§1367. Liability; recovery by the State for abatement, clean-up or mitigation costs and for damages
Each responsible party is jointly and severally liable for all costs incurred by the State resulting from hazardous substances at the site or from the acts or omissions of a responsible party with respect to those hazardous substances and each responsible party is jointly and severally liable for all costs incurred by the State for the abatement, cleanup or mitigation of the threats or hazards posed or potentially posed by an uncontrolled site, including, without limitation, all of the State's costs of acquiring property. Each responsible party also is jointly and severally liable for damages for injury to, destruction of, loss of or loss of use of natural resources of the State, the reasonable costs of assessing natural resources damages and the costs of preparing and implementing a natural resources restoration plan. The commissioner shall demand reimbursement of costs, including interest, and payment of damages to be recovered under this section. The interest rate charged may not exceed the prime rate of interest plus 4%. Interest must be computed beginning 60 days from the date of a payment demand by the commissioner. Payment must be made promptly by the responsible party or parties upon whom the demand is made. Requests for reimbursement to the Uncontrolled Sites Fund, if not paid within 30 days of demand, may be turned over to the Attorney General for collection or may be submitted to a collection agency or agent or an attorney retained by the department with the approval of the Attorney General pursuant to Title 5, section 191. The Attorney General or an attorney retained by the department may file suit in the Superior Court and, in addition to relief provided by other law, may seek punitive damages. Notwithstanding the time limits stated in this paragraph, neither a demand nor other recovery efforts against one responsible party may relieve any other responsible party of liability.
[PL 2023, c. 510, §2 (AMD).]
In any suit filed under this section, the State need not prove negligence in any form or matter by a defendant. The State need only prove that a defendant is a responsible party, as defined in section 1362, and the site poses or posed or potentially poses or posed a threat or hazard to the health, safety or welfare of any citizen of the State or the environment of the State, to which the acts or omissions of the defendant are or were causally related.
[PL 1983, c. 569, §1 (NEW).]
A person who would otherwise be a responsible party is not subject to cost recovery by the State for the State's abatement, clean‑up or mitigation costs or for damages under this section, if the person can establish by a preponderance of the evidence that threats or hazards posed or potentially posed by an uncontrolled site, for which threats or hazards the person would otherwise be responsible, were caused solely by:
[PL 2023, c. 510, §2 (AMD).]
1.
Act of God.
An act of God;
[PL 1983, c. 569, §1 (NEW).]
2.
Act of war.
An act of war;
[PL 1983, c. 569, §1 (NEW).]
3.
Act or omission.
An act or omission of a 3rd party who is not that person's employee or agent. A person seeking relief from liability for the acts or omissions of a 3rd party shall also demonstrate by a preponderance of the evidence that that person exercised due care with respect to the hazardous substance and uncontrolled site concerned, taking into consideration the characteristics of that substance and site, in light of all relevant facts and circumstances and that that person took precautions against foreseeable acts or omissions of any such 3rd party and the consequences that could foreseeably result from such acts or omissions.
A.
For purposes of this subsection, a person may demonstrate the exercise of due care with respect to any uncontrolled site that that person has acquired after hazardous substances were located on that uncontrolled site, if that person shows that at the time that person acquired the uncontrolled site the person did not know and had no reason to know that any hazardous substance that is the subject of the release or threatened release was disposed on, in or at the uncontrolled site.
[PL 1991, c. 81 (NEW).]
B.
To establish that a person meets the criteria of paragraph A, a person must 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 this paragraph, all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice consists of:
(1)
For a property acquisition after October 31, 2006, conducting all appropriate inquiries in accordance with the United States Environmental Protection Agency's All Appropriate Inquiries Rule, 40 Code of Federal Regulations, Part 312 (2023); and
(2)
For a property acquisition after December 31, 1993 and before November 1, 2006, conducting a Phase I Environmental Site Assessment in accordance with the ASTM E1527‑21 standard in effect at the time of purchase.
For a property acquisition prior to January 1, 1994, the State and the court shall take into account any specialized knowledge or experience on the part of the person, 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 of the property and the ability to detect that contamination by appropriate inspection.
[PL 2023, c. 510, §2 (AMD).]
C.
The 3rd‑party defense provided by this subsection is not available to defend against any claim, administrative proceeding or civil action pursuant to section 1365 or any other provision of this chapter; or
[PL 2023, c. 510, §2 (NEW).]
[PL 2023, c. 510, §2 (AMD).]
4.
Combination.
Any combination of the foregoing subsections.
[PL 1983, c. 569, §1 (NEW).]
Funds recovered under this section must be deposited into the Uncontrolled Sites Fund and must be used by the department to carry out the purposes of this chapter.
[PL 2023, c. 510, §2 (AMD).]
SECTION HISTORY
PL 1983, c. 569, §1 (NEW). PL 1987, c. 192, §31 (AMD). PL 1991, c. 81 (AMD). PL 1991, c. 312, §3 (AMD). PL 2007, c. 655, §16 (AMD). PL 2009, c. 121, §16 (AMD). RR 2021, c. 2, Pt. B, §287 (COR). PL 2023, c. 510, §2 (AMD).