Liability Relief: A Comparison

By Kenneth S. Kamlet

Voluntary cleanup programs reward cleanup volunteers with a covenant not to sue or similar form of liability protection. This protection is usually transferable to subsequent purchasers.

In some states (e.g., Connecticut), responsible parties cannot participate. In others (e.g., Pennsylvania), they can participate as fully as a volunteer. And, in still others (e.g., New Jersey, Massachusetts and New York), responsible parties can participate in specified circumstances, and/or reap more limited benefits.

Other details may also vary. For example, New York gives special protection to brownfield cleanups by local governments under its Bond Act program — stopping not just with liability relief, but with a full indemnification backed up by its Attorney General.

On the other hand, New York is not among the states, such as Connecticut, that (following federal law) immunize downgradient property owners against off-site sources that contaminated groundwater.

This is the last of a three-part series. Part Two compared “How Clean is Clean” standards and Part One looked at financial incentives.

Kenneth S. Kamlet is director of legal affairs at Newman Development Group in Vestal, N.Y. and serves as co-chair of the policy and legislative committee for NBA’s New York chapter. Readers are encouraged to call errors or omissions to Ken at ken@newmandevelopment.com.