19-6-310 - Apportionment of liability -- Liability agreements -- Legal remedies.
19-6-310. Apportionment of liability -- Liability agreements -- Legal remedies.
(1) The executive director may recover only the proportionate share of costs of anyinvestigation and abatement performed under Section 19-6-309 and this section from eachresponsible party, as provided in this section.
(2) (a) In apportioning responsibility for the investigation and abatement, or liability forthe costs of the investigation and abatement, in any administrative proceeding or judicial action,the following standards apply:
(i) liability shall be apportioned in proportion to each responsible party's respective contribution to the release; and
(ii) the apportionment of liability shall be based on equitable factors, including thequantity, mobility, persistence, and toxicity of hazardous materials contributed by a responsibleparty, and the comparative behavior of a responsible party in contributing to the release, relativeto other responsible parties.
(b) Liability may not be apportioned against a current or previous owner or operator whoacquired or became the operator of the facility before March 18, 1985, who may otherwise be aresponsible party but who did not know that any hazardous material which is the subject of arelease was on, in, or at the facility prior to acquisition or operation of the facility, and the releaseis not the result of an act or omission of the current or previous owner or operator.
(c) Liability may not be apportioned against a current or previous owner or operator whoacquired or became the operator of the facility on or after March 18, 1985, who may otherwise bea responsible party but who did not know and had no reason to know, after having taken allappropriate inquiry into the previous ownership and uses of the facility, consistent with goodcommercial or customary practice at the time of the purchase, that any hazardous material whichis the subject of a release was on, in, or at the facility prior to acquisition or operation of thefacility, and the release is not the result of an act or omission of the current or previous owner oroperator.
(d) A responsible party who is not exempt under Subsection (2)(b) or (c) may beconsidered to have contributed to the release and may be liable for a proportionate share of costsas provided under this section either by affirmatively causing a release or by failing to take actionto prevent or abate a release which has originated at or from the facility. A person whoseproperty is contaminated by migration from an offsite release is not considered to havecontributed to the release unless the person takes actions which exacerbate the release.
(e) A responsible party who meets the criteria in Subsection (2)(b) or (c) or a person whois not considered to have contributed to a release under Subsection (2)(d) is not considered tohave contributed to a release solely by failing to take abatement or remedial action pursuant to anadministrative order.
(f) (i) The burden of proving proportionate contribution shall be borne by eachresponsible party.
(ii) If a responsible party does not prove his proportionate contribution, the court or theexecutive director shall apportion liability to the party based solely on available evidence and thestandards of Subsection (2)(a).
(iii) The ability of a responsible party to pay is not a factor in the apportionment ofliability.
(g) The court may not impose joint and several liability.
(h) Each responsible party is strictly liable solely for his proportionate share of
investigation and abatement costs.
(3) The failure of the executive director to name all responsible parties is not a defense toan action under this section.
(4) (a) Any party who incurs costs under Section 19-6-309 and this section in excess ofhis liability may seek contribution from any other party who is or may be liable under Section19-6-309 and this section for the excess costs in the district court.
(b) In resolving claims made under Subsection (4)(a), the court shall allocate costs usingthe standards set forth in Subsection (2).
(5) (a) A party who has resolved his liability in an agreement under Section 19-6-309 andthis section is not liable for claims for contribution regarding matters addressed in the settlement.
(b) (i) An agreement does not discharge any of the liability of responsible parties who arenot parties to the agreement, unless the terms of the agreement provide otherwise.
(ii) An agreement made under this subsection reduces the potential liability of otherresponsible parties by the amount of the agreement.
(6) (a) If the executive director obtains less than complete relief from a party who hasresolved his liability in an agreement under Section 19-6-309 and this section, the executivedirector may bring an action against any party who has not resolved his liability in an agreement.
(b) In apportioning liability, the standards of Subsection (2) apply.
(c) A party who resolved his liability for some or all of the costs in an agreement underSection 19-6-309 and this section may seek contribution from any person who is not party to anagreement under Section 19-6-309 and this section.
(7) (a) An agreement made under Section 19-6-309 and this section may provide that theexecutive director will pay for costs of actions that the parties have agreed to perform, but whichthe executive director has agreed to finance, under the agreement.
(b) If the executive director makes payments from the fund, he may recover the amountpaid using the authority of Section 19-6-309 and this section or any other applicable authority.
(8) (a) The executive director may not recover costs of any investigation performedunder the authority of Subsection 19-6-309(2)(b) if the investigation does not confirm that arelease presenting a direct and immediate threat to public health has occurred.
(b) This subsection takes precedence over any conflicting provision of this sectionregarding cost recovery.
Amended by Chapter 356, 2009 General Session