19-6-318 - Remedial action liability -- Liability agreements.
19-6-318. Remedial action liability -- Liability agreements.
(1) (a) In apportioning responsibility for the remedial action in any administrativeproceeding or judicial action under Sections 19-6-317 and 19-6-319, the following standardsapply:
(i) liability shall be apportioned in proportion to each responsible party's respectivecontribution to the release;
(ii) the apportionment of liability shall be based on equitable factors, including thequantity, mobility, persistence, and toxicity of hazardous substances 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 (1)(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 (1)(b) or (c) or a person whois not considered to have contributed to a release under Subsection (1)(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 thedirector shall apportion liability to the party solely based on available evidence and the standardsof Subsection (1)(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 remedialaction costs.
(2) The failure of the executive director to name all responsible parties is not a defense toan action under this section.
(3) (a) Any party who incurs costs under Sections 19-6-317 through 19-6-320 in excessof his liability may seek contribution from any other party who is or may be liable under Sections19-6-317 through 19-6-320 for the excess costs in district court.
(b) In resolving claims made under Subsection (3)(a), the court shall allocate costs usingthe standards set forth in Subsection (1).
(4) (a) A party who has resolved his liability in an agreement under Sections 19-6-317through 19-6-320 is not liable for claims for contribution regarding matters addressed in thesettlement.
(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 (4)(b) reduces the potential liability ofother responsible parties by the amount of the agreement.
(5) (a) If the executive director obtains less than complete relief from a party who hasresolved his liability in an agreement under Sections 19-6-317 through 19-6-320, 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 (1) apply.
(c) A party who resolved his liability for some or all of the costs in an agreement underSections 19-6-317 through 19-6-320 may seek contribution from any person who is not party toan agreement under Sections 19-6-317 through 19-6-320.
(6) (a) An agreement made under Sections 19-6-317 through 19-6-320 may provide thatthe executive director will pay for costs of actions that the parties have agreed to perform, butwhich the executive director has agreed to finance, under the agreement.
(b) If the executive director makes payments, he may recover the amount using theauthority of Sections 19-6-317 through 19-6-320 or any other applicable authority.
Amended by Chapter 324, 2010 General Session