68-212-207 - Liability for costs, expenditures, and damages. - Tennessee Statutes

68-212-207. Liability for costs, expenditures, and damages.

(a)  Whenever a hazardous substance site is placed on the list of hazardous substance sites pursuant to § 68-212-206(e), or whenever the commissioner otherwise begins to expend money for the investigation, identification, containment or clean-up of a particular site under this part, the commissioner may issue an order to any liable party assessing that party's apportioned share of all costs expended or to be expended.

(b)  (1)  In assessing a party's apportioned share, the commissioner may consider equitable factors, including, but not limited to, the following:

          (A)  Any monetary or other benefit accruing to each liable party from the disposal of hazardous substances upon the site;

          (B)  The culpability of each liable party in placing hazardous substances upon the site;

          (C)  Efforts of each liable party to restore the land, water, air and all other aspects of the site to its natural condition;

          (D)  Any expenditures required by the provisions of this part made by a liable party shall be credited toward that party's share of the cost;

          (E)  The party's portion of the total volume of hazardous substances at the hazardous substance site;

          (F)  The monetary benefit accruing to an owner as a result of the clean up of the site if, at the time of acquisition of the site, such owner knew or should have known that hazardous substances were previously disposed of at the site; and

          (G)  The monetary benefit accruing to an owner as a result of the clean-up of the site if such owner was the owner at the time hazardous substances were disposed of on the property and knew or should have known of such disposal.

     (2)  Any person against whom an assessment is issued may secure a review of the propriety or amount of such assessment by filing with the commissioner a written petition setting forth the grounds and reasons for the objection and asking for a hearing before the solid waste disposal control board. Any such assessment shall become final and not subject to review unless the person named therein files such a petition within thirty (30) days after it is received.

     (3)  In no event shall the total moneys recovered from the liable party or parties exceed the total expenditure from the fund for such site, except that the commissioner may recover punitive damages as provided in subsection (c).

     (4)  Any party found liable for any costs or expenditures recoverable under this part who establishes by a preponderance of the evidence that only a portion of such costs or expenditures are attributable to such party's actions shall be required to pay only for such portion.

     (5)  The fund shall pay any portion of the total expenditure in excess of the aggregate amount of costs or expenditures apportioned pursuant to this section. All moneys recovered from liable parties pursuant to this section shall be deposited in the fund.

(c)  Any liable party who fails without sufficient cause to properly provide for removal of hazardous substances or remedial action upon order of the commissioner pursuant to this part may be liable to the state for punitive damages in an amount equal to one hundred fifty percent (150%) of the amount of any costs incurred by the fund as a result of such failure to take proper action. The commissioner shall recover the punitive damages in an action commenced under subsection (b) or in a separate civil action, and such punitive damages shall be in addition to any costs recovered from such liable party pursuant to this part. Any punitive damages awarded pursuant to this subsection shall be deposited in the fund.

(d)  No person shall be liable under this part for damages as a result of actions taken or omitted in the course of rendering care, assistance, or advice at the direction of an on-scene coordinator appointed by the commissioner, with respect to an incident creating a danger to public health or welfare or the environment as a result of any release of a hazardous substance or the threat thereof. This subsection shall not preclude liability for damages as the result of gross negligence or intentional misconduct on the part of such person. For the purposes of the preceding sentence, reckless, willful, or wanton misconduct constitutes gross negligence.

(e)  Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the federal government and the state government shall be subject to, and comply with, this part in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under this section.

(f)  No person, including the state, may recover under the authority of this section for any response costs or damages resulting from the application of a pesticide product registered under the Federal Insecticide, Fungicide, and Rodenticide Act.

[Acts 1983, ch. 423, § 7; 1986, ch. 644, §§ 15, 16; T.C.A., § 68-46-207; Acts 1994, ch. 890, § 10; 2007, ch. 362, §§ 20, 21.]