75-10-729. Restoration damages. (1) Except as provided in subsections (2) and (3), this section applies to civil claims brought in judicial proceedings on behalf of individuals and entities for the recovery of restoration damages to address impacts to real property caused by releases of hazardous or deleterious substances.

(2) Restoration damages may be awarded only for a claim alleging contamination of special use property and may be obtained only in accordance with the definitions and other requirements set forth in this section. The plaintiff bears the burden of proof to show that the property meets the definition of special use property.

(3) Restoration damages may not be awarded or used to alter an interim or final remedial action that has been or will be undertaken on, or will benefit, a special use property pursuant to any of the following authorities:

(a) a federal administrative order issued pursuant to 42 U.S.C. 9601, et seq., as of March 27, 2021;

(b) a state administrative order issued pursuant to this part;

(c) a judicially approved consent decree; or

(d) any other interim or final remedial action plan approved by the department pursuant to state statutory or administrative law.

(4) (a) Restoration damages awarded pursuant to subsection (2), exclusive of awards of attorney fees and costs, may be used only to conduct remedial and corrective action necessary to restore the special use property for which the damages were awarded. Restoration must commence within 3 years from the date the judgment is paid or settlement proceeds are received.

(b) If any awarded restoration damages remain after completion of the restoration work, the surplus must be refunded to the defendant. If the defendant is no longer viable or cannot be found, the funds must be remitted to the department.

(5) Any party may request that a court awarding restoration damages also order that those damages be deposited in a segregated trust or escrow account at a commercial bank or trust company to ensure compliance with subsection (4)(a). The plaintiff may create a trust or escrow account to be overseen by a qualified professional to restore the special use property.

(6) Nothing in this section precludes the award of other damages allowed under common law and statute.

(7) As used in this section, the following definitions apply:

(a) "Qualified professional" means a person who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to design and oversee implementation of a restoration plan.

(b) "Restoration damages" means the amount of compensation determined reasonably necessary by a trier of fact to restore a contaminated special use property to its function, use, or condition prior to the contamination on which a civil claim is based, unless contamination was present at the time the plaintiff acquired the special use property, in which case the term means the amount of compensation determined necessary by a trier of fact to restore a contaminated special use property to the function, use, or condition that existed at the time the plaintiff acquired the special use property.

(c) "Special use property" means real property contaminated by a release of a hazardous or deleterious substance that is found by a trier of fact to have objectively reasonable personal value to the plaintiff not reflected in the market value of the property or to have unique public, historic, cultural, or religious value not reflected in the market value of the property.