Montana Code 75-10-729. Restoration damages
75-10-729. Restoration damages. (1) Except as provided in subsections (2) and (3), this section applies to civil claims brought in judicial proceedings on behalf of individuals and entities for the recovery of restoration damages to address impacts to real property caused by releases of hazardous or deleterious substances.
Terms Used In Montana Code 75-10-729
- 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 provided for in 2-15-3501. See Montana Code 75-10-701
- Escrow: Money given to a third party to be held for payment until certain conditions are met.
- 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
- 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
- Plaintiff: The person who files the complaint in a civil lawsuit.
- Property: means real and personal property. See Montana Code 1-1-205
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
- Real property: means lands, tenements, hereditaments, and possessory title to public lands. See Montana Code 1-1-205
- 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
- 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.
- 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
- Statute: A law passed by a legislature.
(2)Restoration damages may be awarded only for a claim alleging contamination of special use property and may be obtained only in accordance with the definitions and other requirements set forth in this section. The plaintiff bears the burden of proof to show that the property meets the definition of special use property.
(3)Restoration damages may not be awarded or used to alter an interim or final remedial action that has been or will be undertaken on, or will benefit, a special use property pursuant to any of the following authorities:
(a)a federal administrative order issued pursuant to 42 U.S.C. § 9601, et seq., as of March 27, 2021;
(b)a state administrative order issued pursuant to this part;
(c)a judicially approved consent decree; or
(d)any other interim or final remedial action plan approved by the department pursuant to state statutory or administrative law.
(4)(a) Restoration damages awarded pursuant to subsection (2), exclusive of awards of attorney fees and costs, may be used only to conduct remedial and corrective action necessary to restore the special use property for which the damages were awarded. Restoration must commence within 3 years from the date the judgment is paid or settlement proceeds are received.
(b)If any awarded restoration damages remain after completion of the restoration work, the surplus must be refunded to the defendant. If the defendant is no longer viable or cannot be found, the funds must be remitted to the department.
(5)Any party may request that a court awarding restoration damages also order that those damages be deposited in a segregated trust or escrow account at a commercial bank or trust company to ensure compliance with subsection (4)(a). The plaintiff may create a trust or escrow account to be overseen by a qualified professional to restore the special use property.
(6)Nothing in this section precludes the award of other damages allowed under common law and statute.
(7)As used in this section, the following definitions apply:
(a)”Qualified professional” means a person who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to design and oversee implementation of a restoration plan.
(b)”Restoration damages” means the amount of compensation determined reasonably necessary by a trier of fact to restore a contaminated special use property to its function, use, or condition prior to the contamination on which a civil claim is based, unless contamination was present at the time the plaintiff acquired the special use property, in which case the term means the amount of compensation determined necessary by a trier of fact to restore a contaminated special use property to the function, use, or condition that existed at the time the plaintiff acquired the special use property.
(c)”Special use property” means real property contaminated by a release of a hazardous or deleterious substance that is found by a trier of fact to have objectively reasonable personal value to the plaintiff not reflected in the market value of the property or to have unique public, historic, cultural, or religious value not reflected in the market value of the property.