Liability Relief Obtained

10/17/08 (1) A Person who has entered into a Brownfields Covenant Not to Sue Agreement with the Commonwealth shall not be liable to the Commonwealth for claims for contribution, Response Action costs or for property damage pursuant to M. G.L. c. 2 lE or for property damage under the common law, with respect to matters and properties expressly addressed by said Agreement, provided, however, that the Agreement shall not affect any liability established by contract. A Brownfields Covenant Not to Sue Agreement may also cover claims for natural resource damages, if an applicant so requests and the Secretary of Energy and Environmental Affairs agrees to become a signatory to the Agreement. A Brownfields Covenant Not to Sue Agreement shall not relieve any Person of liability with respect to any matter or property not expressly addressed by the Agreement. Nothing in 940 CMR 23.08(1) is intended to limit the Commonwealth's ability to provide additional liability relief through a Brovmfields Covenant Not to Sue Agreement to the extent otherwise authorized by law. (2) A Person who has provided notice in accordance with 940 CMR 23.04(2) and entered into a Brownfields Covenant Not to Sue Agreement with the Commonwealth shall not be liable to Affected Third Parties for claims for contribution, Response Action costs or for property damage pursuant to M. G .L. c. 21 E or for property damage under the common law, with respect to matters and properties expressly addressed by the Agreement, provided, however, that the Agreement shall not affect any liability established by contract, and that an Applicant who is not an Eligible Person shall be protected from claims by only those Affected Third Parties who received notice in hand or by registered mail, return receipt. A Brownfields Covenant Not to Sue Agreement shall not relieve any Person of liability with respect to any matter or property not expressly addressed by the Agreement. (3) The liability protection offered by each Brownfields Covenant Not to Sue Agreement shall be subject to the following conditions: (a) the Applicant's compliance with the Release notification provisions established by M.G.L. c. 21E and the Massachusetts Contingency Plan (MCP) (310 CMR 40.0000); (b) the Applicant's providing reasonable access to the portion of the Site owned or operated by the Applicant to employees, agents, and contractors of the Department of Environmental Protection for all purposes authorized by M.G.L. c. 21E, and to other persons intending to conduct Response Actions pursuant to that chapter and the MCP (310 CMR 40.0000); (c) the Applicant's responding in·a reasonably timely manner to any request made by the Department of Environmental Protection or the Attorney General to produce information as required pursuant to M.G.L. c. 21E; (d) the Applicant's taking reasonable steps: 1. to prevent the Exposure of people to Oil or Hazardous Materials, such as by fencing or otherwise preventing access to the Site or portion of the Site under the Applicant's control; and 2. to contain any further Release or Threat of Release of Oil or Hazardous Material from a structure or container under the Applicant's control, upon obtaining knowledge of a Release or Threat of Release of Oil or Hazardous Material; (e) the Response Actions that the Applicant conducts at the Site being done in accordance with the MCP (310 CMR 40.0000); (f) a Permanent Solution, Remedy Operation Status, or Temporary Solution, as applicable, being achieved and maintained at the Site or portion of the Site that is subject of the Agreement within the deadlines set forth in the MCP (310 CMR 40.0000), or within such other deadlines as are specified in the Agreement; (g) the Response Actions taken at the Site or portion of the Site that is subject to the Agreement meeting the appropriate Standard of Care; and (h) such other terms as agreed to by the Applicant in the Agreement. ( 4) No Brownfields Covenant Notto Sue Agreement shall relieve the Applicant of any potential liability the Applicant may have for a Release or Threat of Release of Oil or Hazardous Material: (a) that first begins to occur after the Commonwealth's covenant Not to sue the Applicant included within said Agreement vests; (b) from which there is a new Exposure that results from any action or failure to act by the Applicant pursuant to M.G.L. c. 21E during its ownership or operation of the Site; or ( c) that violates or is inconsistent with an Activity and Use Limitation established pursuant to M.G.L. c. 21E and the MCP (310 CMR 40.0000). (5) Each Brownfields Covenant Not to Sue Agreement that has been entered into with an Applicant who has asserted in his or her application that he or she is an Eligible Person will so indicate, and the liability relief provided by said Agreement shall be subject to the Applicant's being an Eligible Person unless the Agreement expressly states otherwise. (6) Each Brownfields Covenant Not to Sue Agreement shall state whether and the extent to which a Subsequent Owner or Operator will be able to make use of the liability relief provided by the Agreement. The liability relief available to a Subsequent Owner or Operator shall be subject to the same terms and conditions as those that apply to the Applicant. Liability relief that is available to an Applicant who has asserted in his or her application that he or she is an Eligible Person shall not be available to a Subsequent Ov.'Iler or Operator who is not an Eligible Person, unless the Agreement expressly states otherwise. (7) Each Brm:vnfields Covenant Not to Sue Agreement shall state when liability relief provided by the Agreement will vest. ln no event shall liability relief that would bar claims brought by Affected Third Parties against an Applicant who is not an Eligible Person vest prior to the achievement of a Permanent Solution or Remedy Operation Status for the Site or portion of the Site that is the subject of the Agreement. (8) The liability protection offered by each Brownfields Covenant Not to Sue Agreement shall be subject to termination for cause in accordance with 940 CMR 23.09, and each such Agreement will so state.