This section limits liability for certain drycleaning-related contamination claims and makes approval and good-faith implementation of a department plan important.
(a)(1) Except as otherwise preempted or limited by applicable federal law, upon reporting to the department and the board of any contamination or suspected contamination, no owner or operator, wholesale distributor, impacted third party, adjacent landowner, or person owning any abandoned drycleaning facility who shall have elected to be covered by this chapter shall be liable to the state or any third party for costs incurred in the investigation or cleanup of, or equitable relief relating to, or resulting, in whole or in part, from a preexisting release of any drycleaning agent at, on, or from any drycleaning facility, wholesale distribution facility, or abandoned drycleaning facility or a new release of any drycleaning agent, unless such new release resulted from noncompliance with a department approved investigation, assessment, or remediation plan. (2) Pursuant to the rules and regulations to be adopted by the department as required by Section 22-30D-4 for investigation, assessment, and remediation plans, relative to sites reported to the department and the board, such plans shall describe in sufficient detail those actions planned to develop information necessary to perform a risk assessment or identify applicable cleanup standards for the qualifying property utilizing risk-based corrective action principles through the appropriate implementation of applicable institutional controls and/or engineering controls. (3) Upon the department’s approval of the investigation, assessment, or remediation plan, it shall be the responsibility of the owner or operator, wholesale distributor, impacted third party, adjacent landowner, or person owning any abandoned drycleaning facility to implement said plans. (b) The limitation of liability provided by subsection (a) shall be contingent upon the good faith implementation of the investigation, assessment, or remediation plan as approved by the department. (c) The limitation of liability provided by subsection (a) shall not affect any right of indemnification which any person has or may acquire by contract against any other person; or apply to persons who intentionally, wantonly, or willfully violate federal or state regulations in the remediation process. (d) The limitation of liability provided by subsection (a) shall extend to the heirs, assigns, successors, predecessors, and designees of the person to whom such limitation of liability is granted. (e) No small business as defined in this chapter who shall have elected to be covered by the provisions of this chapter shall be liable to any impacted third party or adjacent landowner under any state law for any damages of any nature whatsoever to real or personal property of any impacted third party or adjacent landowner as a result of any contamination caused by or resulting from any contamination on, at, or from any drycleaning facility, abandoned drycleaning facility, or wholesale distribution facility. (f) No person shall be liable to any other person under any state law for any damages of any nature whatsoever to real or personal property of such other person as a result of any contamination, except upon proof that a failure to exercise due care was the proximate cause of the contamination; provided, that substantial compliance with applicable laws in effect at the time the contamination occurred shall be prima facie evidence of the exercise of due care. (g) Except as otherwise preempted or limited by applicable law, this section does not preclude claims for damages based upon personal injuries.