TITLE 23
Health and Safety

CHAPTER 23-19.1
Hazardous Waste Management

SECTION 23-19.1-18.1


§ 23-19.1-18.1 Determination of restoration costs – Judgment – Other relief not precluded.

(a) In any case where the court is of the opinion that the sentence should consist of or include the amount of the cost of restoring to its original state the area where hazardous wastes were stored, treated, or disposed of in violation of the provisions of this chapter, the court shall order a hearing to determine the amount of the cost of the restoration. For the purposes of this section, the "original state of the area" means the reasonably ascertainable condition of the property immediately prior to the unlawful storage, treatment, or disposal, or, if impracticable to determine the condition, then it shall be the reasonable environmentally sound condition of the property. The order must be filed with the clerk of the court and must specify a date for the hearing not less than ten (10) days after the filing of the order.

(b) Upon receipt of the order, the clerk of the court must send a notice of the hearing to the defendant, the defendant's legal counsel, and the attorney general. The notice must specify the time and place of the hearing and the fact that the purpose of the hearing is to determine the amount of the cost of restoring to its original state the area where hazardous wastes were stored, treated, or disposed unlawfully.

(c) When the defendant appears for the hearing, the court must ask the defendant whether he or she wishes to make any statement or offer any evidence with respect to the amount of the cost of restoring to its original state the area where hazardous wastes were stored, treated, or disposed unlawfully.

(d) At any hearing held pursuant to this section, the burden of proof rests upon the state, which shall be represented by the attorney general. A finding as to the amount of the cost of restoring to its original state the area where hazardous wastes were stored, treated, or disposed unlawfully must be based upon a preponderance of the evidence. The defendant shall be permitted to rebut any evidence offered by the state.

(e) In all cases, the court shall enter its findings and judgment upon the record at the conclusion of the hearing.

(f)(1) The judgment may require the defendant to pay an amount for the restoration of the property or to perform duties of restoration or both. Where the cost of restoration cannot be wholly determined by the evidence, the court may order the defendant to pay an amount that reasonably approximates the total cost of restoration or may require the defendant to finance the restoration without a determination as to amount.

(2) When the court orders the defendant to pay an amount for the restoration of the property, the amount shall be paid to the department of environmental management and shall be used exclusively by the department of environmental management for the restoration of the property.

(3) Where the court orders the defendant to perform duties of restoration to the property, the court may authorize the department of environmental management to supervise and report to it on the conduct of the duties.

(4) In order to most likely assure the restoration of the property, where there are two or more defendants, the court may apportion the costs or assign the performance of duties of restoration, or both, between or among the defendants as the interests of justice may appear to the court.

(5) Defendants may be ordered by the court to reimburse the state for any administrative costs incurred by the state or its agents in conjunction with restoration work.

(g) The provisions of this section shall not preclude the state or attorney general or the department of environmental management from seeking any other relief authorized by other statute or common law.

History of Section.
(P.L. 1982, ch. 337, § 2; P.L. 1984, ch. 403, § 1.)