§128D-17  Judicial review.  (a) 
Any person who receives and complies with the terms of any order issued under
this chapter may bring and maintain an action in the circuit court to review
the order as provided for in this section, prior to the completion of all
action required in this order, provided that the person shall not seek any form
of injunctive relief and at all times is in compliance with the order.



(b)  The director's order may be issued without
a hearing and shall be supported by an administrative record consisting of the
documents and other papers and materials considered by the director in issuing
the order.  The order shall be effective immediately unless it provides
otherwise.  The person receiving the order may supplement the administrative
record with other documents, writings, or material within thirty days after
receipt of the order.  In the sole discretion of the director, the
administrative record may be supplemented further by a proceeding in which
testimony and other evidence may be received.  A person aggrieved by the order
who is and continues to be in compliance with the order may petition the
circuit court for an expedited review of the order after service of a certified
copy of the order.  The review by the court shall be confined to the
administrative record.  The court shall, upon request by any party, hear oral
arguments and receive written briefs.  Discovery shall not be permitted.  The
court shall affirm the order or, if it finds that the order is arbitrary and
capricious, it shall reverse or modify the order.  The court's order in any
expedited review shall be without prejudice to any party in any other
proceeding.



(c)  In an expedited review of the director's
order concerning the determination that the aggrieved party is subject to
liability under this chapter, the court shall affirm the order unless it is
clearly shown to be arbitrary and capricious.



(d)  If the court reverses the director's
determination that the objecting party is subject to liability under this
chapter, the court shall vacate the order of the director in its entirety and
award the objecting party reimbursement from the fund, or if sufficient funds
are not available, then from the State, of all costs incurred in complying with
the order, which may include the party's reasonable attorney's fees.



(e)  In reviewing a director's order under this
section, the court shall uphold the director's decision on technical issues,
including the nature and scope of the action ordered, unless the objecting
party demonstrates, based on the administrative record, that the decision is
arbitrary and capricious.



(f)  If the court finds that the director's
order is arbitrary and capricious under subsection (e), the court shall issue
findings of fact and conclusions of law sufficient to advise the parties of the
deficiencies in the order.  The court shall thereafter allow the contesting
parties a thirty-day period following the entry of its findings of fact and
conclusions of law to agree to mutually acceptable technical modifications to
the challenged order.  However, if the contesting parties are unable to reach
agreement within the thirty-day period, then the parties shall notify the court
and each party shall select a technical panel member in accordance with
subsection (g) at the conclusion of the thirty-day period.  The court shall
order that the outstanding issues be submitted to a technical panel for binding
resolution of the issues identified by the court in a manner consistent with
the court's findings and conclusions, and the state contingency plan.



(g)  The technical panel shall consist of three
members, each of whom shall have expertise in engineering, or expertise in the
physical, chemical, biological, or health sciences.



(h)  A majority of the technical panel members
shall determine an appropriate resolution to the technical issues identified by
the court in the period of time the court orders.  The technical panel members
shall be selected as follows:



(1)  One member shall be selected by the director;



(2)  One member shall be selected by the objecting
party, or a majority of the objecting parties challenging the order; and



(3)  The foregoing two members shall select the third
member of the panel within thirty days of their selection.



(i)  After making a decision that resolves the
technical issues, the technical panel shall submit its final decision to the
court.  The court shall vacate the order found arbitrary and capricious and
enter an order adopting the decision submitted by the technical panel unless
the court finds that:



(1)  The decision is not consistent with the court's
findings of fact and conclusions of law and the state contingency plan;



(2)  The decision was procured by corruption, fraud,
or undue means;



(3)  There was evident partiality or corruption in the
panel, or any of the members;



(4)  The panel was guilty of misconduct by which the
rights of any party have been prejudiced; or



(5)  The panel exceeded its powers or so imperfectly
executed them that a mutual, final, and definite decision upon the subject
matter submitted was not made.



(j)  Any action for concurrent review under
this section shall have priority on the civil trial calendar of the circuit
court.



(k)  The petitioner, in any action pursuant to
section 128D-19, may seek judicial review of any partial or complete denial of
the petition.  The review shall be conducted pursuant to section 91-14.  In
addition to any other relief that may be awarded, the court may award to the
petitioner reimbursement from the fund, or if there are insufficient funds then
from the State, which may include appropriate costs, fees, and other expenses,
including reasonable attorney's fees.



(l)  In reviewing alleged procedural errors,
the court may disallow costs or damages only if the errors were so serious and
related to matters of such central relevance to the action that the action
would have been significantly changed had the errors not been committed. [L
1990, c 298, pt of §17; am L 1991, c 280, §15]