[§128D-18] Apportionment and contribution. (a) Liability to the State for any costs or expenditures under this chapter shall be joint and several. Wholly apart from such liability to the State, as between parties who are liable under this chapter, there shall be the rights of apportionment and contribution as provided in this section.
(b) Any party found liable for any costs or expenditures may institute an action for apportionment under this section at any time after receiving an order or after costs or expenditures are incurred by the liable party. Any party found liable for any costs or expenditures may join any other parties that may be liable under section 128D-6 in an action for apportionment.
(c) Any action for apportionment under this section shall be without prejudice to any other action that may be brought by an objecting party under this chapter.
(d) Any party who has incurred removal or remedial action costs in accordance with this chapter may seek contribution or indemnity from any person who is liable pursuant to this chapter. An action to enforce a claim for indemnity or contribution may be brought by any defendant in an action brought pursuant to this chapter or in a separate action after the party seeking contribution or indemnity has paid removal or remedial action costs in accordance with this chapter. In resolving claims for indemnity or contribution, the environmental court may allocate costs among liable parties using those equitable principles which are appropriate.
(e) Any party who receives compensation for response costs or damages or claims pursuant to this chapter shall be precluded from recovering compensation for the same response costs or damages or claims pursuant to any other state or federal law. Any party who receives compensation for response costs or damages or claims pursuant to any other state or federal law shall be precluded from receiving compensation for the same response costs of damages or claims as provided in this chapter.
(f) Any party found liable for any costs or expenditures under this chapter except under section 128D-5, who establishes by a preponderance of the evidence that only a portion of those costs or expenditures are attributable to that party's actions, shall be required to pay only for that portion. All recoverable costs or expenditures shall be allocated by the environmental court. If any share of the response costs is not paid by a liable party because of insolvency or otherwise, that share shall be assigned to an orphan share. If there is an orphan share, the environmental court shall adjust the allocations of the remaining liable parties so that in addition to paying their allocated shares, they proportionately pay the entire orphan share.
(g) In the process of apportionment of costs among the parties found liable and the establishment of the orphan share, the environmental court shall consider the following criteria:
(1) The volume of hazardous substances transported to the site by each party. For purposes of determining volume, the volume of each transport of a hazardous substance shall be allocated between the arranger for the transport and the transporter of a hazardous substance in apportioning a percentage share of response costs;
(2) The anticipated impact of the hazardous substance and control of the hazardous substance on the cost of response activity at the site;
(3) The degree of care exercised in the disposal or treatment, or both of the hazardous substance by each party that may be liable under section 128D-6;
(4) The manner in which the site was operated and the degree of care exercised by the owner or operator;
(5) The degree of a party's involvement in site operations;
(6) Whether all applicable permits and licenses required by law were obtained and complied with;
(7) The degree to which the party cooperated with federal, state, or local officials to prevent, minimize, respond to, or remedy the release or threat of release; and
(8) Any other aggravating or mitigating factor that the environmental court determines to be relevant.
(h) If the environmental court finds the evidence insufficient to establish each party's portion of the costs or expenditures under subsection (f), the environmental court shall apportion those costs or expenditures, to the extent practicable, according to equitable principles, among the parties.
(i) Any costs or expenditures required by this chapter made by a liable party shall be credited toward the party's apportioned share. Costs shall include reasonable attorney's fees. [L 1991, c 280, pt of §1; am L 2014, c 218, §8]