Full Answer
What is a de minimis settlement?
A de minimis settlement, in general, is a settlement between EPA and those parties who are responsible for a minimal contribution, in amount and toxicity, of the hazardous substances at a Superfund site, or who bought the site without knowledge of the contamination and did not cause or contribute to the contamination.
What is de minimis/de micromis?
De Minimis/De Micromis Policies and Models. This category outlines EPA's procedures for de minimis and "de micromis" settlements. A de minimis settlement, in general, is a settlement between EPA and those parties who are responsible for a minimal contribution, in amount and toxicity, of the hazardous substances at a Superfund site,...
Where can I find information on municipal liability under CERCLA?
Additional information on municipal liability is available from EPA's Interim Guidance on the Municipal Solid Waste Exemption under CERCLA § 107 (p) (8/20/2003). Generally, if a hazardous substance came to a property by migrating through the groundwater from a source outside the property, EPA will not take action against the owner of that property.
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Why are early de minimis settlements so impractical?
The explanation given most frequently by the regional offices as to the impracticality of early de minimis settlements is the lack of sufficiently reliable information on cleanup costs. EPA’s recent guidance document has attempted to deal with this question on a regional level. Paragraph 4 (a) suggests this task is better accomplished on the national level. In general, there is no reason for a regional office to confine itself to its own sites in determining the costs of similar cleanups, as the inventory of comparable sites that have progressed sufficiently in the cleanup process may be small or nonexistent. Furthermore, there is no central repository for de minimis settlement documents, which might contain relevant data, and no EPA database contains their full terms. While this information can generally be obtained from the individual regional offices, this process is cumbersome and time-consuming.
Why is it important to settle de minimis?
To understand the context for de minimis settlements, it is important to review both the process of cleanup of hazardous waste sites and the allocation of responsibility for this cleanup among EPA and the PRPs . One of the most compelling reasons for offering early settlements to parties who bear only a small share of the liability is the very long time (averaging 12 years) that elapses between the discovery of a site and its ultimate cleanup. Settling with de minimis parties relatively early in this process can save them substantial legal and consulting costs.
What is the importance of the allocation of responsibility between EPA and the major PRPs at a particular site?
The allocation of responsibility between EPA and the major PRPs at a particular site is also of critical importance. Many of the issues raised by a de minimis settlement concern its effect on subsequent settlements pursuant to which the major parties agree to undertake the cleanup of the site.
What are the parties responsible for cleanup of hazardous waste sites?
For each site, the statute establishes four categories of liable parties: The generators of the hazardous substances present at the site, the transporters of these substances to the site, the current owner of the site, and prior owners during whose period of ownership there was disposal of hazardous substances at the site. 3 These parties are liable for the costs of cleanup of the site, as well as for damage to natural resources under the control of the Federal or state governments, or Indian tribes. 4
What is substantial conflict between EPA and de minimis?
An element over which there is substantial conflict among EPA and the de minimis and major parties is the premium to be charged in exchange for a waiver of any cost overrun and the risk that future events may trigger the possibility of further action by EPA against a party that has already settled (“reopen ers”). The study found wide variation, ranging from approximately 50% to 250%, not readily explained merely by the different stages at which the settlements were entered. Moreover, there does not appear to be a standardized method for calculating premiums. Paragraph 4 (b), like paragraph 3 (a), intended to reduce the potential for conflict by standardizing the approach.
What are the early stages of the Superfund process?
The early stages in the Superfund process involve the screening of sites to determine which pose the most serious health problems, and should therefore become the focus of EPA’s attention. The later stages involve the cleanup of these sites. Obviously, the call for de minimis settlements during the early stages of the process is more compelling because the process is a slow one.
Should the EPA negotiate de minimis settlements?
1. EPA should make further efforts to establish procedures and incentives to negotiate de minimis settlements as a standard practice at all multi-party Superfund sites involving de minimis parties. EPA should not rely on global settlements as the preferred mechanism for resolving the liability of de minimis parties.
What is the EPA's response to CERCLA?
EPA#N#has increased its use of administrative orders under § 106 of CERCLA, responding#N#to congressional complaints that it was not aggressive in its pursuit of#N#private party cleanups. Under § 106, EPA can order one or more PRPs to#N#undertake a response action to prevent or cease a release from a site at which#N#hazardous substances are located, If a PRP is named in an EPA order and that#N#party fails to undertake .the ordered action without “sufficient#N#cause,” a court may impose a civil penalty of up to $25000 per day in#N#civil penalties for the period of non-compliance and also award EPA treble the#N#cost of any response incurred by the Superfund.
What is settlement with EPA?
EPA settlements typically focus on total#N#cost recovery and the liability of parties for performance of the remedial work#N#at the site. Private party settlements, however, normally involve establishing#N#mechanisms for technical review of EPA’s suggested remediation, assessing#N#monetary shares for expenses, and establishing mutual defense groups.
What happens if fewer than all PRPs settle?
If#N#fewer than all PRPs settle, those settlors are exposed to possible action by#N#later sued parties for contribution. Contribution claims are based on the#N#theory that the initial settling parties must ultimately pay their appropriate#N#percentage of any costs for which the nonsettling parties may be held liable.#N#Settling parties would point to CERCLA § 122 (h) (4), which states that any#N#party resolving its liability to the United States is not liable for claims of#N#contribution “regarding matters addressed in the settlement.” This section#N#potentially provides broad protection for settlers from actions brought by the#N#nonsettling parties. The section also benefits nonsettlors because it provides#N#for a reduction in potential liability of nonsettlors if an administrative or#N#judicially approved settlement is entered.
What is consent decree?
The#N#consent decree formalizes the remedy selected by the ROD if settling parties#N#will be performing work. CERCLA § 117 (c) requires that the EPA explain any#N#significant difference between the ROD and the work to be performed as set out#N#in the consent decree.
What is the defense to the innocent landowner?
That defense must meet several threshold tests#N#to establish that the landowner is , in fact, innocent. Under CERCLA §§ 101 (35)#N#and 107 (b) (3), the landowner must have acquired the property by bequest or without#N#knowledge or reason to know of the disposal of hazardous substances.
Should settlement parties limit future EPA costs?
settling parties should attempt to limit future EPA costs to a fixed dollar. amount, to require strict accounting of these costs, to retain the right to. challenge the appropriateness of the costs, and to limit recovery of state. oversight costs above and beyond the federal oversight costs.
Can the EPA sue the settling parties?
Whether#N#settling past costs or agreeing to future performance, the settling parties#N#should always insist on a covenant not to sue from the EPA pursuant to CERCLA §#N#122 (c) and (f). The covenant should state that the EPA will not sue settling#N#parties for expenses incurred by the government to date and for those incurred#N#for future activities performed by EPA which may result in statutory liability#N#to the settling parties, As to costs incurred by EPA to the date of the decree,#N#the covenant is effective as of the date and decree is entered. The covenant#N#not to sue for future costs is not effective until EPA “certifies”#N#that remediation has been” completed.”
Does the EPA take action against owners of residential property located on or adjacent to superfund sites?
Generally, EPA will not take action against owners of residential property located on or adjacent to Superfund sites. This policy applies to properties that are owned and used exclusively for single family residences of 1-4 units. Additional information on residential homeowner liability is available from EPA's Policy Toward Owners of Residential Property at Superfund Sites (7/3/1991).
Does the EPA have a presumptive settlement range?
EPA has a presumptive settlement range for municipalities that are current or past owners and/or operators of co-disposal sites (sites with both municipal solid waste and hazardous substances) that want to settle their Superfund liability.
Does the EPA make special payment arrangements?
EPA will make special payment arrangements and/or reduce the amount of payment for PRPs who can demonstrate an inability to pay the total amount of their liability for cleanup costs. Policy documents are available from the ability to pay category within the Superfund cleanup policy and guidance database. (Note: Sometimes the term "ability to pay" is used to mean "inability to pay.")
