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(A) No liability shall be incurred for a person otherwise liable if that person can establish by clear and convincing evidence that the release or substantial threat of release of a hazardous substance and the damages resulting therefrom were caused solely by:
(1) An act of God;
(2) An act of war;
(3) An act or omission of a third party, other than an employee or agent of the defendant, or other than one whose act or omission occurs in connection with a contractual relationship existing directly or indirectly with the defendant (except where the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail), if the defendant establishes by clear and convincing evidence that:
(a) He or she exercised due care with respect to the hazardous substances concerned, taking into consideration the characteristics of the hazardous substances, in light of all relevant facts and circumstances; and
(b) He or she took precautions against foreseeable acts or omissions of any third party and the consequences that could foreseeably result from such acts or omissions.
(4) Any combination of the foregoing.
(B) Persons who are otherwise liable under this subchapter bear the burden of showing that the damages resulting from the release or substantial threat of release of a hazardous substance were caused solely by one or more of the defenses set forth herein.
(Ord. 638, passed 1-2-2001)