§ 23-19.1-18.1 - Determination of restoration costs – Judgment – Other relief not precluded.
SECTION 23-19.1-18.1
§ 23-19.1-18.1 Determination ofrestoration costs – Judgment – Other relief not precluded. – (a) In any case where the court is of the opinion that the sentence shouldconsist of or include the amount of the cost of restoring to its original statethe area where hazardous wastes were stored, treated, or disposed of inviolation of the provisions of this chapter, the court shall order a hearing todetermine the amount of the cost of the restoration. For the purposes of thissection, the "original state of the area" means the reasonably ascertainablecondition of the property immediately prior to the unlawful storage, treatment,or disposal, or, if impracticable to determine the condition, then it shall bethe reasonable environmentally sound condition of the property. The order mustbe filed with the clerk of the court and must specify a date for the hearingnot less than ten (10) days after the filing of the order.
(b) Upon receipt of the order, the clerk of the court mustsend a notice of the hearing to the defendant, the defendant's legal counsel,and the attorney general. The notice must specify the time and place of thehearing and the fact that the purpose of the hearing is to determine the amountof the cost of restoring to its original state the area where hazardous wasteswere stored, treated, or disposed unlawfully.
(c) When the defendant appears for the hearing, the courtmust ask the defendant whether he or she wishes to make any statement or offerany evidence with respect to the amount of the cost of restoring to itsoriginal state the area where hazardous wastes were stored, treated, ordisposed unlawfully.
(d) At any hearing held pursuant to this section, the burdenof proof rests upon the state, which shall be represented by the attorneygeneral. A finding as to the amount of the cost of restoring to its originalstate the area where hazardous wastes were stored, treated, or disposedunlawfully must be based upon a preponderance of the evidence. The defendantshall be permitted to rebut any evidence offered by the state.
(e) In all cases, the court shall enter its findings andjudgment upon the record at the conclusion of the hearing.
(f) The judgment may require the defendant to pay an amountfor the restoration of the property or to perform duties of restoration orboth. Where the cost of restoration cannot be wholly determined by theevidence, the court may order the defendant to pay an amount that reasonablyapproximates the total cost of restoration or may require the defendant tofinance the restoration without a determination as to amount.
(2) When the court orders the defendant to pay an amount forthe restoration of the property, the amount shall be paid to the department ofenvironmental management and shall be used exclusively by the department ofenvironmental management for the restoration of the property.
(3) Where the court orders the defendant to perform duties ofrestoration to the property, the court may authorize the department ofenvironmental management to supervise and report to it on the conduct of theduties.
(4) In order to most likely assure the restoration of theproperty, where there are two or more defendants, the court may apportion thecosts or assign the performance of duties of restoration, or both, between oramong the defendants as the interests of justice may appear to the court.
(5) Defendants may be ordered by the court to reimburse thestate for any administrative costs incurred by the state or its agents inconjunction with restoration work.
(g) The provisions of this section shall not preclude thestate or attorney general or the department of environmental management fromseeking any other relief authorized by other statute or common law.