39-7112. COST RECOVERY AND CIVIL REMEDIES. (1) The military division shall be responsible for recovering those costs incurred by the state arising out of a hazardous substance incident identified in section 39-7109, Idaho Code, and other costs including processing the documented costs submitted by response agencies, attorney’s fees, investigation costs, prelitigation and litigation costs.

(2) In deciding whether to commence a cost recovery action, and against whom a cost recovery action will be filed, the military division in exercising its prosecutorial discretion will take into consideration the cause of the incident, the total amount of cost incurred in responding to the incident, the avoidability of the incident and such other factors as the military division deems appropriate.

(3) The remedy for the recovery of those emergency response costs identified in section 39-7109, Idaho Code, provided by this chapter shall be exclusive and shall not be used in conjunction with or in addition to any other remedy for recovery of such costs provided by applicable federal laws. Any person who receives compensation for the emergency response costs pursuant to any other federal or state law shall be precluded from recovering compensation for such costs pursuant to this chapter. Nothing in this chapter shall otherwise affect or modify in any way the obligations or liability of any person under any other provision of state or federal law, including common law, for damages, injury or loss resulting from the release of any hazardous substance or potentially hazardous substance or for remedial action or the cost of remedial action for such release.

(4) It shall be the duty of the attorney general to commence any civil action brought by the military division pursuant to this chapter. At the request of a political subdivision of the state or a local governmental entity who has responded to or contained a hazardous substance incident, the attorney general may commence a civil action on their behalf pursuant to this chapter.

(5) Any person who renders assistance at the request of the incident commander or his authorized designee in response to a hazardous substance incident may file a civil action under the provisions of this chapter for recoverable costs which have not been reimbursed by the state.

(6) There is hereby created in the state treasury the hazardous substance emergency response fund. Recoveries by the state for reimbursed costs shall be deposited in said fund to offset amounts paid as reimbursement.

History:

[39-7112, added 1991, ch. 242, sec. 1, p. 590; am. 1997, ch. 121, sec. 8, p. 364; am. 2004, ch. 181, sec. 1, p. 568; am. 2009, ch. 281, sec. 6, p. 848.]