75-10-719. Settlement -- bar to contribution liability. (1) A person who has resolved that person's liability to the state arising under 75-10-715 or section 107(a)(1) through (a)(4) of CERCLA, 42 U.S.C. 9607(a)(1) through (a)(4), in an administrative or judicially approved settlement is not liable for claims for contribution regarding matters addressed in the settlement. The settlement does not discharge any of the other potentially liable persons unless its terms provide a discharge. The terms of the settlement may reduce the potential liability of the other potentially liable persons by the amount of the settlement.

(2) If the state has obtained less than complete relief from a person who has resolved that person's liability to the state in an administrative or judicially approved settlement, the state may bring an action against any other person who has not resolved that person's liability.

(3) A person who has resolved, in whole or in part, that person's liability to the state for the release or for remedial action costs in an administrative or judicially approved settlement may seek contribution from a person who is not party to a settlement referred to in subsection (1).

(4) Whenever practicable and in the public interest, as determined by the director of the department, the department may, as promptly as possible, reach a final settlement with a potentially liable or liable person under 75-10-715 in an administrative or civil action under 75-10-711 if the settlement involves only a minor portion of the remedial action costs at the facility concerned and, in the judgment of the department, taking into account the toxicity of the hazardous or deleterious substances involved and the person's contribution of hazardous or deleterious substances in relation to the total volume of hazardous or deleterious substances at the facility, the conditions in any of the following subsections (4)(a) through (4)(d) are met:

(a) the person is one whose liability is based solely on 75-10-715(1)(c) or (1)(d) and who presents substantial credible evidence that the person contributed less than 0.002% of the total volume or less than 100 gallons or 200 pounds of materials containing hazardous or deleterious substances at a facility that received hazardous or deleterious substances from multiple contributors. The department may not require the payment of remedial action costs from this person.

(b) (i) the person is one whose liability is based solely on 75-10-715(1)(c) or (1)(d) and who presents substantial credible evidence that the person arranged for disposal or treatment of less than 5% of the total quantity of solid waste or hazardous or deleterious substances disposed of at a facility that received solid waste or hazardous or deleterious substances from multiple contributors.

(ii) For the purposes of subsection (5)(a) and this subsection (4)(b) only, the term "solid waste" means:

(A) all putrescible and nonputrescible wastes, including garbage, rubbish, refuse, or ashes;

(B) sludge from sewage treatment plants, water supply plants, or air pollution control facilities;

(C) construction and demolition wastes;

(D) dead animals, including offal;

(E) discarded home and industrial appliances; and

(F) wood products or wood byproducts and inert materials.

(c) (i) the person:

(A) is the owner of the real property on or in which the facility is located;

(B) did not conduct or permit the generation, transportation, storage, treatment, or disposal of any hazardous or deleterious substance at the facility; and

(C) did not contribute to the release or threat of release of a hazardous or deleterious substance at the facility through any action or omission.

(ii) This subsection (4)(c) does not apply if the person purchased the real property with actual or constructive knowledge that the property was used for the generation, transportation, storage, treatment, or disposal of any hazardous or deleterious substance.

(d) the person presents substantial credible evidence that the person has a defense under 75-10-715(5).

(5) When reaching a settlement under subsection (4)(b), (4)(c), or (4)(d), the department may require the payment of remedial action costs not to exceed two times the person's reasonably projected liability for remedial action costs as determined by the department. Except as provided in subsection (6), the settlement must contain a reservation of rights clause in the event that the department obtains new information showing that the settling person no longer qualifies for a settlement because:

(a) the solid waste or hazardous or deleterious substances contributed by the person was of a greater volume or toxicity than originally estimated; or

(b) the settlement was reached under subsection (4)(c) and, after settlement, the department finds that the person had actual or constructive knowledge that the property was used for the generation, transportation, storage, treatment, or disposal of any hazardous or deleterious substance.

(6) A person who agrees to a liability settlement may avoid the reservation of rights clause under subsection (5) by paying remedial action costs in the amount of four times the person's reasonably projected liability for remedial action costs as determined by the department.

(7) All funds received as a result of settlements under this section must be paid in the following order of priority:

(a) to the department as reimbursement for its remedial action costs at the facility;

(b) to liable persons as reimbursement for remedial action costs at the facility. In the event of an allocation under 75-10-742 through 75-10-751, the reimbursement must be in proportion to each liable person's share of liability as determined under the provisions of 75-10-750 or 75-10-751;

(c) the remainder, if any:

(i) to the orphan share fund provided in 75-10-743 if the facility went through the allocation process provided in 75-10-742 through 75-10-751; or

(ii) to the fund provided in 75-10-704 if the facility did not undergo the allocation process provided in 75-10-742 through 75-10-751.

(8) Any person who enters into a settlement under this section may not be subject to or assigned a share in the allocation process provided in 75-10-742 through 75-10-751.

(9) As part of an administrative or judicially approved settlement agreement, the department may require the liable person to provide financial assurance, in an amount determined by the department, to ensure the long-term operation and maintenance of the remedial action site. The liable person shall provide the financial assurance by any one method or combination of methods satisfactory to the department, including but not limited to insurance, guarantee, performance or other surety bond, letter of credit, qualification as a self-insurer, or other demonstration of financial capability.

History: En. Sec. 11, Ch. 709, L. 1989; amd. Sec. 4, Ch. 752, L. 1991; amd. Sec. 8, Ch. 415, L. 1997.