2006 New Mexico Statutes - Section 74-9-34 — Liability; defenses; indemnification.

74-9-34. Liability; defenses; indemnification.

A.     As used in this section:   

(1)     "generator" means the United States or a state, including New Mexico, or any agency, department, instrumentality, office, institution or political subdivision of a state in which any solid waste disposed of in a solid waste facility in New Mexico originated;   

(2)     "responsible party" means any person other than a generator upon whom liability is imposed under Subsection B of this section; and   

(3)     "costs" means the costs of removal or remedial action incurred by this state or any of its counties or municipalities because of a release or threatened release of contaminants from a solid waste facility that results in the incurring of those costs by the specified governmental entity.   

B.     The following persons shall be strictly liable for costs:   

(1)     the owner of the solid waste facility;   

(2)     the operator of the solid waste facility;   

(3)     any person:   

(a)     having a permit issued under the Solid Waste Act;   

(b)     having a permit for solid waste disposal issued under the Environmental Improvement Act [Chapter 74, Article 1 NMSA 1978]; or   

(c)     otherwise authorized to accept solid waste for disposal or transformation under regulations adopted by the board under the Environmental Improvement Act;   

(4)     any person who, at the time of disposal of any solid waste in the solid waste facility, owned, operated or had a permit or registration certificate to operate the solid waste facility;   

(5)     any person who by agreement or otherwise arranged for disposal or treatment or transportation for disposal or treatment of solid waste owned or possessed by that person and disposed of in the solid waste facility;   

(6)     any person who accepted any solid waste for transport to the solid waste facility; and   

(7)     any generator.   

C.     A person otherwise liable under Subsection B of this section shall not be liable if he can establish by a preponderance of the evidence that:   

(1)     the release of contaminants and the damages resulting therefrom were caused solely by an act of God or an act of war; or   

(2)     he is an owner who:   

(a)     at the time he acquired the property, did not know and had no reason to know that the property had been used for a solid waste facility;   

(b)     is a governmental entity that acquired the property by escheat, or through any other involuntary transfer or acquisition, or through the exercise of eminent domain authority; or   

(c)     acquired the property by inheritance or devise.   

D.     If any responsible party that is liable for a release or threatened release fails without sufficient cause to properly provide removal or remedial action upon order of the director, that person shall be liable to the state or the appropriate political subdivision for punitive damages in an amount at least equal to, and not more than three times the amount of, any costs incurred as a result of the failure to take proper action.  The director is authorized to commence a civil action against any such person to recover the damages, which shall be in addition to any costs recovered from the  person. Any amounts received by the state or the appropriate political subdivision pursuant to this subsection shall be deposited in the solid waste facility grant fund.   

E.     The court, in accordance with equitable principles, shall apportion an award of costs or damages, or both, among defendants found liable under this section.   

F.     No state agency or political subdivision shall be liable under this section for costs or damages as a result of its actions taken in response to an emergency created by the release or threatened release by or from a solid waste facility owned by another person.   

G.     No indemnification or similar agreement shall be effective to transfer from the owner or operator of any solid waste facility, or from any person who may be liable for a release or threatened release under this section, to any other person the liability imposed under this section.  Nothing in this subsection bars any agreement to insure, hold harmless or indemnify a party to that agreement for any liability under this section.   

H.     Nothing in this section bars or replaces any cause of action available to any person that existed before its enactment. The causes of action of this section are supplemental to existing causes of action.