3.25.140 Settlement

(a) There may be no settlement by the department with any person liable under this chapter except in accordance with this section.

(1) The Tribal Attorney may agree to a settlement with any potentially responsible person only if the department finds, after public notice and any required hearing, that the proposed settlement would lead to a more expeditious cleanup of hazardous substances in compliance with clean-up standards under this chapter and with any remedial orders issued by the department. Whenever practicable and in the public interest, the Tribal Attorney may expedite such a settlement with persons whose contribution is determined by the department to be insignificant in amount and toxicity.

(2) A settlement agreement under this section shall be entered as a consent decree issued by a court of competent jurisdiction.

(3) A settlement agreement may contain a covenant not to sue only of a scope commensurate with the settlement agreement in favor of any person with whom the Tribal Attorney has settled under this section. Any covenant not to sue shall contain a reopener clause which requires the court to amend the covenant not to sue if factors not known at the time of entry of the settlement agreement are discovered and present a previously unknown threat to human health or the environment.

(4) A party who has resolved its liability to the department under this section shall not be liable for claims for contribution regarding matters addressed in the settlement. The settlement does not discharge any of the other responsible parties but it reduces the total potential liability of the others to the department by the amount of the settlement.

(5) If the department has entered into a consent decree with an owner or operator under this section, the Tribe shall not enforce this chapter against any owner or operator who is a successor in interest to the settling party unless under the terms of the consent decree the tribe could enforce against the settling party, if:

(A) The successor owner or operator is liable with respect to the facility solely due to that person's ownership interest or operator status acquired as a successor in interest to the owner or operator with whom the Tribe has entered into a consent decree; and

(B) The stay of enforcement under this subsection does not apply if the consent decree was based on circumstances unique to the settling party that do not exist with regard to the successor in interest, such as financial hardship.

(6) Any person who is not subject to enforcement by the department under (5) of this subsection is not liable for claims for contribution regarding matters addressed in the settlement.

(b) In addition to the settlement authority provided under subsection (a) of this section, the Tribal Attorney may agree to a settlement with a prospective purchaser, provided that:

(1) The settlement will yield substantial new resources to facilitate cleanup;

(2) The settlement will expedite remedial action at the facility consistent with the rules adopted under this chapter; and

(3) Based on available information, the department determines that the redevelopment or reuse of the facility is not likely to contribute to the existing release or threatened release, interfere with remedial actions that may be needed at the facility, or increase health risks to persons at or in the vicinity of the facility.

(c) Nothing in this chapter affects or modifies in any way any person's right to seek or obtain relief under other statutes or under Tribal law or common law, including but not limited to damages for injury or loss resulting from a release or threatened release of a hazardous substance. No settlement by the department or remedial action ordered by a court or the department affects any person's right to obtain a remedy under Tribal law, common law or other statutes.