49-287.06. Allocation hearing

A. Ninety days after the issuance of notice pursuant to section 49-287.05, subsection A, the director shall issue a notice to each person who has not settled its liability with the department of the start of an allocation proceeding. The director shall propose the names of at least three allocators taken from a list maintained by the director. The director shall be entitled to be represented in the allocation proceeding but may waive this right. If all parties have settled, the director's notice shall advise all persons notified pursuant to section 49-287.05 that no allocation hearing will be held pursuant to this section.

B. Within fifteen days of receipt, each person receiving the notice of allocation proceeding shall respond to the director regarding the acceptability of any of the allocators on the director's list. If all of the parties cannot agree on one of the allocators proposed by the director, each party may provide the names of up to three other proposed allocators. If the director and all of the parties cannot agree on a proposed allocator within thirty days after the issuance of the director's notice pursuant to this section, the director shall request the presiding civil judge of the superior court in the county where the site is located to select an allocator. Within thirty days after the request, the presiding civil judge shall select an allocator and advise the director of the selection.

C. The director shall give all parties written notice of the selection of the allocator. The allocator shall set the date for hearing at least sixty and not more than one hundred twenty days after the date of the notice of selection of the allocator pursuant to this section. The allocator may continue the date of the hearing for good cause. Ex parte contact with the allocator regarding any of the evidence or issues in the allocation is prohibited.

D. The allocator shall conduct an allocation hearing and, on request of one or more of the parties, may conduct a mediation or settlement conference before the allocation hearing. The allocator has the power to administer oaths or affirmations to witnesses. In conducting the allocation hearing, the allocator has discretion to determine the procedures to be followed, except that:

1. Each party shall provide the allocator, the director and all parties with a disclosure statement at least thirty days before the date of the first scheduled hearing. The disclosure statement shall comply with rule 26.1, Arizona rules of civil procedure, and shall include a statement of the method of allocation proposed, a description of evidence supporting the factors listed in section 49-285, subsections E and F intended to be presented at the hearing and a description of any other relevant evidence known to the party, including information regarding the responsibility of any other person. Copies of any documentary evidence shall be included with the disclosure statement unless already in the department's public file on the site or a disclosure statement previously filed pursuant to this paragraph. Evidence that is not disclosed in a party's disclosure statement is inadmissible by that party at the hearing. Evidence that a party failed to provide the director pursuant to a request under section 49-288 is inadmissible by that party at the hearing. The liability allocation notice issued by the director pursuant to section 49-287.05, subsection A and the public record on file at the department may serve as the disclosure statement of the director and any persons who have settled their liability with the director. The director may supplement the liability allocation notice up to thirty days prior to the first scheduled hearing date. The allocator shall resolve disputes regarding the adequacy of disclosure statements.

2. The director has the burden of proving that all other parties are responsible parties under this article. The allocator shall allow each party to present evidence relevant to the liability and proportionate share of liability of any person, except as provided in paragraphs 8 and 9 of this subsection. There is no burden of proof as to the proportionate share of any person. The allocator shall hear all of the evidence and assign the proportionate shares in accordance with the considerations as specified in section 49-285, subsections E and F.

3. The allocator shall allow each party to cross-examine any other party's witnesses, except that the allocator may limit cross-examination to avoid needless delay or a needless presentation of cumulative evidence or to expedite the hearing.

4. The allocator may issue subpoenas to compel the attendance of witnesses and the production of documents. The subpoenas shall be served and, on application to the superior court, enforced in the manner provided by law for the service and enforcement of subpoenas in civil actions. Service of the subpoena is the responsibility of the person requesting the subpoena. Discovery shall not be permitted except on a showing of good cause and due diligence as determined by the allocator.

5. The allocator may request any additional information from any party if the allocator believes that this information is necessary to assist in making a determination regarding liability or the share of any person.

6. If, during the hearing or at its conclusion, the allocator believes that additional information is necessary to issue a report, the allocator may order the parties to exchange additional information and submit posthearing evidence for a period of not more than sixty days.

7. The allocator shall use the Arizona rules of civil procedure as guidance for hearing procedures, but may depart from these rules as prompt and fair resolution of the issues demand, and shall honor all privileges recognized under Arizona law. The allocator may allow any relevant evidence, including hearsay evidence, to be admitted and shall give appropriate weight to all of the evidence. The allocator may impose time limits on individual presentations and may require the consolidation of presentations or cross-examination if this consolidation can be justified by commonality of interests. The disclosure statements and the liability allocation notice sent by the director pursuant to section 49-287.05 shall be admitted as evidence. The proceeding shall be recorded by a court reporter upon request by any party who agrees to pay the costs.

8. Except on a showing of good cause and due diligence as determined by the allocator, a party may not allege that a person is responsible for a share of liability unless that person was named in the director's list of liable persons issued pursuant to section 49-287.05 or was identified as a potentially liable person pursuant to section 49-287.04.

9. A party may not introduce evidence at the hearing regarding the liability or share of liability of any person under this article unless the director was notified of the existence of the information pursuant to section 49-287.04. The allocator may allow the introduction of that evidence if the party acquired the information after that time and if the party shows good cause and due diligence as determined by the allocator, if the party provided the evidence to the director promptly after it was acquired.

E. Within sixty days after the hearing or, if applicable, the end of the period for submitting posthearing evidence, the allocator shall issue a written allocation report identifying the persons who are liable and the proportionate share of liability of each person in accordance with section 49-285, subsections E and F in percentages adding up to one hundred per cent. The allocator shall send a copy of the report to each party.

F. All parties to the allocation shall bear an equal share of the allocator's fees and costs, which shall be specified in the allocator's report.

G. The director shall serve notice of the issuance of the allocator's report on all persons notified pursuant to subsection A of this section and on the persons who filed an appeal of the record of decision pursuant to section 49-287.04. The notice shall state that there shall be a period of ninety days after service of the notice for settlement discussions, that the allocator's findings are final unless a challenge is filed pursuant to section 49-287.07 and the period for challenging the allocator's findings as provided in section 49-287.07, subsection B.

H. The findings regarding liability and the proportionate share of liability for each person as set forth in the allocator's report are final unless a timely challenge regarding a person's liability or proportionate share is filed as provided in section 49-287.07, subsection B. The director or any other person with a claim for recovery of remedial action costs against a responsible party whose proportionate share as found by the allocator has become final pursuant to this subsection may obtain a judgment based on the proportionate share determined in the allocator's report. In any action to obtain such a judgment, the responsible party whose allocated share has become final may not dispute its proportionate share of liability as determined by the allocator, and the plaintiff may recover its costs and attorney fees incurred in obtaining and enforcing the judgment. The liability of any person that has become final pursuant to this subsection is not affected by any subsequent determination by a court in any action.

I. If all parties settle during a proceeding pursuant to this section, the director shall terminate the proceedings. If all parties, not including the director, fail or refuse to participate, the director may proceed with the allocation hearing or may terminate the proceedings. If the director terminates the proceedings, the director shall provide written notice within thirty days of termination of proceedings pursuant to this section to all persons who received notice pursuant to section 49-287.05.