B. who accepts a hazardous substance for transport to such a facility and has
reasonable grounds to believe that such a facility is not operated in accordance
with Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901 et seq.,
as Amended and programs appropriately delegated under RCRA; and
(5) Any person who both sells a hazardous substance and is responsible for written
instructions for its use if:
A. the substance is used according to the instructions; and
B. the use constitutes a release for which remedial action is required at the facility.
(b) Each person who is liable under this Section is strictly liable, jointly and severally, for all remedial
action costs and for all natural resource damages resulting from the releases or threatened
releases of hazardous substances.
(1) The Tribal Attorney at the request of the Department, is empowered to recover all costs
and damages from persons liable therefore.
(c) The following persons are not liable under this Section:
(1) Any person who can establish that the release or threatened release of a hazardous
substance for which the person would be otherwise responsible was caused solely by:
A. An act of God;
B. An act of war; or
C. An act or omission of a third party (including but not limited to a trespasser)
other than:
(2) An employee or agent of the person asserting the defense, or
(3) Any person whose act or omission occurs in connection with a contractual relationship
existing, directly or indirectly, with the person asserting this defense to liability.
A. This defense only applies where the person asserting the defense has exercised
the utmost care with respect to the hazardous substance, the foreseeable acts
or omissions of the third party, and the foreseeable consequences of those acts
or omissions;
(4) Any person who is an owner, past owner, or purchaser of a facility and who can
establish by a preponderance of the evidence that at the time the facility was acquired
by the person, the person had no knowledge or reason to know that any hazardous
substance, the release or threatened release of which has resulted in or contributed to
the need for the remedial action, was released or disposed of on, in, or at the facility.
This Section is limited as follows:
A. To establish that a person had no reason to know, the person must have
undertaken, at the time of acquisition, all appropriate inquiry into the previous
ownership and uses of the property, consistent with good commercial or
customary practice in an effort to minimize liability.
i.
Any court interpreting Section 34-1.05(c)(4) shall take into account any
specialized knowledge or experience on the part of the person, the
relationship of the purchase price to the value of the property if
uncontaminated, commonly known or reasonably ascertainable
information about the property, the obviousness of the presence or
likely presence of contamination at the property, and the ability to
detect such contamination by appropriate inspection;
B. The defense contained in Section 34-1.05(c)(4) is not available to any person
who had actual knowledge of the release or threatened release of a hazardous
substance when the person owned the real property and who subsequently
transferred ownership of the property without first disclosing such knowledge to
the transferee;
C. The defense contained in Section 34-1.05(c)42) is not available to any person
who, by any act or omission, caused or contributed to the release or threatened
release of a hazardous substance at the facility;
276
Revised Spokane Law & Order Code, 5/14/2013