§ 49-292 — Settlement; authority and effect

A. The director shall consider any offer of settlement by a person that is potentially liable for remedial action costs under this article and CERCLA. The director shall consider the factors in section 49-282.06 and section 49-285, subsections E and F in determining whether to settle any person's liability. In determining the settlement amount, the director shall take into account any past costs incurred for remedial actions at the site by the person. Costs of remedial actions that are incurred by an eligible party as defined in section 49-281, that are or have been approved by the director pursuant to section 49-285, subsection B and that are conducted under the oversight of the director shall be used as a credit against that eligible party's liability. This section does not require the director to reimburse from the fund the orphan share of costs of approved remedial actions incurred by an eligible party before June 30, 1997. The director may enter into a settlement agreement or consent decree with a potentially responsible party or with a prospective purchaser or prospective remediator pursuant to section 49-285.01 without making an express finding in the settlement agreement or consent decree regarding an imminent and substantial endangerment to the public health or welfare, the waters of this state or the environment.

B. In any settlement agreement or consent decree entered into pursuant to subsection A of this section, the director may provide any potentially responsible party with a covenant not to sue concerning any liability to this state under this article or under CERCLA, including future liability that may result from a release or threat of a release of a hazardous substance addressed by a remedial action, whether that action is on site or off site. A covenant not to sue takes effect when the settlement agreement or consent decree becomes final. A covenant not to sue with respect to future liability shall include an exception that allows the director to sue the responsible party concerning future liability from the release or threatened release that is the subject of the covenant if the liability arises out of conditions that are unknown to the director at the time the director enters into the covenant. A covenant not to sue does not preclude the director from suing the potentially responsible party for failure to comply with the terms of the settlement agreement or consent decree in which the covenant was included.

C. A potentially responsible party that has resolved its liability to this state that arises from this article or from CERCLA in a judicially approved consent decree is not liable for claims for contribution or cost recovery regarding matters addressed in the consent decree. Any such judicially approved consent decree does not discharge other potentially responsible parties unless its terms so provide, but such a settlement does reduce the potential liability of other potentially responsible parties by the amount of the settlement. If a potentially responsible party receives an allocation pursuant to section 49-287.06 or 49-287.07 that is less than the amount the potentially responsible party agreed to pay this state pursuant to a settlement agreement or consent decree, the excess amount paid by the potentially responsible party shall be credited to the fund. Any payment by a potentially responsible party in excess of the allocation shall not reduce the proportionate liability of any other potentially responsible party.

D. If this state has obtained less than complete relief from a potentially responsible party that has resolved its liability to this state, this state may bring an action against any other potentially responsible party pursuant to section 49-287.07 that has not so resolved its liability.

E. A potentially responsible party that has resolved its liability to this state may seek contribution for matters addressed in the settlement from any person that is not a party to a settlement entered into under this section.

F. In any action under this section, the rights of any potentially responsible party that has resolved its liability to this state in a judicially approved consent decree or a settlement agreement are subordinate to the rights of this state for matters addressed in the settlement agreement or consent decree, unless otherwise provided in the settlement agreement or consent decree. If a potentially responsible party that has resolved its liability to this state in a settlement agreement or a consent decree provides written notice to the department that it has initiated a lawsuit to recover some or all of its remedial action costs from other potentially responsible parties, the department within thirty days shall provide written notice to the party filing the lawsuit of the department's intent to assert any superior claims the department may have against the other potentially responsible parties. If practicable, the written notice shall include the anticipated dollar amount of the department's claims against each party.

G. The court shall not approve a consent decree entered into pursuant to this section for a period of thirty days after the date that notice of the terms of the consent decree is provided to the public to allow for public comment. Any comment shall be filed with the court and a copy shall be sent by mail to the director and to the settling party. After the expiration of the thirty-day public comment period, the director through the attorney general may petition the court for entry of the consent order.

H. A person's decision to enter into a settlement agreement pursuant to this article is not an admission in any other judicial proceeding as to the fact or extent of that person's liability with respect to the releases or threatened releases that are covered by the settlement.