49-287

49-287. Enforcement; use of fund; inspections
and information gathering; civil penalties

A. Except as provided in section 49-286, the provisions of this article are
independent of and are not subject to the enforcement remedies of article 4 of this
chapter and section 49-264.

B. This section does not preclude the director from initiating actions pursuant to
section 505 of the clean water act and section 1449 of the safe drinking water act. The
director shall not initiate any action under section 107(a) or 107(f) of CERCLA or
section 7002 of the resource conservation and recovery act to the extent that the action
is inconsistent with this article, except under any of the following circumstances:

1. In an action initiated by the director filing a complaint contemporaneously with
a consent decree or any other agreement to provide contribution protection or a covenant
not to sue under CERCLA.

2. In an action involving a facility at a site listed on the national priorities
list on April 29, 1997. In an action involving a facility at a site on the national
priorities list that is listed after April 29, 1997 the director may initiate an action
if the facility is not being remediated pursuant to this article or any other provision
of this title.

3. In a counterclaim action when the state is sued under section 107 (a) of CERCLA,
but only against the party asserting the claim. For purposes of this paragraph, "state"
does not include political subdivisions of the state.

C. The director may initiate an action to recover natural resource damages under
section 107(f) of CERCLA but may recover only the proportionate share of these damages
from a defendant who is also a responsible party under this article.

D. Judicial actions initiated pursuant to this section have precedence over all
other civil proceedings.

E. If there is a release or the threat of a release of a hazardous substance which
may present an imminent and substantial danger to the public health or welfare or the
environment:

1. The director may take such remedial action as he deems necessary to protect the
public health or welfare or the environment.

2. The attorney general may request a temporary restraining order, a preliminary
injunction, a permanent injunction or any other relief necessary to protect the public
health or welfare or the environment from the release.

3. The director may issue an order requiring abatement of such release or threat of
a release and appropriate remedial action if the action is consistent with the criteria
listed in and rules adopted pursuant to section 49-282.06 and before taking such action
the director provides written notice to the responsible party, if known, and the owner of
the real property where the facility is located if the owner is not a responsible
party. The notice shall include:

(a) The reasons for the remedial action.

(b) A reasonable time for beginning and completing the actions, taking into account
the urgency of the actions for protecting public health or welfare or the environment.

(d) The intention of this state or a political subdivision to take remedial action
and the possible liability of the responsible party for the costs of such actions if that
action is not taken by the responsible party.

4. The director may take action pursuant to sections 49-287.01 through 49-287.07,
or enter into a settlement under section 49-292 or any other applicable provision of this
article. Actions taken by the director pursuant to sections 49-287.01 through 49-287.07
may substantially affect the rights and obligations of persons who may be liable under
this article for the release or threatened release of a hazardous substance at a site or
portion of a site for purposes of determining insurance coverage. Any action taken by
the director pursuant to sections 49-287.01 through 49-287.07 is not appealable unless
otherwise provided in this article.

F. A remedial action order issued under subsection E of this section becomes final
and enforceable in the superior court for purposes of subsections I and J of this section
unless, within thirty days after the receipt of the order, the recipient moves to quash
or modify the order in the superior court. If the motion to quash or modify the order
raises issues of fact, the recipient of the order and the state are entitled to conduct
expedited discovery on application to the court and are entitled to a priority for
trial. A party who undertakes the actions prescribed in a remedial action order issued
pursuant to this section may obtain a court order to recover from the fund the reasonable
and necessary costs of the actions if the party demonstrates to the court that the
actions required by the order were arbitrary and capricious or otherwise were not in
accordance with law, that the party is not a responsible party as prescribed by section
49-283 or for the amount of costs incurred that exceeded the party's share of liability
pursuant to section 49-285.

G. If there is a release or the threat of a release of any pollutant which may
present an imminent and substantial danger to the public health or welfare, the director
may take such remedial action as he deems necessary to protect the public health or
welfare or the environment.

H. Any remedial action costs, other than nonrecoverable costs, incurred by the
director pursuant to the procedures in subsection E of this section may be recovered in a
civil action brought by the attorney general against any responsible party pursuant to
section 49-287.07.

I. A responsible party who wilfully violates or fails or refuses to comply with any
order of the director under subsection E, paragraph 3 of this section may, in an action
brought in the superior court in the appropriate county to enforce such order, be
assessed a civil penalty of not more than five thousand dollars for each day in which the
violation occurs or the failure to comply continues. All civil penalties assessed
pursuant to this subsection shall be deposited, pursuant to sections 35-146 and 35-147,
in the state general fund.

J. A responsible party who fails, without sufficient cause, to properly provide
remedial action on order of the director pursuant to subsection E, paragraph 3 of this
section may be liable to this state for punitive damages in an amount up to three times
the amount of any costs incurred by the director as a result of the failure to take
proper action. The attorney general may commence a civil action against the responsible
party to recover the remedial action costs and the punitive damages. Any punitive
damages received by this state pursuant to this subsection shall be deposited, pursuant
to sections 35-146 and 35-147, in the state general fund. The director's failure to
comply with the requirements of section 49-282.06 or the director's order to take a
remedial action that causes the responsible party to incur costs that exceed the
responsible party's proportionate share of liability pursuant to section 49-285 is a
defense to an action for punitive damages and the amount of the punitive damages
requested may be reduced, in full or in part.

K. If the director may act pursuant to this section, he may undertake such
investigations, monitoring, surveys, testing and other information gathering as he may
deem necessary or appropriate to identify the existence and extent of the release or
threat of a release, the source and nature of the hazardous substances and the extent of
danger to the public health or welfare or to the environment. In addition, the director
may undertake such planning, legal, fiscal, economic, engineering, architectural and
other studies or investigations as he may deem necessary or appropriate to plan and
direct remedial actions, to recover the costs of remedial actions, other than
nonrecoverable costs, and to enforce this article.