Arizona Laws 49-287. Enforcement; use of fund; inspections and information gathering; civil penalties
A. Except as provided in section 49-286, the provisions of this article are independent of and are not subject to the enforcement remedies of article 4 of this chapter and section 49-264.
Terms Used In Arizona Laws 49-287
- Action: includes any matter or proceeding in a court, civil or criminal. See Arizona Laws 1-215
- CERCLA: means the comprehensive environmental response, compensation, and liability act of 1980, as amended (P. See Arizona Laws 49-201
- Clean water act: means the federal water pollution control act amendments of 1972 (P. See Arizona Laws 49-201
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- Counterclaim: A claim that a defendant makes against a plaintiff.
- Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
- Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
- Director: means the director of environmental quality or the director's designee. See Arizona Laws 49-201
- Discovery: Lawyers' examination, before trial, of facts and documents in possession of the opponents to help the lawyers prepare for trial.
- Environment: means WOTUS, any other surface waters, groundwater, drinking water supply, land surface or subsurface strata or ambient air, within or bordering on this state. See Arizona Laws 49-201
- Facility: means any land, building, installation, structure, equipment, device, conveyance, area, source, activity or practice. See Arizona Laws 49-281
- Fund: means the water quality assurance revolving fund established by section 49-282. See Arizona Laws 49-281
- Hazardous substance: means :
(a) Any substance designated pursuant to sections 311(b)(2)(A) and 307(a) of the clean water act. See Arizona Laws 49-201
- Injunction: An order of the court prohibiting (or compelling) the performance of a specific act to prevent irreparable damage or injury.
- Nonrecoverable costs: means any costs incurred by the director after June 30, 1997:
(a) That consist of salaries and benefits paid to state employees, including direct and indirect costs, except as specifically provided in Section 49-282. See Arizona Laws 49-281
- Pollutant: means fluids, contaminants, toxic wastes, toxic pollutants, dredged spoil, solid waste, substances and chemicals, pesticides, herbicides, fertilizers and other agricultural chemicals, incinerator residue, sewage, garbage, sewage sludge, munitions, petroleum products, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and mining, industrial, municipal and agricultural wastes or any other liquid, solid, gaseous or hazardous substances. See Arizona Laws 49-201
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
- Release: means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment but excludes:
(a) Any release that results in exposure to persons solely within a workplace, with respect to a claim that such persons may assert against the employer of such persons. See Arizona Laws 49-281
- Remedial actions: means those actions that are reasonable, necessary, cost-effective and technically feasible in the event of the release or threat of release of hazardous substances into the environment, such actions as may be necessary to investigate, monitor, assess and evaluate such release or threat of release, actions of remediation, removal or disposal of hazardous substances or taking such other actions as may be necessary to prevent, minimize or mitigate damage to the public health or welfare or to the environment that may otherwise result from a release or threat of release of a hazardous substance. See Arizona Laws 49-281
- Safe drinking water act: means the federal safe drinking water act, as amended (P. See Arizona Laws 49-201
- Settlement: Parties to a lawsuit resolve their difference without having a trial. Settlements often involve the payment of compensation by one party in satisfaction of the other party's claims.
- Site: means the geographical areal extent of contamination. See Arizona Laws 49-281
- Temporary restraining order: Prohibits a person from an action that is likely to cause irreparable harm. This differs from an injunction in that it may be granted immediately, without notice to the opposing party, and without a hearing. It is intended to last only until a hearing can be held.
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
- Wilfully: means , with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that the person's conduct is of that nature or that the circumstance exists. See Arizona Laws 1-215
B. This section does not preclude the director from initiating actions pursuant to section 505 of the clean water act and section 1449 of the safe drinking water act. The director shall not initiate any action under section 107(a) or 107(f) of CERCLA or section 7002 of the resource conservation and recovery act to the extent that the action is inconsistent with this article, except under any of the following circumstances:
1. In an action initiated by the director filing a complaint contemporaneously with a consent decree or any other agreement to provide contribution protection or a covenant not to sue under CERCLA.
2. In an action involving a facility at a site listed on the national priorities list on April 29, 1997. In an action involving a facility at a site on the national priorities list that is listed after April 29, 1997 the director may initiate an action if the facility is not being remediated pursuant to this article or any other provision of this title.
3. In a counterclaim action when the state is sued under section 107 (a) of CERCLA, but only against the party asserting the claim. For purposes of this paragraph, "state" does not include political subdivisions of the state.
C. The director may initiate an action to recover natural resource damages under section 107(f) of CERCLA but may recover only the proportionate share of these damages from a defendant who is also a responsible party under this article.
D. Judicial actions initiated pursuant to this section have precedence over all other civil proceedings.
E. If there is a release or the threat of a release of a hazardous substance which may present an imminent and substantial danger to the public health or welfare or the environment:
1. The director may take such remedial action as he deems necessary to protect the public health or welfare or the environment.
2. The attorney general may request a temporary restraining order, a preliminary injunction, a permanent injunction or any other relief necessary to protect the public health or welfare or the environment from the release.
3. The director may issue an order requiring abatement of such release or threat of a release and appropriate remedial action if the action is consistent with the criteria listed in and rules adopted pursuant to Section 49-282.06 and before taking such action the director provides written notice to the responsible party, if known, and the owner of the real property where the facility is located if the owner is not a responsible party. The notice shall include:
(a) The reasons for the remedial action.
(b) A reasonable time for beginning and completing the actions, taking into account the urgency of the actions for protecting public health or welfare or the environment.
(c) The steps taken to comply with the criteria listed in and rules adopted pursuant to Section 49-282.06.
(d) The intention of this state or a political subdivision to take remedial action and the possible liability of the responsible party for the costs of such actions if that action is not taken by the responsible party.
4. The director may take action pursuant to sections 49-287.01 through 49-287.07, or enter into a settlement under section 49-292 or any other applicable provision of this article. Actions taken by the director pursuant to sections 49-287.01 through 49-287.07 may substantially affect the rights and obligations of persons who may be liable under this article for the release or threatened release of a hazardous substance at a site or portion of a site for purposes of determining insurance coverage. Any action taken by the director pursuant to sections 49-287.01 through 49-287.07 is not appealable unless otherwise provided in this article.
F. A remedial action order issued under subsection E of this section becomes final and enforceable in the superior court for purposes of subsections I and J of this section unless, within thirty days after the receipt of the order, the recipient moves to quash or modify the order in the superior court. If the motion to quash or modify the order raises issues of fact, the recipient of the order and the state are entitled to conduct expedited discovery on application to the court and are entitled to a priority for trial. A party who undertakes the actions prescribed in a remedial action order issued pursuant to this section may obtain a court order to recover from the fund the reasonable and necessary costs of the actions if the party demonstrates to the court that the actions required by the order were arbitrary and capricious or otherwise were not in accordance with law, that the party is not a responsible party as prescribed by section 49-283 or for the amount of costs incurred that exceeded the party’s share of liability pursuant to section 49-285.
G. If there is a release or the threat of a release of any pollutant which may present an imminent and substantial danger to the public health or welfare, the director may take such remedial action as he deems necessary to protect the public health or welfare or the environment.
H. Any remedial action costs, other than nonrecoverable costs, incurred by the director pursuant to the procedures in subsection E of this section may be recovered in a civil action brought by the attorney general against any responsible party pursuant to Section 49-287.07.
I. A responsible party who wilfully violates or fails or refuses to comply with any order of the director under subsection E, paragraph 3 of this section may, in an action brought in the superior court in the appropriate county to enforce such order, be assessed a civil penalty of not more than five thousand dollars for each day in which the violation occurs or the failure to comply continues. All civil penalties assessed pursuant to this subsection shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.
J. A responsible party who fails, without sufficient cause, to properly provide remedial action on order of the director pursuant to subsection E, paragraph 3 of this section may be liable to this state for punitive damages in an amount up to three times the amount of any costs incurred by the director as a result of the failure to take proper action. The attorney general may commence a civil action against the responsible party to recover the remedial action costs and the punitive damages. Any punitive damages received by this state pursuant to this subsection shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund. The director’s failure to comply with the requirements of Section 49-282.06 or the director’s order to take a remedial action that causes the responsible party to incur costs that exceed the responsible party’s proportionate share of liability pursuant to section 49-285 is a defense to an action for punitive damages and the amount of the punitive damages requested may be reduced, in full or in part.
K. If the director may act pursuant to this section, he may undertake such investigations, monitoring, surveys, testing and other information gathering as he may deem necessary or appropriate to identify the existence and extent of the release or threat of a release, the source and nature of the hazardous substances and the extent of danger to the public health or welfare or to the environment. In addition, the director may undertake such planning, legal, fiscal, economic, engineering, architectural and other studies or investigations as he may deem necessary or appropriate to plan and direct remedial actions, to recover the costs of remedial actions, other than nonrecoverable costs, and to enforce this article.