49-292.01. Qualified business settlements; definition

A. The director shall enter into a settlement under this article and section 107 of CERCLA with a person that qualifies pursuant to this section without regard to the extent of its liability except for a person whose liability under this article arose from criminal acts.

B. An applicant seeking settlement under this section shall have identifiable gross income as defined in section 61 of the internal revenue code greater than one dollar in each of the two years prior to the application and in each of the two years preceding the year that an investigation of the applicant's share was initiated by either the department or the United States environmental protection agency. The applicant shall submit a letter to the director requesting a qualified business settlement on a form provided by the director. The request letter shall include the applicant's tax returns for the time periods provided in subsection J of this section. The director may require additional information to verify the applicant's eligibility for a settlement under this section. Financial information submitted by the applicant pursuant to this section and marked " confidential" shall be kept confidential by the director.

C. If the director verifies that the applicant meets the definition of a qualified business, the director shall enter into a settlement within ninety days after receipt of the request letter and other information required under this section. The settlement shall meet the requirements of section 49-292, but without regard to the extent of its liability, and shall require that:

1. The qualified business pay ten per cent of its average annual gross income for the two years preceding the year that a request was submitted by the applicant including the income from money or assets transferred by the applicant within the two years preceding the application. The director shall allow the settlement amount to be paid over time, up to a maximum of ten years, subject to payment of interest at the rate of six per cent per year. If the settlement amount is paid in full within the first five years, the payments shall not be subject to the payment of interest. An applicant may file a petition with the director to modify the payment schedule.

2. The qualified business cooperate with the director in providing reasonable access and information necessary for the director to carry out the requirements of this article.

D. Notice of the settlement shall be published as provided in section 49-292. The notice shall provide a general description of the contents of the agreement. Any interested person may comment on whether the applicant is a qualified business in writing to the director. The director may withdraw from a settlement after considering the comments.

E. If the director determines that the business does not qualify for the qualified business settlement pursuant to this section, the director shall notify the applicant in writing within ninety days of the receipt of all information required under subsection B of this section stating the reasons for denial. If the director does not notify the applicant within ninety days, the application is deemed denied. A denial of a settlement under this section may be appealed to the office of administrative hearings pursuant to section 49-298. In any appeal made pursuant to section 49-298, the documents submitted by the applicant under subsection B of this section are not confidential.

F. In reviewing a proposed settlement, the United States district court or superior court shall give deference to the department's determination that the settlement is in the public interest and meets applicable legal standards for court approval. Any person who challenges a proposed settlement bears the burden of proving that the proposed settlement does not meet applicable legal standards for court approval. If a settlement is reached with an applicant, the confidential information supplied to the director under this section may be submitted under seal to the court for in camera review.

G. In determining the applicant's gross income for purposes of determining eligibility pursuant to subsection J of this section, the income of all concerns in which the applicant maintains ownership, control or management may be considered by the director. Any transfer of money or assets by the applicant within the two years preceding the application shall be presumed void for purposes of determining eligibility under this section. This presumption may be rebutted by the applicant if the applicant submits a written presumption rebuttal statement that includes the reasons why the transfer of money or assets within this time period should not be presumed void for purposes of determining eligibility. The department shall consider this statement and provide a written record of decision to the applicant that either affirms or denies the applicant's reasons provided in the presumption rebuttal statement.

H. The director may adopt rules to implement this section. A settlement under this section applies only to the applicant and does not release or affect in any way the liability of any other person.

I. If a settlement is made pursuant to this section, the director shall not file a lien pursuant to section 49-295 for an amount greater than the settlement.

J. For the purposes of this section, " qualified business" means an applicant who meets both of the following conditions:

1. The applicant's gross income as defined by section 61 of the internal revenue service code is less than two million dollars per year and greater than one dollar per year.

2. The applicant complies with the definition for the average of the two years preceding the year that an investigation of the applicant's share was initiated by either the department or the United States environmental protection agency, and for each of the two years preceding the year that a request was submitted by the applicant pursuant to subsection B of this section.

If a person does not qualify as a qualified business under this section, the person is eligible to settle its liability under this article and section 107 of CERCLA for less than its proportionate share under section 49-285 on a demonstration of financial hardship under section 49-292.02.