H.B. 176

1

POLLUTION LIEN FOR COST RECOVERY
2 1997 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Marda Dillree
5 AN ACT RELATING TO HEALTH AND ENVIRONMENT; ALLOWING THE
6 DEPARTMENT OF ENVIRONMENTAL QUALITY TO IMPOSE A LIEN ON A FACILITY
7 OR SITE TO RECOVER FROM RESPONSIBLE PARTIES MONEY SPENT IN AN
8 INVESTIGATION AND ABATEMENT OF A RELEASE OF HAZARDOUS MATERIALS;
9 PROVIDING PROCEDURES FOR PERFECTION OF THE LIEN; AND PROVIDING
10 WHEN THE PROVISIONS TAKE EFFECT.
11 This act affects sections of Utah Code Annotated 1953 as follows:
12 ENACTS:
13 19-6-310.5, Utah Code Annotated 1953
14 19-6-428, Utah Code Annotated 1953
15 Be it enacted by the Legislature of the state of Utah:
16 Section 1. Section 19-6-310.5 is enacted to read:
17 19-6-310.5. State authority to impose lien to recover mitigation fund spent on facility
18 -- Liability of responsible parties.
19 (1 ) As used in this section:
20 (a) "Action" means an abatement or remedial action authorized by Subsection 19-6-309(1),
21 Section 19-6-314, or Section 19-6-315.
22 (b) "Fund" means the Hazardous Substances Mitigation Fund created under Section
23 19-6-307.
24 (2) (a) The executive director may impose a lien as provided in this section on real
25 property and fixtures of a facility that is the subject of an action.
26 (b) When the executive director begins to expend fund money on an action, the executive
27 director may record a notice of intent to impose a lien with the office of the county recorder for

1 the county where the facility is located.
2 (c) The executive director shall provide written notice of the recording of the notice of
3 intent to impose a lien by certified or registered mail to all persons of record holding an interest
4 in the real property or fixtures of the facility.
5 (d) Any person holding an interest in the real property or fixtures of the facility may
6 contest the recording of the notice of intent to impose a lien under the hearing procedures of Title
7 63, Chapter 46b, Administrative Procedures Act.
8 (e) (i) When a notice of intent to impose a lien has been recorded, upon completion of the
9 action the executive director shall record a notice of completion.
10 (ii) If the executive director terminates the action prior to its completion, the executive
11 director shall record a notice of withdrawal of the notice of intent to impose a lien with the office
12 of the county recorder of the county where the facility is located. The notice of withdrawal shall
13 include a cross reference to the notice of intent, including the date the notice of intent was filed.
14 (3) To perfect a lien under this section the executive director shall:
15 (a) record a notice of intent to impose a lien under Subsection (2); and
16 (b) within 30 days after completion of the action, record a notice of lien with the county
17 recorder of the county where the facility is located, stating:
18 (i) the final amount expended by the executive director from the fund on the action and
19 the amount of the lien;
20 (ii) the name of each person holding an interest of record in any of the real property or
21 fixtures of the facility;
22 (iii) the address of the facility;
23 (iv) a legal description of the real property and physical description of the fixtures
24 sufficient to identify them;
25 (v) the date of recording of the notice of lien and identification of the book and page
26 number of the recording of the notice of intent to impose a lien;
27 (vi) the identification number of the facility site, if the department has assigned a number;
28 and
29 (vii) the name, signature, and address of the executive director.
30 (4) The executive director shall provide written notice of the lien by certified or registered
31 mail to all persons of record holding an interest in the real property or fixtures of the facility.

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1 (5) A lien perfected under this section relates back to, and takes effect on and after the date
2 and time of recording of the notice of intent to impose a lien under Subsection (2) and has priority
3 over:
4 (a) any lien, mortgage, or other encumbrance which may have attached subsequently to
5 the date and time the notice of intent to impose a lien was recorded; and
6 (b) any lien, mortgage, or other encumbrance of which the state had no notice and which
7 was unrecorded when the notice of intent to impose a lien was recorded.
8 (6) The lien against the real property and fixtures of a facility of a responsible party shall
9 be for the costs expended at the facility from the fund to the extent liability is allocated by
10 Subsections 19-6-310(2) and 19-6-316(2).
11 (7) A lien or notice of intent to impose a lien may not be imposed against the real property
12 and fixtures of a facility of a person who is not liable for an apportioned share under Subsections
13 19-6-310(2) and 19-6-316(2).
14 (8) If a party holding an interest of record is aggrieved by the amount of the lien, the party
15 may:
16 (a) submit the matter in any foreclosure proceeding under this section or apportionment
17 of liability proceeding under Subsection 19-6-310(2) or 19-6-316(2); or
18 (b) file a complaint in the district court challenging the imposition and amount of the lien.
19 (9) (a) Any action for the foreclosure of the lien shall be brought by the state attorney
20 general within one year after the date the lien is perfected. The action shall be brought in the name
21 of the state, and in the district court of the county where the facility subject to the lien is located,
22 or the lien expires.
23 (b) The state attorney general may separately bring enforcement, apportionment, or cost
24 recovery actions against responsible parties without first foreclosing on the lien.
25 (10) A lien may not be imposed under this section on property and fixtures of the facility
26 which are only contaminated by an offsite release unless the person who owns the facility has
27 taken actions which exacerbate the release.
28 (11) This section does not prohibit the executive director from issuing a partial or full
29 release of the lien pursuant to a negotiated agreement.
30 (12) Recording of notices or documents under this section shall be accompanied by any
31 fees required under Section 21-2-3.

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1 (13) This section affects and may be applied to only those actions initiated on and after
2 May 5, 1997.
3 Section 2. Section 19-6-428 is enacted to read:
4 19-6-428. State authority to impose lien to recover funds spent on investigation and
5 cleanup of petroleum releases -- Liability of responsible parties.
6 (1) As used in this section:
7 (a) "Action" means an investigative, abatement, or corrective action for which an
8 appropriation has been made pursuant to Subsection 19-6-409(5)(b) or for a federal LUST Trust
9 site specific project.
10 (b) "Site" means a location where a regulated substance has been released.
11 (2) (a) The executive secretary may impose a lien as provided in this section on real
12 property and fixtures of a site that is the subject of an action.
13 (b) When the executive secretary begins to expend money on an action, the executive
14 secretary may record a notice of intent to impose a lien with the office of the county recorder for
15 the county where the site is located.
16 (c) The executive secretary shall provide written notice of the recording of the notice of
17 intent to impose a lien by certified or registered mail to all persons of record holding an interest
18 in the real property or fixtures of the site.
19 (d) Any person holding an interest in the real property or fixtures of the site may contest
20 the recording of the notice of intent to impose a lien under the hearing procedures of Title 63,
21 Chapter 46b, Administrative Procedures Act.
22 (e) (i) When a notice of intent to impose a lien has been recorded, upon completion of the
23 action at the site the executive secretary shall record a notice of completion.
24 (ii) If the executive secretary terminates the action prior to its completion, the executive
25 secretary shall record a notice of withdrawal of the notice of intent to impose a lien with the office
26 of the county recorder for the county where the site is located. The notice of withdrawal shall
27 include a cross reference to the notice of intent, including the date the notice of intent was filed.
28 (3) To perfect a lien under this section the executive secretary shall:
29 (a) record a notice of intent to impose a lien under Subsection (2); and
30 (b) within 30 days after completion of the action, record a notice of lien with the county
31 recorder of the county where the site is located, stating:

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1 (i) the final amount expended by the executive secretary as authorized under Subsection
2 19-6-409(5)(b) on the action and the amount of the lien;
3 (ii) the name of each person holding an interest of record in any of the real property or
4 fixtures of the site;
5 (iii) the address of the site;
6 (iv) a legal description of the real property and physical description of the fixtures
7 sufficient to identify them;
8 (v) the date of recording of the notice of lien and identification of the book and page
9 number of the recording of the notice of intent to record a lien;
10 (vi) the identification number of the facility site, if the department has assigned number;
11 and
12 (vii) the name, signature, and address of the executive secretary.
13 (4) The executive secretary shall provide written notice of the lien, by certified or
14 registered mail, to all persons of record holding an interest in the real property or fixtures of the
15 site.
16 (5) A lien perfected under this section relates back to and takes effect on and after the date
17 and time of the recording of the notice of intent to impose a lien under Subsection (2) and has
18 priority over:
19 (a) any lien, mortgage, or other encumbrance which may have attached subsequently to
20 the date and time when the notice of intent to impose the lien was recorded; and
21 (b) any lien, mortgage, or other encumbrance of which the state had no notice and which
22 was unrecorded when the notice of intent to impose a lien was recorded.
23 (6) The lien against the real property and fixtures of a responsible party shall be for the
24 costs expended at the site to the extent liability is allocated by Section 19-6-424.5.
25 (7) A lien or notice of intent to impose a lien may not be imposed against the real property
26 and fixtures of a site of a person who is not liable for an apportioned share under Section
27 19-6-424.5.
28 (8) If a party holding an interest of record is aggrieved by the amount of the lien, the party
29 may:
30 (a) submit the matter in any foreclosure proceeding under this section or apportionment
31 of liability proceeding under Section 19-6-424.5; or

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1 (b) file a complaint in the district court challenging the imposition and amount of the lien.
2 (9) (a) Any action for the foreclosure of the lien shall be brought by the state attorney
3 general within one year of the date the lien is perfected. The action shall be brought in the name
4 of the state in the district court of the county in which the site subject to the lien is located or the
5 lien expires.
6 (b) The state attorney general may separately bring enforcement, apportionment, or cost
7 recovery actions against responsible parties without first foreclosing on the lien.
8 (10) A lien may not be imposed under this section on real property and fixtures of a site
9 which is only contaminated by an offsite release unless the person who owns the site has taken
10 actions which exacerbate the release.
11 (11) This section does not prohibit the executive secretary from issuing a partial or full
12 release of the lien pursuant to a negotiated agreement.
13 (12) Recording of notices or documents under this section shall be accompanied by any
14 fees required under Section 21-2-3.
15 (13) This section affects and may be applied to only those actions initiated on and after
16 May 5, 1997.




Legislative Review Note
as of 12-10-96 9:44 AM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

Committee Note

The Health and Environment Interim Committee recommended this bill.

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