49-283

49-283. Responsible party liability exemptions;
definitions

A. For purposes of imposing liability under this article, and except as provided in
this section, a person is deemed the party responsible for the release or threatened
release of a hazardous substance if the person:

1. Owned or operated the facility:

(a) When the hazardous substance was placed or came to be located in or on the
facility.

(b) When the hazardous substance was located in or on the facility but before the
release.

2. Owned or possessed the hazardous substance and arranged, by contract, agreement
or otherwise, for the disposal, treatment or transport for disposal or treatment of the
hazardous substance.

3. Accepted for transport to a disposal or treatment facility waste that contained
a hazardous substance and either selected the facility to which it was transported or
disposed of it in a manner contrary to law.

B. Notwithstanding the provisions of subsection A, a person that owns real property
is not a responsible party if there is a release or threatened release of a hazardous
substance from a facility in or on the property unless one or more of the following
applies to that person:

1. Was engaged in the business of generating, transporting, storing, treating or
disposing of a hazardous substance at the facility or disposing of waste at the facility,
or knowingly permitted others to engage in such a business at the facility.

2. Permitted any person to use the facility for disposal of a hazardous substance.

3. Knew or reasonably should have known that a hazardous substance was located in
or on the facility at the time right, title or interest in the property was first
acquired by the person and engaged in conduct by which he associated himself with the
release. For the purpose of this paragraph, a written warranty, representation or
undertaking, which is set forth in an instrument conveying any right, title or interest
in the real property and which is executed by the person conveying the right, title or
interest, or which is set forth in any memorandum of any such instrument executed for the
purpose of recording, is admissible as evidence of whether the person acquiring any
right, title or interest in the real property knew or reasonably should have known that a
hazardous substance was located in or on the facility. For purposes of this paragraph,
"associated himself with the release" means having actual knowledge of the release and
taking action or failing to take action that the person is authorized to take and that
increases the volume or toxicity of the hazardous substance that has been released.

4. Took action which significantly contributed to the release after he knew or
reasonably should have known that a hazardous substance was located in or on the
facility.

C. Any liability which accrues to an owner of real property under this section does
not accrue to any other person who is not an owner of the real property merely because
the other person holds some right, title or interest in the real property. An owner of
real property on which a public utility easement is located is not a responsible party
with respect to any release caused by any act or omission of the public utility which
holds the easement in carrying out the specific use for which the easement was granted.

D. A person otherwise deemed a responsible party is not liable under this article
if he can establish by a preponderance of the evidence that the release or threat of
release of a hazardous substance and the resulting damages were caused solely by:

1. An act of God.

2. An act of war.

3. An act or omission of a third party, whether lawful or unlawful including acts
of vandalism or unlawful disposal of hazardous waste or hazardous substances, other than
an employee or agent of that person or other than one whose act or omission occurs in
connection with a contractual relationship, existing directly or indirectly, with that
person, unless the sole contractual arrangement arises from a published tariff and
acceptance for carriage by a common carrier by rail, if that person establishes by a
preponderance of the evidence that:

(a) He exercised due care with respect to the hazardous substance concerned, taking
into consideration the characteristics of the hazardous substance in light of all
relevant facts and circumstances.

(b) He took precautions against foreseeable acts or omissions of any such third
party and the consequences that could foreseeably result from such acts or omissions.

4. A release or threatened release which was subject to limits or conditions in a
federal permit or a state permit relating to the protection of public health or the
environment and the operation of the releasing facility has been and is in compliance
with applicable limits or conditions.

5. The application of a pesticide product registered under the federal insecticide,
fungicide, and rodenticide act (61 Stat. 163) and applied according to label
requirements.

6. Liability has been assumed by the federal postclosure liability fund established
under 42 United States Code section 9607(k).

7. Any combination of paragraphs 1 through 6 of this subsection.

E. A person is not a responsible party with respect to a hazardous substance that
is located on or beneath property that is owned or occupied by that person if the
hazardous substance is present solely because it migrated from property that is not owned
or occupied by that person and that person is not otherwise a responsible party as
prescribed by subsection A, paragraph 2 or 3.

F. A person is not liable for costs or damages incurred solely as a result of an
action taken or omitted while rendering care, assistance or advice that is consistent
with rules adopted by the director, is consistent with the national contingency plan or
is under the direction of an on-scene coordinator appointed pursuant to the national
contingency plan and that is rendered with respect to a release or a threat of a release
of a hazardous substance that creates a danger to public health or the environment. This
subsection does not preclude liability for costs or damages that result from that
person's negligence.

G. A state or local government and its employees or authorized representatives are
not liable for costs or damages incurred as a result of an action taken in response to an
emergency created by the release or threatened release of a hazardous substance that is
generated by or from a facility owned by another person. This subsection does not
preclude liability for costs or damages that result from gross negligence or intentional
misconduct by this state or local government. For purposes of this subsection, reckless,
willful or wanton misconduct constitutes gross negligence.

H. A person who maintains indicia of ownership in a property primarily to protect a
security interest in a facility and who does not participate in the management of the
facility is not liable as an owner or operator of that facility pursuant to this
section. This subsection does not apply to a person who does any of the following:

1. Through intentional misconduct or gross negligence causes, contributes to or
aggravates the release of a hazardous substance.

2. Fails to disclose to the facility's purchaser the known presence of a release or
a threatened release of a hazardous substance at the time of sale or divestiture of the
facility or the security interest in the facility.

3. Fails to obtain a phase I environmental assessment of the facility that complies
with standards adopted by rule pursuant to subsection K of this section at the time of or
at a reasonable time before foreclosure. This paragraph does not apply to residential
properties with fewer than five residential units.

4. Fails to do any of the following after acquiring ownership of the facility:

(a) Provide the department reasonable access so that the necessary remedial actions
may be conducted.

(b) Undertake reasonable steps to control access to the area of known presence of a
release of a hazardous substance to protect the public health and welfare and the
environment.

(c) Act diligently to sell or otherwise divest the property within two years of the
lender's possession or ownership, whichever is earlier.

I. A fiduciary is not personally liable as an owner or operator pursuant to this
section. This section does not preclude claims against assets held in an estate, a trust
or other fiduciary capacity for the release or a threatened release of a hazardous
substance from one of the assets. This section does not apply if either of the following
apply:

1. A fiduciary through intentional misconduct or gross negligence causes,
aggravates or contributes to the release or threatened release of hazardous substances or
permits others to do so, except that a fiduciary shall not be liable for the intentional
misconduct or gross negligence of any nonemployee agent or independent contractor if the
fiduciary has not specifically directed the nonemployee agent or independent contractor
to perform the grossly negligent act or engage in the intentional misconduct.

2. The appointment of the fiduciary is for the purpose of avoiding liability under
this article. It is prima facie evidence that the fiduciary was appointed to avoid
liability under this article if the facility is the only substantial asset in the
fiduciary estate.

J. Subsections F, G, H and I shall not be construed to affect the liability of any
person who is otherwise liable with respect to the release or threat of release pursuant
to this section.

K. The director may adopt rules to implement subsections H and I.

L. A fiduciary may not be a fiduciary and grantor of the same fiduciary estate.

M. A unit of state or local government is not liable for purposes of this section
if that unit is not liable under section 101(35)(A)(ii) or section 101(20)(D) of CERCLA.

N. Nonmanagerial employees acting within the course and scope of their employment
are not liable under this article.

O. For purposes of this section:

1. "Fiduciary" means:

(a) A trust company or bank certified or authorized to engage in the trust business
pursuant to title 6, chapter 8, article 1.

(b) Any person appointed by a court or testamentary act to act as personal
representative, executor, trustee, administrator, guardian, conservator, receiver or
trustee in bankruptcy.

(d) Any person acting as a trustee pursuant to title 14, chapter 7.

(e) Any person acting pursuant to and subject to fiduciary obligations under the
employee retirement income security act of 1974 (29 United States Code sections 1101
through 1114).

2. "Indicia of ownership" means legal or equitable title that has been acquired
through or is incident to the default of a borrower.