49-287.07. Actions for allocation and recovery of remedial action costs; limitation of actions

A. The following actions shall be brought pursuant to this section:

1. An action by the director or any person with a claim for recovery of remedial action costs to challenge a determination of liability or proportionate share in an allocator's report pursuant to section 49-287.06.

2. An action by a person to challenge a determination of its liability or its proportionate share in an allocator's report issued pursuant to section 49-287.06.

3. An action by the director or any person for allocation and recovery of remedial action costs at any site or a portion of a site listed on the registry maintained pursuant to section 49-287.01, subsection D, except as follows:

(a) An action by a person or group of persons who have obtained a no further action determination for a site pursuant to section 49-287.01, subsections F and G, for both soil and groundwater. Such an action may be brought pursuant to section 49-285.

(b) An action by one or more responsible parties who have conducted or will conduct a voluntary remedial action pursuant to section 49-282.05 or who have entered into a settlement or agreement with the director under which the person or group of persons agree to undertake a remedy or any other remedial action and to reimburse the fund for the department's costs, if any. Such an action may be brought pursuant to section 49-285.

(c) An action by the director to enforce a settlement agreement.

(d) An action by the director to recover costs incurred in undertaking an emergency remedial action pursuant to section 49-282.02. Such an action may be brought pursuant to section 49-285.

B. If the action includes a challenge regarding a determination of liability or proportionate share of a party in an allocator's report pursuant to section 49-287.06, the action shall be commenced by filing a complaint not fewer than ninety days nor more than one hundred twenty days after notice of the allocator's report is served pursuant to section 49-287.06, subsection G. If the director issues a notice of termination of allocation proceedings pursuant to section 49-287.06, subsection I, the action may be brought any time after that notice is served. In all other cases, actions brought pursuant to this section shall be filed no fewer than ninety days after notice of the allocator's report is served pursuant to section 49-287.06, subsection G. All actions commenced under this section shall be brought in the superior court in the county where the site is located or in which the department maintains an office. Title 12, chapter 7, article 2 and title 41, chapter 6, articles 6 and 10 do not apply to the action. Within five calendar days after filing the complaint, the plaintiff shall serve written notice of the filing of the complaint by certified mail on the director and each person whose liability or proportionate share were determined in the allocator's report. In any action brought pursuant to this section, unless otherwise provided in this section, the parties shall bear their own costs, expert witness fees and attorney fees.

C. A plaintiff who is challenging its own proportionate share or a finding of its liability shall name the director as the defendant. The director or a plaintiff who is seeking recovery of remedial action costs shall name as a defendant each party whose liability or proportionate share as determined by the allocator is being challenged and any other person who the plaintiff alleges is a responsible party and who was not allocated a share of liability by the allocator. The plaintiff shall not name as a defendant any person who has entered into a settlement agreement with the director that includes contribution protection or whose proportionate share or liability as set forth in the allocator's report is not being challenged. On the entry of any judicially approved consent decree providing contribution protection to any defendant regarding the site or portion of the site that is the subject of a challenge under this section, the court shall dismiss that defendant from the action pursuant to this section. The complaint and answer shall be filed and served as provided in the applicable rules of civil procedure. The action shall be tried by the court without a jury.

D. The plaintiff has the burden of proving that each defendant is a responsible party under this article, except that in an action in which a person challenges a determination of its own liability in an allocator's report, the director has the burden of proving that the person is a responsible party under this article. There is no burden of proof as to the proportionate share of any person. The court shall receive evidence offered by any party regarding the allocation of liability among the parties and any other persons, except as provided in subsection I of this section. The liability allocation notice issued pursuant to section 49-287.05, subsection A and the allocator's report issued pursuant to section 49-287.06, subsection E shall be admitted as evidence. The court shall issue an order establishing the proportionate share of liability of each party it determines to be a responsible party in accordance with section 49-285, subsections E and F. Notwithstanding a finding regarding the proportionate share of liability that differs from the allocator's report or any settlement, the court's order does not affect the liability of any person who has settled with the department pursuant to this article or whose proportionate share of liability has become final pursuant to section 49-287.06, subsection H.

E. In an action challenging a party's proportionate share of liability as determined in the allocator's report, if the party filing the challenge is not the prevailing party as determined by the court, the liability of the parties shall be adjusted pursuant to this subsection. If the parties have filed complaints against each other challenging the allocator's report, no adjustments may be made pursuant to this subsection. The court shall determine whether the plaintiff is the prevailing party based on whether the proportionate share determined by the court is closer to an offer of judgment pursuant to rule 68 of the Arizona rules of civil procedure made by one or both of the parties or to the proportionate share as determined in the allocator's report. If the plaintiff is not the prevailing party, the share of liability of the responsible party whose proportionate share is being challenged shall be adjusted as follows:

1. If the plaintiff is challenging its own proportionate share as stated in the allocator's report, the plaintiff is liable for the proportionate share contained in the court's order plus a premium of two per cent of the total remedial action costs at the site or, if applicable, a portion of the site, unless the court's order is for less than four per cent, then the premium is fifty per cent of the plaintiff's proportionate share as determined by the court.

2. If the plaintiff is the director who is challenging the proportionate share of a defendant, the defendant is liable for the proportionate share contained in the court's order minus a discount of two per cent of the total remedial action costs at the site or, if applicable, a portion of the site, unless the court's order is for less than four per cent, then the discount is fifty per cent of the defendant's proportionate share as determined by the court.

3. If the plaintiff, other than the director, is seeking recovery of remedial action costs and is challenging the proportionate share of a defendant, the defendant is liable for the proportionate share contained in the court's order, and the plaintiff is liable to the defendant for an amount equal to two per cent of the total remedial action costs at the site or, if applicable, a portion of the site.

F. In any action pursuant to this section, including an action to obtain a judgment based on a final allocator's determination pursuant to section 49-287.06, subsection H, or in any settlement after the conclusion of the allocation proceeding under section 49-287.06, a party who received notice pursuant to section 49-287.06, subsection A, who did not participate in the allocation proceeding under section 49-287.06 and who is found to be a responsible party under this article is liable for all of the following:

1. Its proportionate share of liability.

2. A premium of fifty per cent of that party's proportionate share.

3. The plaintiff's costs, attorney fees and expert fees incurred in both the allocation proceeding and the court action.

G. In any action brought pursuant to this section, if the superior court finds that a defendant is not a responsible party under this article, the plaintiff is liable for all of that defendant's reasonable costs, attorney fees and expert fees incurred in the court action.

H. If more than one action is filed under this section, the court shall join all actions into a single proceeding.

I. No party may allege that any other person is responsible for any portion of liability unless that person was identified to the director pursuant to section 49-287.04 except on a showing of good cause and due diligence.

J. No determination by the director or an allocator pursuant to this article as to the fact or extent of a person's liability under this article may be admitted into evidence or used in any judicial proceeding initiated against that person other than a proceeding pursuant to this section.

K. In any action brought pursuant to this section, on the request of any party with a claim for recovery of remedial action costs, the court shall award a judgment against the responsible party for its proportionate share of remedial action costs as prescribed by section 49-285. The judgment shall reflect any adjustments of amounts due pursuant to subsections E and F of this section.