Ala. Admin. Code r. 335-15-4-.02

Current through Register Vol. 43, No. 1, October 31, 2024

Section 335-15-4-.02 - Limitation Of Liability Qualifications

(1)Limitation of liability criteria. To qualify for a limitation of liability as provided in the Code of Alabama 1975, §§22-30E-9(a) and 22-30E-10(b), an applicant shall meet all the following criteria:

(a) The applicant shall not be a responsible person, as defined in 335-15-1-.02, at the qualifying property.

(b) Where the applicant is an individual, the individual shall not:

1. Be a relative by blood within the third degree of consanguinity or by marriage; or

2. Be an employee, shareholder, officer, or agent; or otherwise be affiliated with a current owner of the subject property or any responsible person on the subject property.

(c) Where the applicant is a corporation or other legal entity, the corporation must not:

1. Be a current or former subsidiary, division, parent company, or partner of a current owner; or

2. Be the employer or former employer of the current owner; or

3. Be any responsible person on the subject property.

(d) The limitation of liability provided by the Code of Alabama 1975, §§22-30E-9(a)and 22-30E-10 shall be contingent upon the applicant's good faith implementation of the voluntary property assessment and/or voluntary cleanup plan as approved by the Department. Such limitation of liability shall not be applicable to any activities conducted on the qualifying property before the Department's approval of the voluntary property assessment plan, cleanup plan, or concurrence with a certification of compliance, whichever occurs first.

(2)Inability to meet limitation of liability criteria. Applicants who do not meet the criteria in 335-15-4-.02(1), shall qualify only for a limitation of liability upon acceptance by the Department of the certification of compliance for cleanup of the site.

(3)Revocation of limitation of liability. If the Department determines the assessment or cleanup is not being implemented in accordance with the approved plan, it will notify the applicant and give reasonable opportunity to correct the deficiency. Failure to correct noted deficiencies shall result in the revocation of the limitation of liability protection afforded by the Alabama Land Recycling and Economic Redevelopment Act.

(4)Fiduciary limitation of liability. A lender, including one serving as a trustee, personal representative, or in any other fiduciary capacity in connection with a loan, or a lender holding evidence of ownership of a qualifying property primarily to protect a security interest, or as a result of foreclosure or a deed in lieu of foreclosure of a security interest, is entitled to the liability protection established in the Code of Alabama 1975, §22-30E-9 if the lender meets each of the following requirements:

(a) The lender has not caused or contributed to a release of a contaminant at the qualified property;

(b) The lender seeks to sell, transfer, or otherwise divest the qualifying property at the earliest time; and

(c) The lender has not divested the borrower of, or otherwise engaged in, decision-making control of assessment or cleanup activities at the qualifying property or operations at the qualifying property or undertaken management activities beyond those required to protect its financial interest while making a good faith effort to sell the qualifying property;

(5)Extension of Limitation of Liability. The limitation of liability provided by the Code of Alabama 1975, §22-30E-9 and 22-30E-10 shall extend to the heirs, assigns, and designees of the person to whom such limitation of liability is granted; provided, however, that, except as may be provided by the Code of Alabama 1975, §22-30E-9(a), §22-30E-9(f)or §22-30E-9(g), such extension of the limitation of liability shall not operate to absolve from liability any person deemed to be a responsible person on the qualifying property.

(6)Departmental Response to Release. Nothing in 335-15-4 shall limit the authority of the Department to take action in response to any release or threat of release of regulated substances.

(7)Preexisting Contamination or Release Reporting. As provided in the Code of Alabama 1975, §22-30E-4, the reporting of preexisting contamination or a preexisting release detected during the course of due diligence or site assessment activities to the Department, provided that any release reporting obligations shall be coextensive with federal release-reporting obligations.

(8)Preexisting And New Release Liability. As provided in Code of Alabama 1975, §22-30E-8 and §22-30E-10 upon the first to occur of the Department's approval of a voluntary property assessment plan, approval of a voluntary cleanup plan, or concurrence with the certification of compliance, with respect to a qualifying property, a responsible person applicant or an applicant shall be fully discharged and released from any and all liability to the state or to any other person, including any successor in interest to the applicant, with respect to the qualifying property for post-remediation costs incurred in connection with, equitable relief relating to, or damages resultant from, in whole or in part, a preexisting release at the qualifying property.

(9)Regulatory Compliance and Limitation of Liability. If, during the course of the assessment and or remediation process, the site becomes an active industrial facility, the facility will then be responsible for maintaining compliance with all applicable state and federal regulations. The limitation of liability provided in 335-15-4-.02(1), 335-15-4-.02(4), and 335-15-4-.02(8) does not extend to:

(a) Release(s) as a result of new industrial activity occurring during the assessment and, or remediation phase of the cleanup,

(b) Activities not described in the voluntary cleanup assessment plan or the voluntary cleanup work plan(s); or

(c) Release(s) that occur on the qualifying property after Departmental acceptance of the certification of compliance as a result of noncompliance with the applicable response action or land use controls within the environmental covenant by the applicant or successor in interest to the applicant.

Ala. Admin. Code r. 335-15-4-.02

New Rule: Filed April 11, 2002; effective May 16, 2002. Amended: Filed October 21, 2004; effective November 25, 2004.

Amended by Alabama Administrative Monthly Volume XL, Issue No. 07, April 29, 2022, eff. 6/13/2022.

Amended by Alabama Administrative Monthly Volume XLII, Issue No. 05, February 29, 2024, eff. 4/14/2024.

Author: Lawrence A. Norris; Stephen A. Cobb; Sonja B. Favors; Pamela L. Monaghan; Crystal L. Collins; Pamela W. Luckie; Lynn T. Roper

Statutory Authority:Code of Ala. 1975, §§22-30E-4, 22-30E-8, 22-30E-9, 22-30-10.