49-285. Liability for remedial actions costs; limitation of actions
A. Except as otherwise provided in section 49-283, a person who is a
responsible party shall be strictly and severally liable for such reasonable, necessary
and cost-effective expenditures for remedial actions as are incurred by this state, a
political subdivision of this state or any other person in a manner consistent with the
rules and procedures adopted under section 49-282.06, but not including
nonrecoverable costs. A responsible party may be held liable for remedial action costs
for a release of a hazardous substance even though the conduct that resulted in the
release or the release itself occurred before August 13, 1986.
B. In order to preserve any right to recover remedial action costs from
responsible parties, remedial actions conducted by this state, a political subdivision of
this state or any other person shall when evaluated as a whole be in substantial
compliance with the rules and procedures adopted pursuant to section 49-282.06. The
director's approval of a remedial action that is conducted by a person other than the
state is not required to preserve any right to recover remedial action costs from
potentially responsible parties. Any person other than the state who undertakes a
remedial action may request that the director approve the remedial action as
prescribed by rules adopted pursuant to section 49-282.06 at any time before, during
or after the remedial action. The director's decision shall be in writing and shall
specify the basis of the decision. Any remedial action so approved by the director shall
be deemed to be in substantial compliance with the rules and procedures adopted
pursuant to section 49-282.06. Any person who requests the director's approval of a
remedial action shall reimburse the department for the total reasonable cost to the
department for the review of the remedial action unless the director waives all or a
part of the reimbursement. These monies shall be deposited in the water quality
assurance revolving fund established by section 49-282. Costs that are reimbursed to
the department by a party that obtains the director's approval of remedial actions
pursuant to this subsection constitute remedial action costs that may be recovered
from responsible parties.
C. Any person who is a defendant in an enforcement proceeding brought under
section 49-287 may join in the action any other person who is or may be a responsible
party.
D. Except as prescribed by section 49-283.01, this article does not affect or
modify in any way the obligations or liability of any person, by reason of subrogation
or otherwise, under any other provision of state or federal law, including common law,
for damages, injury or loss resulting from a release of any hazardous substance or for
remedial action costs, except that any person who receives compensation for remedial
action costs pursuant to this article is precluded from recovering compensation for the
same remedial action costs pursuant to any other federal or state law. Any person who
receives compensation for remedial action costs pursuant to any other federal or state
law is precluded from receiving compensation for the same remedial action costs as
provided in this article.
E. In allocating several liability between two or more potentially responsible
parties, the department, an allocator pursuant to section 49-287.06 or a court shall
consider the following to determine each responsible party's allocated shares and the
orphan shares:
1. The amount and concentration of each hazardous substance involved.
2. The degree of toxicity of each hazardous substance involved.
3. The degree of involvement by the responsible parties in the generation,
transportation, treatment, storage or disposal of the hazardous substance.
F. After the allocated shares and the orphan shares are determined pursuant to
subsection E of this section and reduced to writing, the department, an allocator or the
court may consider the following factors to adjust the allocated shares of the
responsible parties, except that any adjustment under this subsection shall not adjust
the amount allocated to orphan shares:
1. The magnitude of the risk to human health or the environment caused by
each hazardous substance involved.
2. The degree of cooperation by the responsible party with federal, state or
local officials to prevent any harm to the public health or the environment.
3. Any other factors deemed relevant by the department, an allocator or the
court in determining the liability of the parties under this section.
G. An action brought by a person other than the state to recover remedial action
costs from a responsible party shall be brought within three years of the completion of
the remedial action or within six years of the initiation of on-site physical
construction activities for the remediation, removal or disposal of hazardous
substances, whichever is earlier.
H. In an action brought for recovery of remedial action costs incurred at a site
not on the registry maintained pursuant to section 49-287.01 or that is brought
pursuant to section 49-287.07, subsection A, paragraph 3, subdivision (a), (b) or (d),
the court shall initially allocate costs among the responsible parties based on the
factors listed in subsection E of this section. To the extent that the allocation results
in costs being allocated to orphan shares, those costs shall be reallocated to the
responsible parties based on such equitable factors as the court deems appropriate,
including:
1. The factors listed in subsection F of this section.
2. Each responsible party's ability to pay.
3. The degree of care exercised by each responsible party with respect to the
hazardous substance of concern and taking into account the characteristics of that
substance.