§128D-6  Liability.  (a) 

Notwithstanding any other provision or rule of law, and subject only to the

defenses set forth in subsection (c):

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

vessel;

     (2)  Any person who at the time of disposal of any

hazardous substance owned or operated any facility at which such hazardous

substances were disposed of;

     (3)  Any person who by contract, agreement, or

otherwise arranged for disposal or treatment, or arranged with a transporter

for transport for disposal or treatment, of hazardous substances owned or

possessed by such person, by any other party or entity, at any facility or on

any vessel owned or operated by another party or entity and containing such

hazardous substances; and

     (4)  Any person who accepts or accepted any hazardous

substances for transport to disposal or treatment facilities or sites selected

by such person, from which there is a release, or a threatened release, which

causes the incurrence of response costs of a hazardous substance;

shall be strictly liable for (A) all costs of

removal or remedial actions incurred by the State or any other person; to the

extent such costs and actions are consistent with this chapter, the state

contingency plan, and any other state rules; (B) damages for injury to,

destruction of, or loss of natural resources, including the reasonable costs of

assessing such injury, destruction, or loss resulting from such release; and

(C) the costs of any health assessment or health effects study carried out

consistent with this chapter, the state contingency plan, or any other state

rules.

     (b)  The amounts recoverable in an action under

this section shall include interest on the amounts recoverable under section

128D-6(a)(A) through (C).  Such interest shall accrue from the later of (1) the

date payment of a specified amount is demanded in writing, or (2) the date of

the expenditure concerned.  The rate of interest on the outstanding unpaid

balance of the amounts recoverable under this section shall be the same rate as

is specified for interest on investments of the State's fund.

     (c)  There shall be no liability under

subsection (a) for a defendant otherwise liable who can establish by a

preponderance of the evidence that the release or threat of release of a

hazardous substance and the damages resulting therefrom were caused solely by:

     (1)  Any unanticipated grave natural disaster or other

natural phenomenon of an exceptional, inevitable, and irresistible character,

the effect of which could not have been prevented or avoided by the exercise of

due care or foresight;

     (2)  An act of war;

     (3)  An act or omission of a third party other than an

employee or agent of the defendant, or than one whose act or omission occurs in

connection with a contractual relationship, existing directly or indirectly,

with the defendant, if the defendant establishes by a preponderance of the

evidence that the defendant exercised due care with respect to the hazardous

substance concerned, taking into consideration the characteristics of such

hazardous substance, in light of all relevant facts and circumstances; and the

defendant took precautions against foreseeable acts or omissions of any such

third party and the consequences that could foreseeably result from such acts

or omissions; or

     (d) A defendant may also avoid liability under

subsection (a) where the defendant is able to establish that the real property

on which the facility concerned is located was acquired by the defendant after

the disposal or placement of the hazardous substance on, in, or at the

facility.  In addition to establishing the foregoing, the defendant shall

establish that the defendant has satisfied the requirements of section

128D-6(c)(3) and one or more of the following circumstances described in

paragraphs (1), (2), (3), (4), or (5) is also established by the defendant by a

preponderance 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

substance which is the subject of the release or threatened release was

disposed on, in, or at the facility;

     (2)  The defendant is a government entity that

acquired the facility by escheat, through any other involuntary transfer or

acquisition, or through the exercise of eminent domain authority by purchase or

condemnation;

     (3)  The defendant acquired the facility by

inheritance 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, as

described in subsection (k).

     To establish that the defendant had no reason

to know, as provided in paragraph (1), the defendant shall have undertaken, at

the time of acquisition, all appropriate inquiry into the previous ownership

and uses of the property consistent with good commercial or customary practice

in an effort to minimize liability.  For purposes of the preceding sentence,

the environmental court shall take into account any specialized knowledge or

experience on the part of the defendant, the relationship of the purchase price

to the value of the property if uncontaminated, commonly known or reasonably

ascertainable information about the property, the obviousness of the presence

or likely presence of contamination at the property, and the ability to detect

such contamination by appropriate inspection.

     Nothing in this subsection or in section

128D-6(c)(3) shall diminish the liability of any previous owner or operator of

such facility who would otherwise be liable under this chapter.  Notwithstanding

this definition, if the defendant obtained actual knowledge of the release or

threatened release of a hazardous substance at such facility when the defendant

owned the real property and then subsequently transferred ownership of the

property to another person without disclosing such knowledge, the defendant

shall be treated as liable under section 128D-6(a)(1) and no defense under

section 128D-6(c)(3) shall be available to the defendant.

     Nothing in this subsection shall affect the

liability under this chapter of a defendant who, by any act or omission, caused

or contributed to the release or threatened release of a hazardous substance

which is the subject of the action relating to the facility.

     (e)  No person shall be liable under this

chapter 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 of

rendering care, assistance, or advice in compliance with this chapter, the

National Contingency Plan, or at the direction of a federal or state on-scene

coordinator, with respect to an incident creating a danger to public health or

welfare or the environment as a result of any release of a hazardous substance

or pollutant or contaminant or the threat thereof.  This subsection shall not

preclude liability for costs, damages, or penalties as the result of gross

negligence or intentional misconduct on the part of such person.

     (f)  No county or local government shall be

liable under this chapter for costs or damages as a result of actions taken in

response to an emergency created by the release or threatened release of a

hazardous substance or pollutant or contaminant generated by or from a facility

owned by another person.  This subsection shall not preclude liability for

costs or damages as a result of gross negligence or intentional misconduct by

the county or local government.

     (g)  No indemnification, hold harmless, or

similar agreement or conveyances shall be effective to transfer from the owner

or operator of any vessel or facility or from any person who may be liable for

a release or threat of release under this section, to any other person, the

liability imposed under this section.  Nothing in this subsection shall bar any

agreement to insure, hold harmless, or indemnify a party to such agreement for

any liability under this section.  Nothing in this chapter shall bar a cause of

action that an owner or operator or any person subject to liability under this

section, or a guarantor, has or would have, by reason of subrogation or

otherwise against any person.

     (h)  In the case of an injury to, destruction

of, or loss of natural resources under section 128D-6(a)(4)(B), liability shall

be solely to the State for natural resources within the State or belonging to,

managed by, controlled by, or appertaining to the State.  The natural resource

trustee for the State shall act on behalf of the public as trustee of such

natural resources to recover for such damages.  Sums recovered by the natural

resource trustee under section 128D-6(a)(4)(B) shall not be limited by the sums

which can be used to restore or replace such resources.  Any damages recovered

by the state attorney general for damages to natural resources shall be

deposited in the fund and credited to a special account for the purposes

provided above.

     (i)  Provided that no liability shall be

imposed under this chapter, where the party sought to be charged has

demonstrated that the damages to natural resources complained of were

specifically identified as an irreversible and irretrievable commitment of

natural resources in an environmental impact statement, or other comparable

environmental analysis, and the decision to grant a permit or license authorizes

such commitment of natural resources, and the facility or project was otherwise

operating within the terms of its permit or license.  There shall be no double

recovery under this chapter for natural resource damages, including the costs

of damage assessment or restoration, rehabilitation, or acquisition for the

same release and natural resources.  Notwithstanding any other provision of

this chapter, there shall be no recovery under this chapter for natural

resource damages where such damages have occurred wholly before July 1, 1990.

     (j)  No person other than a government entity

may recover costs or damages under this chapter arising from a release which

occurred before July 1, 1990.

     (k)  Contiguous properties shall be treated as

stated in this subsection, except as specifically noted:

     (1)  A person shall not be considered to be an owner

or operator under the following conditions:

         (A)  In general, a person who owns real

property 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 a

hazardous substance from, real property that is not owned by that person shall

not be considered to be an owner or operator of a vessel or facility under

section 128D-6(a) solely by reason of the contamination if:

              (i)  The person did not cause, contribute to, or

consent to the release or threatened release;

             (ii)  The person is not potentially liable, or

affiliated with any other person who is potentially liable, for response costs

at a facility through any direct or indirect familial relationship or any

contractual, corporate, or financial relationship (other than a contractual,

corporate, or financial relationship that is created by a contract for the sale

of goods or services); or the result of a reorganization of a business entity

that was potentially liable;

            (iii)  The person takes reasonable steps to stop

any continuing release; prevent any threatened future release; and prevent or

limit human, environmental, or natural resource exposure to any hazardous

substance 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

actions or natural resource restoration at the vessel or facility from which

there has been a release or threatened release (including the cooperation and

access necessary for the installation, integrity, operation, and maintenance of

any complete or partial response action or natural resource restoration at the

vessel or facility);

              (v)  The person is in compliance with any land

use restrictions established or relied on in connection with the response

action at the facility, and the person does not impede the effectiveness or

integrity of any institutional control employed in connection with a response

action;

             (vi)  The person complies with any request for

information or administrative subpoena issued by the President of the United

States under 42 United States Code Chapter 103, by the director under chapter

128D, or issued by any state or federal court;

            (vii)  The person provides all legally required

notices with respect to the discovery or release of any hazardous substances at

the facility; and

           (viii)  At the time at which the person acquired

the property, the person conducted all appropriate inquiry within the meaning

of 42 United States Code section 9601(35)(B) with respect to the property, and

the person did not know or have reason to know that the property was or could

be contaminated by a release or threatened release of one or more hazardous

substances from other real property not owned or operated by the person;

         (B)  To qualify as a person described in

subparagraph (A), a person shall establish by a preponderance of the evidence

that the conditions in clauses (i) through (viii) of subparagraph (A) have been

met;

         (C)  Any person who does not qualify as a

person 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 the real property may qualify as a bona fide prospective

purchaser as defined under section 128D-1, if the person is otherwise

described in that section;

         (D)  With respect to a hazardous substance from

one or more sources that are not on the property of a person that is a

contiguous property owner that enters ground water beneath the property of the

person solely as a result of subsurface migration in an aquifer, subparagraph

(A)(iii) shall not require the person to conduct ground water investigations or

to install ground water remediation systems, except as the director may deem

necessary or in accordance with the policy of the Environmental Protection

Agency concerning owners of property containing contaminated aquifers, dated May

24, 1995;

     (2)  With respect to a person described in this

subsection, nothing in this subsection:

         (A)  Limits any defense to liability that may

be available to the person under any other provision of law; or

         (B)  Imposes liability on the person that is

not otherwise imposed by section 128D-6(a);

     (3)  The director may:

         (A)  Issue an assurance that no enforcement

action under chapter 128D shall be initiated against a person described in

paragraph (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; am

L 1993, c 324, §2; am L 2009, c 125, §3; am L 2014, c 218, §8]

 

Note

 

  The amendment made to subsection (k) by L 2014, c 218, §8 is not included in this section.