49-1017

49-1017. Powers of director; corrective
actions

A. The director may take corrective action with respect to a release of a regulated
substance that is petroleum into the environment from an underground storage tank if the
director determines that action is necessary to protect human health, safety or the
environment and any of the following conditions exist:

1. The department cannot locate, within ninety days or a shorter period necessary
to protect human health or the environment, a person who is all of the following:

(a) An owner or operator of the tank concerned.

(b) Subject to the corrective action requirements of section 49-1005.

(c) Financially or technically capable of properly carrying out the corrective
action required by section 49-1005. If the owner or operator and the department jointly
determine that the owner or operator is not financially or technically able to carry out
the corrective action and the owner or operator has demonstrated an inability to use an
environmental contractor, the department and the owner may enter into a contract under
which the department acts as manager of the corrective action on behalf of the owner or
operator. The existence of a management contract with the department does not relieve the
owner of any liability for costs that are not covered by section 49-1054, subsection A.

2. Corrective action costs at a facility exceed the amount of coverage required by
section 49-1006 and, considering the class or category of underground storage tank from
which the release occurred, expenditures from the underground storage tank revolving fund
are necessary to ensure effective corrective action.

3. The owner or operator has failed or refused to comply with an order of the
director under section 49-1013 to take the corrective actions required by section
49-1005.

B. In determining whether to take a corrective action pursuant to subsection A of
this section, the director shall consider and make written findings regarding all of the
following factors:

1. The physical and chemical characteristics of the type of petroleum released,
including its toxicity, persistence and potential for migration.

2. The hydrogeologic characteristics of the site where the underground storage tank
is located and the surrounding area.

3. The proximity, quality and current and future uses of nearby surface water and
groundwater.

4. The potential effects of residual contamination on nearby surface water and
groundwater.

5. The degree of exposure.

C. If direct costs are incurred by the director for undertaking corrective action
with respect to a release of a regulated substance that is petroleum, the owner and
operator are liable to this state for these direct costs, except for those amounts that
are eligible for and within the coverage limits provided by section 49-1054 or those
amounts that are not allocated to the owner or operator pursuant to subsection D of this
section. Liability imposed pursuant to this subsection is strict. In this subsection,
"direct costs" means the cost of the corrective actions, investigations, enforcement and
litigation.

D. If there is more than one responsible person, liability under this section shall
be equitably allocated on a case-by-case basis according to section 49-1016, subsection
F, and using the following factors as those factors are appropriate under the
circumstances:

1. The duration and percentage of ownership or operation of the underground storage
tank during a release of regulated substances from the tank.

2. The amount and nature of the regulated substances released.

3. The degree of care exercised by each person with respect to the regulated
substances released.

4. The ability to distinguish between the respective releases of more than one
responsible person.

5. Other factors that are appropriate under the circumstances.

E. The allocation of liability under this section shall be promptly determined by
one or more mediators who shall be selected by the responsible persons within sixty days
after the responsible persons are identified by the director. The director may select a
mediator and convene a mediation upon the failure of the responsible persons to select
one or more mediators. The mediator shall not have a conflict of interest with the
responsible persons. A mediation convened by the director shall be held within sixty days
of the mediator being selected. The director shall provide notice to the responsible
persons of the time and place for the mediation and the name of the mediator or
mediators. This notice shall be provided at least forty-five days prior to the date
scheduled for mediation. Costs of mediation shall be eligible for coverage under section
49-1054 and shall be allocated to participants in the mediation in the same proportion as
the costs of corrective action. Nothing in this section shall excuse the obligations of
an owner or operator to take timely and adequate action in response to a release of
regulated substances as required in this chapter. Nothing in this section shall diminish
the right of any person to bring an action against any other person as provided in
section 49-1019 for contribution or reimbursement for the reasonable costs of corrective
action that person has been allocated pursuant to this section.

F. The director may take a corrective action with respect to a release of a
regulated substance that is not petroleum only as a remedial action subject to chapter 2,
article 5 of this title, and the rules adopted pursuant to that article. If the director
takes a corrective action for the release of a regulated substance that is not petroleum,
all of the rights, duties and responsibilities of a person associated with the release
shall be determined pursuant to that article.