49-292

49-292. Settlement; authority and
effect

A. The director shall consider any offer of settlement by a person who 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. Nothing
in this section requires 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 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 the 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 who has resolved its liability to the 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 the 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 the state has obtained less than complete relief from a potentially
responsible party who has resolved its liability to the state, the state may bring an
action against any other potentially responsible party pursuant to section 49-287.07 who
has not so resolved its liability.

E. A potentially responsible party who has resolved its liability to the state may
seek contribution for matters addressed in the settlement from any person who 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 who has resolved its liability to the state in a judicially approved consent decree
or a settlement agreement are subordinate to the rights of the 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 who has
resolved its liability to the 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 shall not be construed as 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.