U.S. Environmental Protection Agency (EPA) has issued a
memorandum to the Regional Office Superfund directors setting a new
process for negotiations with Potentially Responsible Parties
(PRPs). The two objectives of this revised policy are to emphasize
"promptly concluding RD/RA negotiations and more aggressively
utilizing [EPA] enforcement tools." This revised EPA policy,
which was issued Sept. 30, will be evaluated after 18 months as to
its effectiveness in expediting "Superfund"
clean-ups.
The negotiation of remedial design and remedial action (RD/RA)
settlements with PRPs to implement a final clean-up has reportedly
become too lengthy over the past years. In the early 1990s, the
duration of RD/RA negotiations was typically less than 200 days,
whereas more recent statistics indicate that such negotiations
often extend beyond 300 days. In order to expedite these
negotiations, there may be more frequent communications between the
Regional Offices and headquarters of EPA. It is unclear whether
negotiations with PRPs regarding the final remedy might commence
during the Proposed Remedial Action Plan process, which could be
helpful.
U.S. EPA (with Department of Justice (DOJ)) also just issued (on
Oct. 1) a new "model" RD/RA Consent Decree (approximately
70 pages long). In conjunction with this new settlement policy, we
predict this new model will likely result in Consent Decree
negotiations being even less flexible. Of course, the DOJ must be
involved in a federal court Consent Decree proceeding, and the EPA
settlement memorandum would not technically be binding on the DOJ;
however, EPA Regions are encouraged to "work with DOJ" to
get a Consent Decree on file with the court as soon as possible so
that the clean-up can commence.
The revised settlement negotiation procedure also encourages EPA to
use the Unilateral Administrative Order (UAO) authority pursuant to
CERCLA § 106 whenever negotiations are not progressing
satisfactorily. PRPs are to be on notice that "EPA is willing
and ready to issue a UAO if settlement is unreasonably
delayed." This UAO enforcement tool carries with it threats of
daily penalties and treble damages for unjustified failures to
comply.
Cleaning up land contaminated by hazardous substances can be a
significant undertaking for commercial, industrial and municipal
entities. Barnes & Thornburg LLP assists businesses and others
throughout the Midwest and the nation in navigating through the
requirements set forth in the federal Superfund program and various
state-law counterparts. Barnes & Thornburg attorneys have
represented clients in all phases of the federal and state
Superfund process, including: site identification and listing
processes; evaluation of remedial investigation and feasibility
studies; consent decree negotiation; allocation negotiation;
cleanup oversight; and litigation. Firm attorneys have served as
chairs for, and counsel to, numerous PRP steering committees and
trusts overseeing Superfund cleanups.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
