October 16, 2009
Previously published on October 12, 2009
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.
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