Montana Code 75-10-715. Liability — reimbursement and penalties — proceedings — defenses and exclusions
75-10-715. Liability — reimbursement and penalties — proceedings — defenses and exclusions. (1) Except as provided in 70-30-323 and 75-10-742 through 75-10-751, notwithstanding any other provision of law, and subject only to the defenses set forth in subsection (5) and the exclusions set forth in subsection (7), the following persons are jointly and severally liable for a release or threatened release of a hazardous or deleterious substance from a facility:
Terms Used In Montana Code 75-10-715
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- Bequest: Property gifted by will.
- Contract: A legal written agreement that becomes binding when signed.
- Customary: means according to usage. See Montana Code 1-1-206
- Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
- Deed: The legal instrument used to transfer title in real property from one person to another.
- Department: means the department of environmental quality provided for in 2-15-3501. See Montana Code 75-10-701
- Escheat: Reversion of real or personal property to the state when 1) a person dies without leaving a will and has no heirs, or 2) when the property (such as a bank account) has been inactive for a certain period of time. Source: OCC
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Facility: means :
(i)any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft; or
(ii)any site or area where a hazardous or deleterious substance has been deposited, stored, disposed of, placed, or otherwise come to be located. See Montana Code 75-10-701
- Fiduciary: A trustee, executor, or administrator.
- Fiduciary: means a trustee, executor, administrator, personal representative, custodian, conservator, guardian, or receiver acting or holding property for the exclusive benefit of another person. See Montana Code 75-10-701
- Foreclosure: A legal process in which property that is collateral or security for a loan may be sold to help repay the loan when the loan is in default. Source: OCC
- Foreclosure: means acquisition of title to property through foreclosure, purchase at foreclosure sale, assignment or acquisition of title in lieu of foreclosure, repossession in the case of a lease financing transaction, or acquisition of a right to title or other agreement in full or partial settlement of a loan obligation. See Montana Code 75-10-701
- Hazardous or deleterious substance: means a substance that because of its quantity, concentration, or physical, chemical, or infectious characteristics may pose an imminent and substantial threat to public health, safety, or welfare or the environment and is:
(a)a substance that is defined as a hazardous substance by section 101(14) of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U. See Montana Code 75-10-701
- Household: means single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, day-use recreational areas, or similar structures or areas. See Montana Code 75-10-701
- Household refuse: means garbage, trash, and sanitary wastes in septic tanks that are derived from a household. See Montana Code 75-10-701
- Lease: A contract transferring the use of property or occupancy of land, space, structures, or equipment in consideration of a payment (e.g., rent). Source: OCC
- Lien: A claim against real or personal property in satisfaction of a debt.
- Mortgage: The written agreement pledging property to a creditor as collateral for a loan.
- Natural resources: means land, fish, wildlife, biota, air, surface water, ground water, drinking water supplies, and any other resources within the state of Montana owned, managed, held in trust, or otherwise controlled by or appertaining to the state of Montana or a political subdivision of the state. See Montana Code 75-10-701
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- Owns or operates: means owning, leasing, operating, managing activities at, or exercising control over the operation of a facility. See Montana Code 75-10-701
- Person: means an individual, trust, firm, joint-stock company, joint venture, consortium, commercial entity, partnership, association, corporation, commission, state or state agency, political subdivision of the state, interstate body, or the federal government, including a federal agency. See Montana Code 75-10-701
- Personal property: All property that is not real property.
- Personal property: means money, goods, chattels, things in action, and evidences of debt. See Montana Code 1-1-205
- Property: means real and personal property. See Montana Code 1-1-205
- Real property: means lands, tenements, hereditaments, and possessory title to public lands. See Montana Code 1-1-205
- 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 of a hazardous or deleterious substance directly into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous or deleterious substance), but excludes releases confined to the indoor workplace environment, the use of pesticides as defined in 80-8-102 when they are applied in accordance with approved federal and state labels, and the use of commercial fertilizers, as defined in 80-10-101, when applied as part of accepted agricultural practice. See Montana Code 75-10-701
- Remedial action: includes all notification, investigation, administration, monitoring, cleanup, restoration, mitigation, abatement, removal, replacement, acquisition, enforcement, legal action, health studies, feasibility studies, and other actions necessary or appropriate to respond to a release or threatened release. See Montana Code 75-10-701
- Remedial action costs: means reasonable costs that are attributable to or associated with a remedial action at a facility, including but not limited to the costs of administration, investigation, legal or enforcement activities, contracts, feasibility studies, or health studies. See Montana Code 75-10-701
- State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See Montana Code 1-1-201
- Venue: The geographical location in which a case is tried.
- Vessel: when used in reference to shipping, includes ships of all kinds, steamboats and steamships, canal boats, and every structure adapted to be navigated from place to place. See Montana Code 1-1-207
(a)a person who owns or operates a facility where a hazardous or deleterious substance was disposed of;
(b)a person who at the time of disposal of a hazardous or deleterious substance owned or operated a facility where the hazardous or deleterious substance was disposed of;
(c)a person who generated, possessed, or was otherwise responsible for a hazardous or deleterious substance and who, by contract, agreement, or otherwise, arranged for disposal or treatment of the substance or arranged with a transporter for transport of the substance for disposal or treatment; and
(d)a person who accepts or has accepted a hazardous or deleterious substance for transport to a disposal or treatment facility.
(2)A person identified in subsection (1) is liable for the following costs:
(a)all remedial action costs incurred by the state; and
(b)damages for injury to, destruction of, or loss of natural resources caused by the release or threatened release, including the reasonable technical and legal costs of assessing and enforcing a claim for the injury, destruction, or loss resulting from the release, unless the impaired natural resources were specifically identified as an irreversible and irretrievable commitment of natural resources in an approved final state or federal environmental impact statement or other comparable approved final environmental analysis for a project or facility that was the subject of a governmental permit or license and the project or facility was being operated within the terms of its permit or license.
(3)If the person liable under subsection (1) fails, without sufficient cause, to comply with a department order issued pursuant to 75-10-711(4) or to properly provide remedial action upon notification by the department pursuant to 75-10-711(3), the person may be liable for penalties in an amount not to exceed two times the amount of any costs incurred by the state pursuant to this section.
(4)The department may initiate civil proceedings in district court to recover remedial action costs, natural resource damages, or penalties under subsections (1), (2), and (3). Proceedings to recover costs and penalties must be conducted in accordance with 75-10-722. Venue for any action to recover costs, damages, or penalties lies in the county where the release occurred or where the person liable under subsection (1) resides or has its principal place of business.
(5)A person has a defense and is not liable under subsections (1), (2), and (3) if the person can establish by a preponderance of the evidence that:
(a)the department failed to provide notice to the person claiming the defense when required by 75-10-711. Establishment of this defense only prohibits the department from collecting those costs incurred or encumbered by the department prior to providing notice to the person and does not provide the person a defense to any other liability.
(b)the release did not emanate from any vessel, vehicle, or facility to which the person contributed any hazardous or deleterious substance or over which the person had any ownership, authority, or control and was not caused by any action or omission of the person;
(c)the release or threatened release occurred solely as a result of:
(i)an act or omission of a third party other than either an employee or agent of the person; or
(ii)an act or omission of a third party other than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the person, if the person establishes by a preponderance of the evidence that the person:
(A)exercised due care with respect to the hazardous or deleterious substance concerned, taking into consideration the characteristics of the hazardous or deleterious substance in light of all relevant facts and circumstances; and
(B)took precautions against foreseeable acts or omissions of a third party and the consequences that could foreseeably result from those acts or omissions;
(d)the release or threatened release occurred solely as the result of an act of God or an act of war;
(e)the release or threatened release was from a facility for which a permit had been issued by the department, the hazardous or deleterious substance was specifically identified in the permit, and the release was within the limits allowed in the permit;
(f)in the case of assessment of penalties under subsection (3), factors beyond the control of the person prevented the person from taking timely remedial action; or
(g)the person transported only household refuse, unless that person knew or reasonably should have known that the hazardous or deleterious substance was present in the refuse.
(6)(a) For the purpose of subsection (5)(c)(ii), the term “contractual relationship” includes but is not limited to land contracts, deeds, or other instruments transferring title or possession, unless the real property on which the facility is located was acquired by the person after the disposal or placement of the hazardous or deleterious substance on, in, or at the facility and one or more of the following circumstances is also established by the person by a preponderance of the evidence:
(i)At the time the person acquired the facility, the person did not know and had no reason to know that a hazardous or deleterious substance that is the subject of the release or threatened release was disposed of on, in, or at the facility.
(ii)The person is a governmental entity that acquired the facility by escheat, lien foreclosure, or through any other involuntary transfer or acquisition or through the exercise of eminent domain authority by purchase or condemnation pursuant to Title 70, chapter 30.
(iii)The person acquired the facility by inheritance or bequest.
(b)In addition to establishing one or more of the circumstances in subsection (6)(a)(i) through (6)(a)(iii), the person shall establish that the person has satisfied the requirements of subsection (5)(c)(i) or (5)(c)(ii).
(c)To establish that the person had no reason to know, as provided in subsection (6)(a)(i), the 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 assessing this inquiry, the following must be taken into account:
(i)any specialized knowledge or experience on the part of the person;
(ii)the relationship of the purchase price to the value of the property if uncontaminated;
(iii)commonly known or reasonably ascertainable information about the property;
(iv)the obviousness of the presence or the likely presence of contamination on the property; and
(v)the ability to detect the contamination by appropriate inspection.
(d)(i) Subsections (5)(b) and (5)(c) or this subsection (6) may not diminish the liability of a previous owner or operator of the facility who would otherwise be liable under this part.
(ii)Notwithstanding this subsection (6), if the previous owner or operator obtained actual knowledge of the release or threatened release of a hazardous or deleterious substance at the facility when the person owned the real property and then subsequently transferred ownership of the property to another person without disclosing the knowledge, the previous owner is liable under subsections (1), (2), and (3) and a defense under subsection (5)(b) or (5)(c) is not available to that person.
(e)This subsection (6) does not affect the liability under this part of a person who, by any act or omission, caused or contributed to the release or threatened release of a hazardous or deleterious substance that is the subject of the action relating to the facility.
(7)A person has an exclusion and is not liable under this section if:
(a)the person generated or disposed of only household refuse, unless the person knew or reasonably should have known that the hazardous or deleterious substance was present in the refuse;
(b)the person owns or operates real property where hazardous or deleterious substances have come to be located solely as a result of subsurface migration in an aquifer from a source or sources outside the person’s property, provided that the following conditions are met:
(i)the owner or operator did not cause, contribute to, or exacerbate the release or threatened release of any hazardous or deleterious substances through any act or omission. The failure to take affirmative steps to mitigate or address contamination that has migrated from a source outside the owner’s or operator’s property does not, in the absence of exceptional circumstances, constitute an omission by the owner or operator.
(ii)the person who caused, contributed to, or exacerbated the release or threatened release of any hazardous or deleterious substance is not and was not an agent or employee of the owner or operator and is not or was not in a direct or indirect contractual relationship with the owner or operator, unless the department provides a written determination that an existing or proposed contractual relationship is an insufficient basis to establish liability under this section;
(iii)there is no other basis of liability under subsection (1) for the owner or operator for the release or threatened release of a hazardous or deleterious substance; and
(iv)the owner or operator cooperates with the department and all persons conducting department-approved remedial actions on the property, including granting access and complying with and implementing all required institutional controls;
(c)the person owns or occupies real property of 20 acres or less for residential purposes, provided that the following conditions are met:
(i)the person did not cause, contribute to, or exacerbate the release or threatened release of any hazardous or deleterious substance through any act or omission;
(ii)the person uses or allows the use of the real property for residential purposes. This exclusion does not apply to any person who acquires or develops real property for commercial use or any use other than residential use.
(iii)at the time the person purchased or occupied the real property, there were no visible indications of contamination on the surface of the real property;
(iv)the person cooperates with the department and all persons conducting department-approved remedial actions on the property, including granting access and complying with and implementing all required institutional controls; and
(v)there is no other basis of liability under subsection (1) for the owner or occupier for the release or threatened release of a hazardous or deleterious substance.
(8)A person is liable under this section if the department provides substantial credible evidence that the person fails to satisfy any element of each exclusion in subsections (7)(a) through (7)(c).
(9)The liability of a fiduciary under the provisions of this part for a release or a threatened release of a hazardous or deleterious substance from a facility held in a fiduciary capacity may not exceed the assets held in the fiduciary capacity that are available to indemnify the fiduciary unless the fiduciary is liable under this part independent of the person’s ownership or actions taken in a fiduciary capacity.
(10)A person who holds indicia of ownership in a facility primarily to protect a security interest is not liable under subsections (1)(a) and (1)(b) for having participated in the management of a facility within the meaning of 75-10-701(15)(b) because of any one or any combination of the following:
(a)holding an interest in real or personal property when the interest is being held as security for payment or performance of an obligation, including but not limited to a mortgage, deed of trust, lien, security interest, assignment, pledge, or other right or encumbrance against real or personal property that is furnished by the owner to ensure repayment of a financial obligation;
(b)requiring or conducting financial or environmental assessments of a facility or a portion of a facility, making financing conditional upon environmental compliance, or providing environmental information or reports;
(c)monitoring the operations conducted at a facility or providing access to a facility to the department or its agents or to remedial action contractors;
(d)having the mere capacity or unexercised right to influence a facility’s management of hazardous or deleterious substances;
(e)giving advice, information, guidance, or direction concerning the administrative and financial aspects, as opposed to day-to-day operational aspects, of a borrower’s operations;
(f)providing general information concerning federal, state, or local laws governing the transportation, storage, treatment, and disposal of hazardous or deleterious substances and concerning the hiring of remedial action contractors;
(g)engaging in financial workouts, restructuring, or refinancing of a borrower’s obligations;
(h)collecting rent, maintaining utility services, securing a facility from unauthorized entry, or undertaking other activities to protect or preserve the value of the security interest in a facility;
(i)extending or denying credit to a person owning or in lawful possession of a facility;
(j)in an emergency, requiring or undertaking activities to prevent exposure of persons to hazardous or deleterious substances or to contain a release;
(k)requiring or conducting remedial action in response to a release or threatened release if prior notice is given to the department and the department approves of the remedial action; or
(l)taking title to a facility by foreclosure, provided that the holder of indicia of ownership, from the time the holder acquires title, undertakes to sell, re-lease property held pursuant to a lease financing transaction (whether by a new lease financing transaction or substitution of the lessee), or otherwise divest itself of the property in a reasonably expeditious manner, using whatever commercially reasonable means are relevant or appropriate with respect to the facility and taking all facts and circumstances into consideration and provided that the holder does not:
(i)outbid or refuse a bid for fair consideration for the property or outbid or refuse a bid that would effectively compensate the holder for the amount secured by the facility;
(ii)worsen the contamination at the facility;
(iii)incur liability under subsection (1)(c) or (1)(d) by arranging for disposal of or transporting hazardous or deleterious substances; or
(iv)engage in conduct described in subsection (11).
(11)The protection from liability provided in subsections (9) and (10) is not available to a fiduciary or to a person holding indicia of ownership primarily to protect a security interest if the fiduciary or person through affirmative conduct:
(a)causes or contributes to a release of hazardous or deleterious substances from the facility;
(b)allows others to cause or contribute to a release of hazardous or deleterious substances; or
(c)in the case of a person holding indicia of ownership primarily to protect a security interest, actually participates in the management of a facility by:
(i)exercising decisionmaking control over environmental compliance; or
(ii)exercising control at a level comparable to that of a manager of the enterprise with responsibility for day-to-day decisionmaking either with respect to environmental compliance or substantially all of the operational, as opposed to financial or administrative, aspects of the facility.