49-288. Information gathering and access; enforcement; retaliatory action; civil penalties

A. The director may take an action authorized under subsection B or C of this section to determine the need for, to select or to undertake any remedial action pursuant to this article, to investigate and allocate the liability of any person under this article or to otherwise enforce the provisions of this article or a rule adopted pursuant to this article. Any such action taken regarding the release or threatened release of a pollutant shall not require a person to create information or documents not then in existence but may require sorting, organization, compilation or formatting of information in existence.

B. The director may require a person who has or may have information relevant to a release or threatened release of a hazardous substance, or pollutant as identified by the director in the request, or the liability of any person under this article including information relating to the ability of a person to pay for or to undertake remedial actions pursuant to this article, to furnish, after reasonable notice, information or documents relating to such release or threatened release or the liability of any person under this article or to grant access at all reasonable times, after reasonable notice, to a facility or other place owned or operated by the person to inspect and copy all documents or records relating to such release or threatened release or the liability of any person under this article. At the option of the person, the person may copy and furnish, at the person's expense, all such documents or records to the director. If any information under this section is claimed confidential pursuant to section 49-205, subsection A, the information shall be provided to the director but not made available to the public pending the determination of confidentiality pursuant to section 49-205. Written notice of the determination regarding confidentiality shall be provided to the person claiming confidentiality. If the person claiming confidentiality does not file an action for declaratory relief in superior court within thirty days of receiving this notice, the information shall be made available to the public.

C. The director or an agent designated by the director with appropriate documentation that identifies the person who has been given authority from the director, after reasonable notice, may enter a facility or other place at reasonable times under any of the following circumstances:

1. Where a hazardous substance or a regulated substance as defined in section 49-1001 may be or has been generated, stored, treated, disposed of or transported from and which may be related to a release or threatened release of a hazardous substance or regulated substance.

2. From which or to which a hazardous substance or a regulated substance as defined in section 49-1001 has been or may have been released or where such release is or may be threatened.

3. Where entry is needed to determine the need for remedial actions or the appropriate remedial actions or to effectuate remedial actions pursuant to this article.

4. To inspect and obtain samples of any suspected hazardous substance or a regulated substance as defined in section 49-1001 which has been or may have been released or where such release is or may be threatened, including samples of containers or labeling.

D. If a sample is obtained pursuant to subsection C, paragraph 4 of this section, the director shall, before leaving the premises, give to the owner, operator or other person in control of the facility or other place from which the samples were obtained a receipt describing the sample obtained and, if requested, a portion of each sample. A copy of the results of any analysis made of such samples shall be furnished promptly to the owner, operator or other person in control, if such person can be located. Inspections pursuant to subsection C, paragraph 4 of this section shall be completed with reasonable promptness.

E. If consent is not granted regarding any request made by the director under subsections A through C of this section, then the director may issue an order requiring compliance with the request within a specified time period that the director determines is appropriate under the circumstances. The order shall provide that the time period for compliance shall be extended for good cause shown as determined by the director. The order may not be issued until an opportunity for consultation as is reasonably appropriate under the circumstances has been afforded to the person to whom the request is made.

F. The director may ask the attorney general to commence a civil action to compel compliance with a request made pursuant to subsections A through C of this section or an order issued pursuant to subsection E of this section.

G. The court may enjoin acts of noncompliance or may assess a civil penalty of not to exceed five thousand dollars for each day of noncompliance against any person who unreasonably fails to comply with an order issued pursuant to subsection E of this section. All civil penalties assessed pursuant to this section shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund. The attorney general, at the request of the director, may commence an action in superior court to recover civil penalties provided for in this subsection. In determining the amount of a civil penalty under this subsection, the court shall consider:

1. The seriousness of the act of noncompliance under this section.

2. As an aggravating factor only, the economic benefit, if any, resulting from the act of noncompliance under this section.

3. Any history of such violation.

4. Any good faith efforts to comply with the order.

5. The economic impact of the penalty on the person.

6. Such other factors as the court deems relevant.

H. No person shall fire or otherwise discriminate against any employee with respect to wages, hours, duties, responsibilities or employment position by reason of the fact that the employee provided information to the state, has testified or may testify, in any administrative, allocation or judicial proceeding commenced pursuant to this article. Any employee alleging a violation of this section may bring an action in superior court to obtain reinstatement, back pay, compensatory damages, and reasonable attorney fees. An action must be commenced within one year of the alleged violation and shall constitute the exclusive recourse for the violation.

I. Nothing in this section shall preclude the director from securing access or obtaining information in any other lawful manner.