75-10-750. Allocating liability. (1) Upon selection or appointment, the allocator shall establish the process and schedule for determining the allocation, including the length and scope of any documents to be presented.

(2) The participating persons shall submit to the allocator and to each other a statement of position and exhibits of a factual nature. Each person's statement must identify the factors listed in subsection (5) that the person believes are relevant to allocation of liability for the facility.

(3) The allocator may convene the participating persons as the allocator believes necessary to clarify the facts and may pose additional questions, interview any person or the person's representative, and impose presumptions concerning missing information. The allocator may seek department assistance with information gathering pursuant to 75-10-707.

(4) The allocator may not engage in ex parte communications with any person or the person's representative.

(5) The allocator shall allocate each participating and nonparticipating person's share of liability based only on information presented or collected during the allocation process and, taking into account facility characteristics, shall apportion liability on a percentage basis according to the following factors:

(a) the extent to which the person caused the release of the hazardous or deleterious substance;

(b) the extent to which the person's contribution to the release of a hazardous or deleterious substance can be distinguished;

(c) the amount or volume of hazardous or deleterious substance and the amount contributed by the person;

(d) the relative hazard of the hazardous or deleterious substance contributed by the person, including volatility, carcinogenicity, mobility, persistence, reactivity, and toxicity;

(e) the degree of past and present cooperation by the person with the government to prevent harm to the public health, safety, or welfare and the environment, including participation in remedial actions occurring concurrently with the allocation process and compliance and cooperation with discovery pursuant to 75-10-747;

(f) what the person knew or should have known of the hazardous nature of the substance, the risk associated with that substance, and proper waste disposal practices;

(g) the circumstances of the property acquisition, including the documented price paid and discounts granted;

(h) the person's knowledge of or acquiescence to waste generation, storage, handling, treatment, or disposal;

(i) the length of time of ownership, operation, generation, or transportation;

(j) any violations of or noncompliance with health and environmental regulations, including permit violations or violations relating to public notification;

(k) the degree to which a person providing publicly owned landfill or sewer and water systems had or has a reasonable ability to control disposed materials and the person's degree of care in maintaining those services;

(l) the person's financial or economic benefit from:

(i) ownership or operation of the facility;

(ii) the generation, transportation, or disposal of the hazardous or deleterious substance; and

(iii) cleanup of the facility;

(m) whether the person exercised due diligence in generating, transporting, or disposing of hazardous or deleterious substances and the person's control over those activities; and

(n) other equitable factors that are appropriate.

(6) Within 60 days of selection or appointment, the allocator shall submit to the department and all noticed and nominated persons a written allocation report that allocates each person's share of liability and that documents the rationale for the percentage of liability allocated to each person.

(7) The allocator or the participating persons may extend the allocation proceeding by up to 30 days if agreed to by the allocator and all the participating persons.

(8) Within 30 days of the date of the allocation report, the persons who participated in the allocation and who were allocated a share of liability, except for the orphan share, shall prepare and sign a stipulated agreement that contains:

(a) the percentage share of liability for each person as determined by the allocator;

(b) procedures for paying for the orphan share prior to reimbursement from the orphan share fund;

(c) a waiver of contribution rights against all persons who are potentially liable for the remedial action as well as a waiver of any rights to challenge any settlement that the department enters into with any other potentially liable person;

(d) covenants not to sue and provisions regarding performance or adequate assurance of performance of remedial actions;

(e) how remedial actions will be conducted;

(f) a penalty provision in accordance with subsection (12);

(g) acknowledgment of contribution protection, consistent with 75-10-719(1), regarding matters addressed in the settlement; and

(h) provisions detailing how the persons signing the stipulated agreement should receive reimbursement from the orphan share fund for any remedial action costs incurred by the persons in excess of their allocated share.

(9) If the department determines that the stipulated agreement does not satisfy the requirements of subsection (8), the liable persons who participated in the allocation remain subject to liability as provided in 75-10-715.

(10) A person who did not participate in the allocation but who was assigned a share of liability may sign the stipulated agreement prepared according to subsection (8).

(11) Any liable person allocated a share of liability who does not sign the stipulated agreement remains subject to liability as provided in 75-10-715.

(12) Any liable person who signs the stipulated agreement and fails to comply with the terms of the stipulated agreement shall pay, in addition to the person's share of remedial action costs, a penalty of two times the amount of the person's allocated share of liability. Any funds received must be applied to the facility's orphan share and any funds in excess of the facility's orphan share amount must be deposited in the orphan share fund established under 75-10-743.

(13) If a liable person becomes bankrupt or defunct after the stipulated agreement is signed and before remedial actions are complete at the facility, that person's share of liability becomes an orphan share.

History: En. Sec. 20, Ch. 415, L. 1997.