There shall be no liability under § 98.23 for a person otherwise liable who can establish by a preponderance of the evidence that the release or substantial threat of release of a hazardous material and the damages resulting therefrom were caused solely by:
(A) An act of nature over which he or she had no control;
(B) An act of war;
(C) An act or omission of a third party, other than his or her employee or agent, or other than one whose act or omission occurs in connection with a contractual relationship existing directly or indirectly with him or her (except where the sole contractual agreement arises from a published tariff and acceptance for carriage by a common carrier by rail), if it establishes, by a preponderance of the evidence, that:
(1) He or she exercised due care with respect to the hazardous materials concerned, taking into consideration the characteristics of the hazardous material, in light of all relevant facts and circumstances; and
(2) He or she took precautions against foreseeable acts or omissions or any third party and the consequences that could foreseeably result from the acts or omissions.
(D) Any combination of the foregoing.
(Ord. 1492, passed 6-6-1992)