49-287.05. Notice of liability allocation; eligibility

A. After signing the record of decision, if the director determines that cost recovery may be appropriate, the director shall notify each person that has been determined to be liable under this article of the following:

1. The boundaries of the site or portion of the site that is the subject of the notice.

2. The basis on which the director has determined the person to be a responsible party.

3. The names and addresses of all other persons who the director has determined to be responsible parties.

4. The method of allocation chosen by the director, the reason it was chosen and the percentage share of remedial action costs for which the department has determined each person to be liable, which shall total one hundred per cent. For each person's share, the department shall state the reasons for the consideration given to the factors of section 49-285, subsections E and F.

5. The record of decision selecting the remedial action and the estimated cost of the remedy. A copy of the record of decision and comprehensive responsiveness summary shall be included. The record of decision shall demonstrate that the requirements of section 49-282.06 were considered.

6. A list of all remedial action costs, other than nonrecoverable costs, incurred by the director at the site that is the subject of the notice.

7. A list of costs of approved remedial actions, other than nonrecoverable costs, incurred by the state or an eligible party at the site that is the subject of the notice.

8. A statement of the person's right to an allocation hearing pursuant to section 49-287.06 and the availability of a settlement pursuant to section 49-292, 49-292.01 or 49-292.02.

9. An offer to settle the person's liability pursuant to this article and CERCLA with respect to the site or portion of the site if the person agrees to pay seventy-five per cent of the share of remedial action costs allocated to the person by the department. If the settlement allows payment over time or satisfaction by performance of future work, the settlement shall be conditioned on the person making a substantial down payment and providing financial assurance that it can meet its obligations to satisfy the remainder of its share under the agreement. Each settlement shall be conditioned on cooperating with the department with respect to further proceedings under this article including providing access to its property for the remedial action and complying with section 49-288 except that the person may reserve the right to challenge the remedy selection. The department's offer to settle expires unless the written acceptance is received by the director within one hundred twenty days after service of notice on the person pursuant to this subsection. Any person who has been penalized under section 49-288, subsection G is not eligible to obtain a settlement under this paragraph. Settlements under this paragraph are voidable at the director's discretion if the settling party institutes an action to recover remedial action costs or response costs incurred at the subject site or facility before the time specified under section 49-287.07, subsection B.

B. If a person cannot be notified of the department's determination pursuant to this section because it no longer exists or cannot be found after reasonable efforts by the department, the department is relieved of its obligation to notify that person.

C. If a person accepts the department's offer to settle pursuant to this section within the time allowed, the department shall enter into a settlement with the person pursuant to section 49-292. The settlement shall include a covenant by the state not to sue under this article or CERCLA and, at the option of the person and subject to court approval, protection from contribution actions under this article and CERCLA. The department may revoke the settlement if the person and the department are unable to agree to reasonable terms and conditions of settlement within ninety days after the offer is accepted.