[§128D-18]  Apportionment and contribution. (a)  Liability to the State for any costs or expenditures under this chaptershall be joint and several.  Wholly apart from such liability to the State, asbetween parties who are liable under this chapter, there shall be the rights ofapportionment and contribution as provided in this section.

(b)  Any party found liable for any costs orexpenditures may institute an action for apportionment under this section atany time after receiving an order or after costs or expenditures are incurredby the liable party.  Any party found liable for any costs or expenditures mayjoin any other parties that may be liable under section 128D-6 in an action forapportionment.

(c)  Any action for apportionment under thissection shall be without prejudice to any other action that may be brought byan objecting party under this chapter.

(d)  Any party who has incurred removal orremedial action costs in accordance with this chapter may seek contribution orindemnity from any person who is liable pursuant to this chapter.  An action toenforce a claim for indemnity or contribution may be brought by any defendantin an action brought pursuant to this chapter or in a separate action after theparty seeking contribution or indemnity has paid removal or remedial actioncosts in accordance with this chapter.  In resolving claims for indemnity orcontribution, the court may allocate costs among liable parties using thoseequitable principles which are appropriate.

(e)  Any party who receives compensation forresponse costs or damages or claims pursuant to this chapter shall be precludedfrom recovering compensation for the same response costs or damages or claimspursuant to any other state or federal law.  Any party who receives compensationfor response costs or damages or claims pursuant to any other state or federallaw shall be precluded from receiving compensation for the same response costsof damages or claims as provided in this chapter.

(f)  Any party found liable for any costs orexpenditures under this chapter except under section 128D-5, who establishes bya preponderance of the evidence that only a portion of those costs orexpenditures are attributable to that party's actions, shall be required to payonly for that portion.  All recoverable costs or expenditures shall beallocated by the court.  If any share of the response costs is not paid by aliable party because of insolvency or otherwise, that share shall be assignedto an orphan share.  If there is an orphan share, the court shall adjust theallocations of the remaining liable parties so that in addition to paying theirallocated shares, they proportionately pay the entire orphan share.

(g)  In the process of apportionment of costsamong the parties found liable and the establishment of the orphan share, thecourt shall consider the following criteria:

(1)  The volume of hazardous substances transported tothe site by each party.  For purposes of determining volume, the volume of eachtransport of a hazardous substance shall be allocated between the arranger forthe transport and the transporter of a hazardous substance in apportioning apercentage share of response costs;

(2)  The anticipated impact of the hazardous substanceand control of the hazardous substance on the cost of response activity at thesite;

(3)  The degree of care exercised in the disposal ortreatment, or both of the hazardous substance by each party that may be liableunder section 128D-6;

(4)  The manner in which the site was operated and thedegree of care exercised by the owner or operator;

(5)  The degree of a party's involvement in siteoperations;

(6)  Whether all applicable permits and licensesrequired by law were obtained and complied with;

(7)  The degree to which the party cooperated withfederal, state, or local officials to prevent, minimize, respond to, or remedythe release or threat of release; and

(8)  Any other aggravating or mitigating factor thatthe court determines to be relevant.

(h)  If the court finds the evidence insufficientto establish each party's portion of the costs or expenditures under subsection(f), the court shall apportion those costs or expenditures, to the extentpracticable, according to equitable principles, among the parties.

(i)  Any costs or expenditures required by thischapter made by a liable party shall be credited toward the party's apportionedshare.  Costs shall include reasonable attorney's fees. [L 1991, c 280, pt of§1]