Bill Text: PA SB84 | 2009-2010 | Regular Session | Introduced

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Bill Title: Further providing for definitions, for limitation of economic development agency environmental liability and for defenses to liability.

Spectrum: Slight Partisan Bill (Republican 8-3)

Status: (Passed) 2009-07-27 - Act No. 26 [SB84 Detail]

Download: Pennsylvania-2009-SB84-Introduced.html

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PRINTER'S NO. 67
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No. 84 Session of2009
INTRODUCED BY GREENLEAF, EICHELBERGER, ERICKSON, MUSTO, RAFFERTY, BROWNE, COSTA, EARLL, WAUGH, O'PAKE AND WONDERLING, JANUARY 29, 2009
REFERRED TO ENVIRONMENTAL RESOURCES AND ENERGY, JANUARY 29, 2009
AN ACT
Amending the act of May 19, 1995 (P.L.33, No.3), entitled "An
act limiting environmental liability for economic development
agencies, financiers and fiduciaries," further providing for
definitions, for limitation of economic development agency
environmental liability and for defenses to liability.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. The definitions of "department," "economic
development agencies," "environmental acts" and "indicia of
ownership" in section 3 of the act of May 19, 1995 (P.L.33, No.
3), known as the Economic Development Agency, Fiduciary and
Lender Environmental Liability Protection Act, are amended to
read:
Section 3. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
* * *
"Department." The Department of Environmental [Resources]
Protection of the Commonwealth.
"Economic development agencies." The term includes:
(1) Any redevelopment authority created under the act of
May 24, 1945 (P.L.991, No.385), known as the Urban
Redevelopment Law and any nonprofit corporation created and
controlled by a redevelopment authority to carry out its
statutory purpose.
(2) Any industrial development agency as that term is
defined in the act of May 17, 1956 (1955 P.L.1609, No.537),
known as the Pennsylvania Industrial Development Authority
Act.
(3) Any industrial and commercial development authority
created under the act of August 23, 1967 (P.L.251, No.102),
known as the Economic Development Financing Law.
(4) Any area loan organization as that term is defined
in the act of July 2, 1984 (P.L.545, No.109), known as the
Capital Loan Fund Act.
(5) Any other Commonwealth or municipal authority which
acquires title or an interest in property.
(6) Municipalities or municipal industrial development
or community development departments organized by ordinance
under a home rule charter which buy and sell land for
community development purposes.
(7) Tourist promotion agencies or their local community-
based nonprofit sponsor which engage in the acquisition of
former industrial sites as part of an "Industrial Heritage"
or similar program.
(8) Conservancies engaged in the renewal or reclamation
of an industrial site.
"Environmental acts." Collectively and separately, the act
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of June 22, 1937 (P.L.1987, No.394), known as The Clean Streams
Law, the act of January 8, 1960 (1959 P.L.2119, No.787), known
as the Air Pollution Control Act, the act of July 7, 1980 (P.L.
380, No.97), known as the Solid Waste Management Act, the act of
October 5, 1984 (P.L.734, No.159), known as the Worker and
Community Right-to-Know Act, the act of July 13, 1988 (P.L.525,
No.93), referred to as the Infectious and Chemotherapeutic Waste
Law, the act of October 18, 1988 (P.L.756, No.108), known as the
Hazardous Sites Cleanup Act, the act of July 6, 1989 (P.L.169,
No.32), known as the Storage Tank and Spill Prevention Act, the
act of December 7, 1990 (P.L.639, No.165), known as the
Hazardous Material Emergency Planning and Response Act, and the
act of June 11, 1992 (P.L.303, No.52), known as the Oil Spill
Responder Liability Act, and all such acts as they may be
amended from time to time, and any Federal, State or local law,
statute, regulation, rule, ordinance, court or administrative
order or decree, common law, interpretation or guidance, now or
hereafter in existence pertaining to employees, occupational
health and safety, public health or safety, natural resources or
the environment.
* * *
"Indicia of ownership." Any legal or equitable interest in
property, including fee title, acquired directly or indirectly:
(1) for securing payment of a loan or indebtedness, a
right of reimbursement or subrogation under a guaranty or the
performance of another obligation;
(2) evidencing ownership under a lease financing
transaction where the lessor does not initially select or
ordinarily control the daily operation or maintenance of the
property; [or]
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(3) in the course of creating, protecting or enforcing a
security interest or right of reimbursement of subrogation
under a guaranty[.]; or
(4) to secure public funding for the environmental
investigation, remediation or redevelopment of or
implementation of infrastructure improvements at the property
for, among other purposes, the transfer of title to the
property to a third party after rehabilitation.
The term includes evidence of interest in mortgages, deeds of
trust, liens, surety bonds, guaranties, lease financing
transactions where the lessor does not initially select or
ordinarily control the daily operation or maintenance of the
property, other forms of encumbrances against property
recognized under applicable law as vesting the holder of the
security interest with some indicia of title.
* * *
Section 2. Sections 4 and 7 of the act are amended to read:
Section 4. Limitation of economic development agency
environmental liability.
(a) General rule.--An economic development agency that holds
an indicia of ownership in property:
(1) as a security interest for the purpose of developing
or redeveloping the property; [or]
(2) to finance an economic development or redevelopment
activity; or
(3) to secure public funding for the environmental
investigation, remediation or redevelopment of or
implementation of infrastructure improvements at the property
for, among other purposes, the transfer of title to the
property to a third party after rehabilitation
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shall not be liable under the environmental acts to the
department or to any other person in accordance with [the
following:] this section.
(b) Scope of limited liability.--
(1) An economic development agency shall not be liable
in an action by the department, as a responsible person,
unless the economic development agency, its employees or
agents directly cause an immediate release or directly
exacerbate a release of a regulated substance on or from the
property.
(1.1) An economic development agency, its officers,
directors, agents, members, employees and its professional
consultants shall not be liable, including, but not limited
to, for property damages, diminution of property value,
stigma damages, natural resource damages, economic loss,
bodily injury or death relating to any regulated substance
currently or previously released on or from the property, in
any action by a person alleging liability of any kind
pursuant to the environmental acts, unless the economic
development agency, its officers, directors, agents, members,
employees or its professional consultants directly cause an
immediate release or directly exacerbate a release of any
regulated substance on or from the property.
(2) An economic development agency which forecloses on
or assumes possession of a property shall remain within the
exemption from liability under [this section] subsection (a).
(3) An economic development agency that conducts a
remedial action in accordance with a written agreement with
the department shall not be liable as a responsible party,
owner, operator or occupier in any action by the department
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for a release or potential release of any regulated
substance.
(4) There is cooperation with governmental agencies
performing a remedial action, as follows:
(i) An economic development agency and any of its
successors and assigns may take no action that would
disturb or be inconsistent with remedial response that is
proposed, approved or implemented by the Federal
Environmental Protection Agency.
(ii) An economic development agency and any of its
successors and assigns shall permit access to Federal and
Commonwealth agencies and other parties acting under the
direction of these agencies to evaluate, perform or
maintain a remedial action.
(iii) An economic development agency or any of its
successors and assigns shall perform, operate and
maintain remedial actions pursuant to State laws as
directed by the department.
Section 7. Defenses to liability.
A lender, fiduciary or economic development agency can avoid
liability under the environmental acts [or the common-law
equivalents] by showing evidence that a release or threatened
release of regulated substances for which the lender [or],
fiduciary or economic development agency otherwise is
responsible under sections 4, 5 and 6 was caused by any of the
following:
(1) An act of God.
(2) An intervening act of a public agency.
(3) Migration from property owned by a third party.
(4) Actions taken or omitted in the course of rendering
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care, assistance or advice in accordance with the
environmental acts or at the direction of the department.
(5) An act of a third party who was not an agent or
employee of the lender, fiduciary or economic development
agency.
(6) If the alleged liability for a lender or economic
development agency arises after foreclosure and the lender or
economic development agency exercised due care with respect
to the lender's or economic development agency's knowledge
about the regulated substances and took reasonable
precautions based upon such knowledge against foreseeable
actions of third parties and the consequences arising
therefrom. A lender, fiduciary or economic development agency
can avoid liability by proving any other defense which may be
available to it under the environmental acts or common law.
Section 3. This act shall take effect in 60 days.
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