September 28, 1995
Mr. James J. Scott, Jr. Executive Director North Carolina State Ports Authority PO Box 9002 Wilmington, NC 28402
RE: Advisory Opinion: Enforceability of Settlement Agreement Between the State Ports Authority and the Department of Environment, Health and Natural Resources
Dear Mr. Scott:
The North Carolina State Ports Authority (NCSPA) has been identified by the Department of Environment, Health and Natural Resources (DEHNR) as a responsible party for the clean-up of petroleum contamination at the Morehead City Terminal Facility. Contemporaneously with this letter, the parties will document the resolution of this dispute through the entry of a Settlement Agreement, approved by the Superior Court of Wake County. The NCSPA and its lessee have inquired regarding the enforceability of the Settlement Agreement if it is not styled as a Consent Judgement entered in accordance with N.C.G.S. 114-2.2.
It is the opinion of this office that the Settlement Agreement, when it becomes the subject of court approval, is indeed enforceable. While N.C.G.S. 114-2.2 offers clear guidance of State agencies and to the Attorney General where consent judgements are involved, it does not evidence an intent that all agreement made within the context of a civil or administrative action must be the subject of a consent judgement to be effective against a state agency. There are several reasons why parties may require a settlement agreement. For example, a consent judgement connotes a more complete resolution of major litigation than the instant Settlement Agreement. By its terms, this Settlement Agreement may be modified by joint stipulation, and the approving court retains continuing jurisdiction. In addition, the parties have developed a compliance schedule which calls for several actions by the NCSPA, but which will need further approval by DEHNR.
I do not feel it was the intent of the General Assembly to require a personal review by the Attorney General of every agreement an agency may desire to enter, which could literally number in the hundreds. It is our standard practice to use settlement agreements wherever possible as a matter of efficiency, and reserve consent judgments for matters involving institutional litigation where major State priorities and objectives are involved. The use of the instant Settlement Agreement is consistent with that practice and the law. Lastly, there can be little question that the approved terms of the Settlement Agreement are binding and enforceable, as are any similar orders of the court. Indeed the purpose of submitting the agreement to the court is to assure timely compliance by the NCSPA.
I trust this clarifies the suggestion to document your agreements with the Department of Environment, Health and Natural Resources in this manner.
Andrew A. Vanore, Jr.
Chief Deputy Attorney General