40.18.030 Liability of Owners, Operators and Other Persons

Whenever the TM-TRP determines that the operation of a solid waste management facility or the collection or transportation of solid waste is causing or threatening to cause a release of a hazardous substance, contaminant or pollutant or a condition of hazard, pollution, or nuisance due to the migration of hazardous or solid waste, or for any other reason, TM-TRP may require the operator of the solid waste facility or the solid waste transporter to take corrective action necessary to abate any hazard, pollution, or nuisance or to protect public health and safety and the environment the owner or operator of the property or business may be held liable for all damages and costs associated with the assessment, investigation, cleanup, abatement, or remedial actions caused by such release or threat or release. However, an "innocent land owner", as defined below, is not liable for investigation, monitoring, remediation or other response action, or relates costs, regarding contamination attributable to a release, discharge or migration of contaminants on his property.

(a) Innocent Land Owner. For the purposes of this section "Innocent land owner" means a person who did not cause or contribute to the source of contamination and who is one (1) of the following:

(1) An owner of real property that has become contaminated as a result of a release or migration of contaminants from a source not located on or at the real property;

(2) An owner of real property who can show with respect to the property that the owner has no liability for contamination under section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9607(a), because the owner can show a defense as provided in section 107(b) of that act (42 U.S.C. 9607(b));

(3) An owner of real property who at the time of becoming the owner of the property, and after exercising due diligence, did not know or should not have reasonably known about the presence of contamination on the property;

(4) A lender or fiduciary who owns or holds a security interest in land, unless the lender or fiduciary participated in the management of a site at the time that the owner or operator thereof caused a release or migration of contaminants; or

(5) A unit of Tribal government which acquired ownership or control through bankruptcy, abandonment or other circumstances in which the government acquires title by virtue of its function as sovereign, unless the Tribal government agency contributed to the contamination.

(b) To be eligible for immunity under this section, such "innocent land owner" shall:

(1) Grant to the TM-TRP or to a person designated by the TM-TRP, reasonable access to the land for purposes of investigation, monitoring or remediation;

(2) Comply with any requirements established by the TM-TRP that are necessary to comply with federal grants or programs;

(3) Not use the real property in a manner that causes exposure of the public to harmful environmental conditions; and

(4) Comply with any Tribal engineering or institutional controls applicable to the real property.

(c) Any person who knowingly transfers, conveys or obtains an interest in land to avoid liability for contamination, remediation or compliance with any provision of this Act shall not be an innocent owner.

Notwithstanding the provisions of this section, an innocent land owner who undertakes a cleanup of his property must comply with all applicable provisions of this Act.