute to releases or threatened releases that are not required to be removed or remedied under the voluntary response action plan, and will not interfere with or substantially increase the cost of response actions to address the remaining releases or threatened releases; and
c. The owner of the property or other relevant person agrees to cooperate with the department or other persons acting at the department’s direction in taking response actions necessary to address remaining releases or threatened releases, and to avoid any action that interferes with the response actions.
3. If the department approves the application, the department and requestor shall enter a voluntary cleanup agreement in which the department agrees to take no action under title 23.1 and chapters 61-28 and 61-28.1 against the requestor and those persons identified in subsection 5 so long as the plan is implemented pursuant to the agreement’s terms and with the exercise of due care. As part of the agreement, the department may require the owner, requestor, or other relevant person agrees to any of the following conditions:
a. To provide access to the property; b. To allow reasonable and necessary activities at the property, including placement of borings, wells, equipment, and structures on the property; and
c. To enter an environmental covenant for the property containing institutional controls under chapter 47-37. Alternatively, institutional controls may be imposed on the property using zoning regulations under section 23.1-10-16.
4. Response actions taken under a voluntary cleanup agreement are not complete until the department certifies completion in writing. The department shall issue a certificate of completion if the parties demonstrate to the department’s satisfaction the response action is complete. If a voluntary response action plan does not require removal or remedy of all regulated substances, the department may condition the certificate of completion on the owner’s, requestor’s, or other relevant person’s continued compliance with conditions in the voluntary cleanup agreement or other conditions deemed necessary by the department.
5. In addition to the person that undertakes and completes a voluntary response action pursuant to a voluntary cleanup agreement, the liability protection provided by this section applies to the following persons so long as the persons comply with any conditions imposed by the department under subsection 4:
a. The owner of the identified property, if the owner is not responsible for any release or threatened release identified in the approved voluntary response action plan; b. A person providing financing to the person that undertakes and completes the response actions or that acquires or develops the identified property; c. A fiduciary that arranges for the undertaking and completion of response actions; and d. A successor or assignee of a person to which the liability protection applies.
6. Notwithstanding subsection 1, when a person that is responsible for a release or threatened release undertakes and completes response actions, the protection from liability provided by this section applies to persons described in subsection 5 if the response actions are undertaken and completed in accordance with the following:
a. The response actions must be undertaken and completed in accordance with a voluntary cleanup agreement.
b. When the department issues a certificate of completion for response actions completed by a responsible party, the department and the responsible party may enter an agreement that resolves the responsible party’s future liability to the department for the release or threatened release addressed by the response actions.
7. The protection from liability provided by this section does not apply to a person that:
a. Aggravates or contributes to a release or threatened release that was not remedied under an approved voluntary response action plan; or
b. Obtains the department’s approval of a voluntary cleanup agreement for purposes of this section by fraud or misrepresentation or by knowingly failing to disclose material information, or that knows the approval was so obtained before taking an action that would have made the person subject to the protection of this section.
8. This section does not affect the authority of the department to exercise any powers or duties with respect to a new or additional release or threatened release of a regulated substance on a property or site regulated under this section, or the right of the department or any other person to seek legal or equitable relief against a person not subject to a liability protection provided under this section.