49-285

49-285. Liability for remedial actions costs;
limitation of actions

A. Except as otherwise provided in section 49-283, a person who is a responsible
party shall be strictly and severally liable for such reasonable, necessary and
cost-effective expenditures for remedial actions as are incurred by this state, a
political subdivision of this state or any other person in a manner consistent with the
rules and procedures adopted under section 49-282.06, but not including nonrecoverable
costs. A responsible party may be held liable for remedial action costs for a release of
a hazardous substance even though the conduct that resulted in the release or the release
itself occurred before August 13, 1986.

B. In order to preserve any right to recover remedial action costs from responsible
parties, remedial actions conducted by this state, a political subdivision of this state
or any other person shall when evaluated as a whole be in substantial compliance with the
rules and procedures adopted pursuant to section 49-282.06. The director's approval of a
remedial action that is conducted by a person other than the state is not required to
preserve any right to recover remedial action costs from potentially responsible
parties. Any person other than the state who undertakes a remedial action may request
that the director approve the remedial action as prescribed by rules adopted pursuant to
section 49-282.06 at any time before, during or after the remedial action. The
director's decision shall be in writing and shall specify the basis of the decision. Any
remedial action so approved by the director shall be deemed to be in substantial
compliance with the rules and procedures adopted pursuant to section 49-282.06. Any
person who requests the director's approval of a remedial action shall reimburse the
department for the total reasonable cost to the department for the review of the remedial
action unless the director waives all or a part of the reimbursement. These monies shall
be deposited in the water quality assurance revolving fund established by section
49-282. Costs that are reimbursed to the department by a party that obtains the
director's approval of remedial actions pursuant to this subsection constitute remedial
action costs that may be recovered from responsible parties.

C. Any person who is a defendant in an enforcement proceeding brought under section
49-287 may join in the action any other person who is or may be a responsible party.

D. Except as prescribed by section 49-283.01, this article does not affect or
modify in any way the obligations or liability of any person, by reason of subrogation or
otherwise, under any other provision of state or federal law, including common law, for
damages, injury or loss resulting from a release of any hazardous substance or for
remedial action costs, except that any person who receives compensation for remedial
action costs pursuant to this article is precluded from recovering compensation for the
same remedial action costs pursuant to any other federal or state law. Any person who
receives compensation for remedial action costs pursuant to any other federal or state
law is precluded from receiving compensation for the same remedial action costs as
provided in this article.

E. In allocating several liability between two or more potentially responsible
parties, the department, an allocator pursuant to section 49-287.06 or a court shall
consider the following to determine each responsible party's allocated shares and the
orphan shares:

1. The amount and concentration of each hazardous substance involved.

2. The degree of toxicity of each hazardous substance involved.

3. The degree of involvement by the responsible parties in the generation,
transportation, treatment, storage or disposal of the hazardous substance.

F. After the allocated shares and the orphan shares are determined pursuant to
subsection E of this section and reduced to writing, the department, an allocator or the
court may consider the following factors to adjust the allocated shares of the
responsible parties, except that any adjustment under this subsection shall not adjust
the amount allocated to orphan shares:

1. The magnitude of the risk to human health or the environment caused by each
hazardous substance involved.

2. The degree of cooperation by the responsible party with federal, state or local
officials to prevent any harm to the public health or the environment.

3. Any other factors deemed relevant by the department, an allocator or the court
in determining the liability of the parties under this section.

G. An action brought by a person other than the state to recover remedial action
costs from a responsible party shall be brought within three years of the completion of
the remedial action or within six years of the initiation of on-site physical
construction activities for the remediation, removal or disposal of hazardous substances,
whichever is earlier.

H. In an action brought for recovery of remedial action costs incurred at a site
not on the registry maintained pursuant to section 49-287.01 or that is brought pursuant
to section 49-287.07, subsection A, paragraph 3, subdivision (a), (b) or (d), the court
shall initially allocate costs among the responsible parties based on the factors listed
in subsection E of this section. To the extent that the allocation results in costs
being allocated to orphan shares, those costs shall be reallocated to the responsible
parties based on such equitable factors as the court deems appropriate, including:

1. The factors listed in subsection F of this section.

2. Each responsible party's ability to pay.

3. The degree of care exercised by each responsible party with respect to the
hazardous substance of concern and taking into account the characteristics of that
substance.