Arizona Laws 49-285. Liability for remedial actions costs; limitation of actions
A. Except as otherwise provided in section 49-283, a person who is a responsible party shall be strictly and severally liable for such reasonable, necessary and cost-effective expenditures for remedial actions as are incurred by this state, a political subdivision of this state or any other person in a manner consistent with the rules and procedures adopted under Section 49-282.06, but not including nonrecoverable costs. A responsible party may be held liable for remedial action costs for a release of a hazardous substance even though the conduct that resulted in the release or the release itself occurred before August 13, 1986.
Terms Used In Arizona Laws 49-285
- Action: includes any matter or proceeding in a court, civil or criminal. See Arizona Laws 1-215
- Common law: The legal system that originated in England and is now in use in the United States. It is based on judicial decisions rather than legislative action.
- 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.
- Department: means the department of environmental quality. See Arizona Laws 49-201
- Director: means the director of environmental quality or the director's designee. See Arizona Laws 49-201
- 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
- Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
- 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
- including: means not limited to and is not a term of exclusion. See Arizona Laws 1-215
- 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
- Orphan shares: means the shares of the cost of a remedial action that are allocated to an identified person who is determined to be a responsible party and that are not paid or otherwise satisfied by that responsible party due to any of the following:
(a) The party cannot be located or no longer exists. See Arizona Laws 49-281
- Person: means an individual, employee, officer, managing body, trust, firm, joint stock company, consortium, public or private corporation, including a government corporation, partnership, association or state, a political subdivision of this state, a commission, the United States government or any federal facility, interstate body or other entity. See Arizona Laws 49-201
- 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
- Site: means the geographical areal extent of contamination. See Arizona Laws 49-281
- Writing: includes printing. See Arizona Laws 1-215
B. In order to preserve any right to recover remedial action costs from responsible parties, remedial actions conducted by this state, a political subdivision of this state or any other person shall when evaluated as a whole be in substantial compliance with the rules and procedures adopted pursuant to Section 49-282.06. The director‘s approval of a remedial action that is conducted by a person other than the state is not required to preserve any right to recover remedial action costs from potentially responsible parties. Any person other than the state who undertakes a remedial action may request that the director approve the remedial action as prescribed by rules adopted pursuant to Section 49-282.06 at any time before, during or after the remedial action. The director’s decision shall be in writing and shall specify the basis of the decision. Any remedial action so approved by the director shall be deemed to be in substantial compliance with the rules and procedures adopted pursuant to Section 49-282.06. Any person who requests the director’s approval of a remedial action shall reimburse the department for the total reasonable cost to the department for the review of the remedial action unless the director waives all or a part of the reimbursement. These monies shall be deposited in the water quality assurance revolving fund established by section 49-282. Costs that are reimbursed to the department by a party that obtains the director’s approval of remedial actions pursuant to this subsection constitute remedial action costs that may be recovered from responsible parties.
C. Any person who is a defendant in an enforcement proceeding brought under section 49-287 may join in the action any other person who is or may be a responsible party.
D. Except as prescribed by Section 49-283.01, this article does not affect or modify in any way the obligations or liability of any person, by reason of subrogation or otherwise, under any other provision of state or federal law, including common law, for damages, injury or loss resulting from a release of any hazardous substance or for remedial action costs, except that any person who receives compensation for remedial action costs pursuant to this article is precluded from recovering compensation for the same remedial action costs pursuant to any other federal or state law. Any person who receives compensation for remedial action costs pursuant to any other federal or state law is precluded from receiving compensation for the same remedial action costs as provided in this article.
E. In allocating several liability between two or more potentially responsible parties, the department, an allocator pursuant to Section 49-287.06 or a court shall consider the following to determine each responsible party’s allocated shares and the orphan shares:
1. The amount and concentration of each hazardous substance involved.
2. The degree of toxicity of each hazardous substance involved.
3. The degree of involvement by the responsible parties in the generation, transportation, treatment, storage or disposal of the hazardous substance.
F. After the allocated shares and the orphan shares are determined pursuant to subsection E of this section and reduced to writing, the department, an allocator or the court may consider the following factors to adjust the allocated shares of the responsible parties, except that any adjustment under this subsection shall not adjust the amount allocated to orphan shares:
1. The magnitude of the risk to human health or the environment caused by each hazardous substance involved.
2. The degree of cooperation by the responsible party with federal, state or local officials to prevent any harm to the public health or the environment.
3. Any other factors deemed relevant by the department, an allocator or the court in determining the liability of the parties under this section.
G. An action brought by a person other than the state to recover remedial action costs from a responsible party shall be brought within three years of the completion of the remedial action or within six years of the initiation of on-site physical construction activities for the remediation, removal or disposal of hazardous substances, whichever is earlier.
H. In an action brought for recovery of remedial action costs incurred at a site not on the registry maintained pursuant to Section 49-287.01 or that is brought pursuant to Section 49-287.07, subsection A, paragraph 3, subdivision (a), (b) or (d), the court shall initially allocate costs among the responsible parties based on the factors listed in subsection E of this section. To the extent that the allocation results in costs being allocated to orphan shares, those costs shall be reallocated to the responsible parties based on such equitable factors as the court deems appropriate, including:
1. The factors listed in subsection F of this section.
2. Each responsible party’s ability to pay.
3. The degree of care exercised by each responsible party with respect to the hazardous substance of concern and taking into account the characteristics of that substance.