§2276. Finding of liability by the court

A. The court shall find the defendant liable to the state for the costs of remedial action taken because of an actual or potential discharge or disposal which may present an imminent and substantial endangerment to health or the environment at a pollution source or facility, if the court finds that the defendant performed any of the following:

(1) Was a generator who generated a hazardous substance which was disposed of or discharged at the pollution source or facility.

(2) Was a transporter who transported a hazardous substance which was disposed of or discharged at the pollution source or facility.

(3) Was a disposer who disposed of or discharged a hazardous substance or hazardous waste at the pollution source or facility.

(4) Contracted with a person for transportation or disposal at the pollution source or facility.

(5) Is or was the owner or operator of the pollution source or facility subsequent to the disposal of hazardous waste.

B. The court does not have to find that the defendant was negligent, knew that the hazardous substance was being improperly disposed of, or that the activity was illegal at the time of disposal.

C. The defendant shall be responsible for his proportionate contribution to the remedial costs as defined in this Chapter.

D. The liability of the defendants shall be limited to those costs which can be calculated by the court upon presentation of evidence.

E. After an administrative determination of the cleanup cost, legal interest shall run on such amount. In addition thereto the court shall hold a nonparticipating party liable for a penalty of three times that party's share of the remedial cost if the court determines that the failure of the nonparticipating party to respond to the administrative determination or court proceeding was without sufficient cause. Nothing in this Section shall be construed to relieve the imposition of solidary liability otherwise provided for in this Chapter. The court may order any penalties provided by this Subtitle or as provided in this Chapter.

F. All persons who have generated a hazardous substance disposed of at the site, transported a hazardous substance to the pollution source or facility, contracted to have a hazardous substance transported to the pollution source or facility, or disposed of a hazardous substance at the pollution source or facility shall be presumed to be liable in solido by the court for the cleanup of the site unless a party shows by a preponderance of the evidence that the costs of remediation should be apportioned and there is a reasonable basis for determining the amount of the contribution of each party to the discharge or disposal, however, any party shall have the right to establish his proportionate contribution to the site and his liability shall be limited to his degree of contribution.

G.(1) In furtherance of the purpose of R.S. 30:2275, those participating parties who, after an initial demand is made by the secretary under R.S. 30:2275, agree to clean up the pollution source or facility may, without the institution of a suit by the secretary under R.S. 30:2275, sue and recover from any other nonparticipating party who shall be liable for twice their portion of the remedial costs. The plan for remedial action of the pollution source or facility shall be subject to approval by the secretary upon request by the participating parties. The secretary shall act as expeditiously as possible in approving the plan proposed by the participating parties. Prior to any suit by a participating party for recovery of their portion of the remedial costs, the participating party shall make a written demand on any nonparticipating party they intend to sue requesting payment of that portion the nonparticipating party would be liable for if he participated.

(2) In the event the United States Environmental Protection Agency is the lead governmental agency with regard to a remedial action at a pollution source or facility containing a hazardous substance as defined by R.S. 30:2272(4), and an initial demand for remediation is made to a party, then if said party agrees to clean up the pollution source or facility he may, without the institution of a suit by the secretary or the United States Environmental Protection Agency, sue and recover from any other responsible party who has received a demand but refused to participate, which responsible party shall be liable for twice their portion of the remedial costs. Prior to any suit by a party who has agreed to participate in the remedial action for recovery of their portion of the remedial costs, said party shall make a written demand on any responsible party, who has refused to participate, that they intend to sue requesting payment of that portion of the remedial costs that the party would be liable for if he had participated.

(3) In furtherance of the purpose of this Chapter, a person who has incurred remedial costs in responding to a discharge or disposal of a substance covered by this Chapter, without the need for an initial demand by the secretary, may sue and recover such remedial costs as defined in R.S. 30:2272(9) from any person found by a court to have performed any of the activities listed in Subsection A if the plan for remedial action was approved by the secretary in advance or, if an emergency, the secretary was notified without unreasonable delay and the secretary accepts the plan thereafter. An action by a person other than the secretary shall not be barred by the failure of the secretary to demand participation in the remediation. Such action shall be barred if the plaintiff does not make written demand on the defendant by certified mail, return receipt requested, at least sixty days prior to initiation of suit based on the cause of action provided in this Subsection.

H.(1) No action shall be commenced under this Chapter unless it is commenced within ten years from the date of the discovery of the disposal or discharge for which remedial action must be undertaken or three years from the date the secretary issues an order requiring remedial action to be undertaken, whichever comes later.

(2) Notwithstanding any other provision of the law to the contrary, however, any action arising under this Chapter which is not prescribed on September 1, 1991, may be commenced within ten years from September 1, 1991.

I. Nothing in this Chapter shall bar a cause of action that an owner or operator or any other person subject to liability under this Section or a guarantor has or would have by reason of indemnification, subrogation, or otherwise against any person.

Acts 1984, No. 791, §1; Acts 1986, No. 306, §1, eff. June 30, 1986; Acts 1988, No. 624, §1; Acts 1990, No. 1020, §1; Acts 1991, No. 249, §1, eff. Sept. 1, 1991; Acts 1993, No. 986, §1, eff. June 25, 1993.