§128D-6  Liability.  (a) Notwithstanding any other provision or rule of law, and subject only to thedefenses set forth in subsection (c):

(1)  The owner or operator or both of a facility orvessel;

(2)  Any person who at the time of disposal of anyhazardous substance owned or operated any facility at which such hazardoussubstances were disposed of;

(3)  Any person who by contract, agreement, orotherwise arranged for disposal or treatment, or arranged with a transporterfor transport for disposal or treatment, of hazardous substances owned orpossessed by such person, by any other party or entity, at any facility or onany vessel owned or operated by another party or entity and containing suchhazardous substances; and

(4)  Any person who accepts or accepted any hazardoussubstances for transport to disposal or treatment facilities or sites selectedby such person, from which there is a release, or a threatened release, whichcauses the incurrence of response costs of a hazardous substance;

shall be strictly liable for (A) all costs ofremoval or remedial actions incurred by the State or any other person; to theextent such costs and actions are consistent with this chapter, the statecontingency plan, and any other state rules; (B) damages for injury to,destruction of, or loss of natural resources, including the reasonable costs ofassessing such injury, destruction, or loss resulting from such release; and(C) the costs of any health assessment or health effects study carried outconsistent with this chapter, the state contingency plan, or any other staterules.

(b)  The amounts recoverable in an action underthis section shall include interest on the amounts recoverable under section128D-6(a)(A) through (C).  Such interest shall accrue from the later of (1) thedate payment of a specified amount is demanded in writing, or (2) the date ofthe expenditure concerned.  The rate of interest on the outstanding unpaidbalance of the amounts recoverable under this section shall be the same rate asis specified for interest on investments of the State's fund.

(c)  There shall be no liability undersubsection (a) for a defendant otherwise liable who can establish by apreponderance of the evidence that the release or threat of release of ahazardous substance and the damages resulting therefrom were caused solely by:

(1)  Any unanticipated grave natural disaster or othernatural phenomenon of an exceptional, inevitable, and irresistible character,the effect of which could not have been prevented or avoided by the exercise ofdue care or foresight;

(2)  An act of war;

(3)  An act or omission of a third party other than anemployee or agent of the defendant, or than one whose act or omission occurs inconnection with a contractual relationship, existing directly or indirectly,with the defendant, if the defendant establishes by a preponderance of theevidence that the defendant exercised due care with respect to the hazardoussubstance concerned, taking into consideration the characteristics of suchhazardous substance, in light of all relevant facts and circumstances; and thedefendant took precautions against foreseeable acts or omissions of any suchthird party and the consequences that could foreseeably result from such actsor omissions; or

(4)  Any combination of the foregoing paragraphs.

(d)  A defendant may also avoid liability undersubsection (a) where the defendant is able to establish that the real propertyon which the facility concerned is located was acquired by the defendant afterthe disposal or placement of the hazardous substance on, in, or at thefacility.  In addition to establishing the foregoing, the defendant shallestablish that the defendant has satisfied the requirements of section128D-6(c)(3) and one or more of the following circumstances described inparagraphs (1), (2), (3), (4), or (5) is also established by the defendant by apreponderance of the evidence:

(1)  At the time the defendant acquired the facility,the defendant did not know and had no reason to know that any hazardous substancewhich is the subject of the release or threatened release was disposed on, in,or at the facility;

(2)  The defendant is a government entity thatacquired the facility by escheat, through any other involuntary transfer oracquisition, or through the exercise of eminent domain authority by purchase orcondemnation;

(3)  The defendant acquired the facility byinheritance or bequest;

(4)  At the time the defendant acquired the facility,the defendant met the definition of "bona fide prospective purchaser";or

(5)  The defendant was a contiguous property owner, asdescribed in subsection (k).

To establish that the defendant had no reasonto know, as provided in paragraph (1), the defendant shall have undertaken, atthe time of acquisition, all appropriate inquiry into the previous ownershipand uses of the property consistent with good commercial or customary practicein an effort to minimize liability.  For purposes of the preceding sentence,the court shall take into account any specialized knowledge or experience onthe part of the defendant, the relationship of the purchase price to the valueof the property if uncontaminated, commonly known or reasonably ascertainableinformation about the property, the obviousness of the presence or likelypresence of contamination at the property, and the ability to detect suchcontamination by appropriate inspection.

Nothing in this subsection or in section128D-6(c)(3) shall diminish the liability of any previous owner or operator ofsuch facility who would otherwise be liable under this chapter. Notwithstanding this definition, if the defendant obtained actual knowledge ofthe release or threatened release of a hazardous substance at such facilitywhen the defendant owned the real property and then subsequently transferredownership of the property to another person without disclosing such knowledge,the defendant shall be treated as liable under section 128D-6(a)(1) and nodefense under section 128D-6(c)(3) shall be available to the defendant.

Nothing in this subsection shall affect theliability under this chapter of a defendant who, by any act or omission, causedor contributed to the release or threatened release of a hazardous substancewhich is the subject of the action relating to the facility.

(e)  No person shall be liable under thischapter or otherwise under the laws of the State or any of the counties,including the common law, to any government or private parties for costs,damages, or penalties as a result of actions taken or omitted in the course ofrendering care, assistance, or advice in compliance with this chapter, theNational Contingency Plan, or at the direction of a federal or state on-scenecoordinator, with respect to an incident creating a danger to public health orwelfare or the environment as a result of any release of a hazardous substanceor pollutant or contaminant or the threat thereof.  This subsection shall notpreclude liability for costs, damages, or penalties as the result of grossnegligence or intentional misconduct on the part of such person.

(f)  No county or local government shall beliable under this chapter for costs or damages as a result of actions taken inresponse to an emergency created by the release or threatened release of ahazardous substance or pollutant or contaminant generated by or from a facilityowned by another person.  This subsection shall not preclude liability forcosts or damages as a result of gross negligence or intentional misconduct bythe county or local government.

(g)  No indemnification, hold harmless, orsimilar agreement or conveyances shall be effective to transfer from the owneror operator of any vessel or facility or from any person who may be liable fora release or threat of release under this section, to any other person, theliability imposed under this section.  Nothing in this subsection shall bar anyagreement to insure, hold harmless, or indemnify a party to such agreement forany liability under this section.  Nothing in this chapter shall bar a cause ofaction that an owner or operator or any person subject to liability under thissection, or a guarantor, has or would have, by reason of subrogation orotherwise against any person.

(h)  In the case of an injury to, destructionof, or loss of natural resources under section 128D-6(a)(4)(B), liability shallbe solely to the State for natural resources within the State or belonging to,managed by, controlled by, or appertaining to the State.  The natural resourcetrustee for the State shall act on behalf of the public as trustee of suchnatural resources to recover for such damages.  Sums recovered by the naturalresource trustee under section 128D-6(a)(4)(B) shall not be limited by the sumswhich can be used to restore or replace such resources.  Any damages recoveredby the state attorney general for damages to natural resources shall bedeposited in the fund and credited to a special account for the purposesprovided above.

(i)  Provided that no liability shall beimposed under this chapter, where the party sought to be charged has demonstratedthat the damages to natural resources complained of were specificallyidentified as an irreversible and irretrievable commitment of natural resourcesin an environmental impact statement, or other comparable environmentalanalysis, and the decision to grant a permit or license authorizes suchcommitment of natural resources, and the facility or project was otherwiseoperating within the terms of its permit or license.  There shall be no doublerecovery under this chapter for natural resource damages, including the costsof damage assessment or restoration, rehabilitation, or acquisition for thesame release and natural resources.  Notwithstanding any other provision ofthis chapter, there shall be no recovery under this chapter for natural resourcedamages where such damages have occurred wholly before July 1, 1990.

(j)  No person other than a government entitymay recover costs or damages under this chapter arising from a release whichoccurred before July 1, 1990.

(k)  Contiguous properties shall be treated asstated in this subsection, except as specifically noted:

(1)  A person shall not be considered to be an owneror operator under the following conditions:

(A)  In general, a person who owns realproperty that is contiguous to or otherwise similarly situated with respect to,and that is or may be contaminated by a release or threatened release of ahazardous substance from, real property that is not owned by that person shallnot be considered to be an owner or operator of a vessel or facility undersection 128D-6(a) solely by reason of the contamination if:

(i)  The person did not cause, contribute to, orconsent to the release or threatened release;

(ii)  The person is not potentially liable, oraffiliated with any other person who is potentially liable, for response costsat a facility through any direct or indirect familial relationship or anycontractual, corporate, or financial relationship (other than a contractual,corporate, or financial relationship that is created by a contract for the saleof goods or services); or the result of a reorganization of a business entitythat was potentially liable;

(iii)  The person takes reasonable steps to stopany continuing release; prevent any threatened future release; and prevent orlimit human, environmental, or natural resource exposure to any hazardoussubstance released on or from property owned by that person;

(iv)  The person provides full cooperation,assistance, and access to persons who are authorized to conduct response actionsor natural resource restoration at the vessel or facility from which there hasbeen a release or threatened release (including the cooperation and accessnecessary for the installation, integrity, operation, and maintenance of anycomplete or partial response action or natural resource restoration at thevessel or facility);

(v)  The person is in compliance with any landuse restrictions established or relied on in connection with the responseaction at the facility, and the person does not impede the effectiveness orintegrity of any institutional control employed in connection with a responseaction;

(vi)  The person complies with any request forinformation or administrative subpoena issued by the President of the UnitedStates under 42 United States Code chapter 103, by the director under chapter128D, or issued by any state or federal court;

(vii)  The person provides all legally requirednotices with respect to the discovery or release of any hazardous substances atthe facility; and

(viii)  At the time at which the person acquiredthe property, the person conducted all appropriate inquiry within the meaningof 42 United States Code section 9601(35)(B) with respect to the property, andthe person did not know or have reason to know that the property was or couldbe contaminated by a release or threatened release of one or more hazardoussubstances from other real property not owned or operated by the person;

(B)  To qualify as a person described insubparagraph (A), a person shall establish by a preponderance of the evidencethat the conditions in clauses (i) through (viii) of subparagraph (A) have beenmet;

(C)  Any person who does not qualify as aperson described in this paragraph because the person had, or had reason to have, knowledge specified in subparagraph (A)(viii) at the time of acquisition of thereal property may qualify as a bona fide prospective purchaser as defined undersection 128D-1, if the person is otherwise described in that section;

(D)  With respect to a hazardous substance fromone or more sources that are not on the property of a person that is acontiguous property owner that enters ground water beneath the property of theperson solely as a result of subsurface migration in an aquifer, subparagraph(A)(iii) shall not require the person to conduct ground water investigations orto install ground water remediation systems, except as the director may deemnecessary or in accordance with the policy of the Environmental ProtectionAgency concerning owners of property containing contaminated aquifers, datedMay 24, 1995;

(2)  With respect to a person described in thissubsection, nothing in this subsection:

(A)  Limits any defense to liability that maybe available to the person under any other provision of law; or

(B)  Imposes liability on the person that isnot otherwise imposed by section 128D-6(a);

(3)  The director may:

(A)  Issue an assurance that no enforcementaction under chapter 128D shall be initiated against a person described inparagraph (1); and

(B)  Grant a person described in paragraph (1)protection against a cost recovery or contribution action under section 128D-5.[L 1988, c 148, pt of §2; am L 1990, c 298, pt of §18; am L 1991, c 280, §7; amL 1993, c 324, §2; am L 2009, c 125, §3]