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

(b)  The director's order may be issued withouta hearing and shall be supported by an administrative record consisting of thedocuments and other papers and materials considered by the director in issuingthe order.  The order shall be effective immediately unless it providesotherwise.  The person receiving the order may supplement the administrativerecord with other documents, writings, or material within thirty days afterreceipt of the order.  In the sole discretion of the director, theadministrative record may be supplemented further by a proceeding in whichtestimony and other evidence may be received.  A person aggrieved by the orderwho is and continues to be in compliance with the order may petition thecircuit court for an expedited review of the order after service of a certifiedcopy of the order.  The review by the court shall be confined to theadministrative record.  The court shall, upon request by any party, hear oralarguments and receive written briefs.  Discovery shall not be permitted.  Thecourt shall affirm the order or, if it finds that the order is arbitrary andcapricious, it shall reverse or modify the order.  The court's order in anyexpedited review shall be without prejudice to any party in any otherproceeding.

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

(d)  If the court reverses the director'sdetermination that the objecting party is subject to liability under thischapter, the court shall vacate the order of the director in its entirety andaward the objecting party reimbursement from the fund, or if sufficient fundsare not available, then from the State, of all costs incurred in complying withthe order, which may include the party's reasonable attorney's fees.

(e)  In reviewing a director's order under thissection, the court shall uphold the director's decision on technical issues,including the nature and scope of the action ordered, unless the objectingparty demonstrates, based on the administrative record, that the decision isarbitrary and capricious.

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

(g)  The technical panel shall consist of threemembers, each of whom shall have expertise in engineering, or expertise in thephysical, chemical, biological, or health sciences.

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

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

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

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

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

(1)  The decision is not consistent with the court'sfindings 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 thepanel, or any of the members;

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

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

(j)  Any action for concurrent review underthis section shall have priority on the civil trial calendar of the circuitcourt.

(k)  The petitioner, in any action pursuant tosection 128D-19, may seek judicial review of any partial or complete denial ofthe petition.  The review shall be conducted pursuant to section 91-14.  Inaddition to any other relief that may be awarded, the court may award to thepetitioner reimbursement from the fund, or if there are insufficient funds thenfrom 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 andrelated to matters of such central relevance to the action that the actionwould have been significantly changed had the errors not been committed. [L1990, c 298, pt of §17; am L 1991, c 280, §15]