De minimis settlements can be particularly useful to the Government in complex cases involving numerous PRPs. In such cases, de minimis settlements 5 offer the Agency a method of simplifying CERCLA enforcement actions through early elimination of the sometimes numerous minimal contributor PRPs from litigation and negotiations. De minimis
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,...
What is a settlement agreement with a potentially responsible party?
EPA prefers to reach an agreement with a potentially responsible party (PRP) to clean up a Superfund site instead of issuing an order or paying for it and recovering the cleanup costs later. Settlement agreements under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) must be:
What are the requirements for a CERCLA settlement agreement?
Settlement agreements under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) must be: Consistent with the National Contingency Plan. A special notice letter invites a PRP to enter into good faith negotiations and gives the PRP 60 days to provide EPA with a good faith offer to do site work or pay for cleanup.
What is settlement offer for PRP?
The settlement offer made to each PRP is based on the quantity of hazardous substances the PRP sent to the Class I Landfill in proportion to the total amount of manifested waste at the Class I Landfill, and on the total response costs incurred and expected to be incurred at the Class I Landfill. Specifically, DTSC calculated the cost per ton of manifested waste sent to the Class I Landfill and multiplied that number by the total tons each PRP sent to the Class I Landfill.
How is settlement calculated for Class I landfill?
Specifically, DTSC calculated the cost per ton of manifested waste sent to the Class I Landfill and multiplied that number by the total tons each PRP sent to the Class I Landfill. DTSC’s calculation includes adjustments for orphan shares, unallocated shares and an early settlement premium.
What happens if a PRP investigation reveals information regarding any additional shipments from their company to the Class I?
Upon evaluating the disclosed information, DTSC may recalculate the amount of the PRP’s initial settlement offer . To remain eligible for a de minimis settlement, information regarding any additional shipments to the Class I Landfill must be mailed or e-mailed to the following contact at DTSC within thirty days of the PRP’s receipt of the initial offer letter:
What is DTSC's response to hazardous substances?
Under DTSC’s oversight, a group of former customers , known as the BKK Working Group (“BWG”), is conducting response actions at the Class I Landfill pursuant to federal consent decrees. These response actions include the “Essential Activities” at the Class I Landfill, an Engineering Evaluation/Cost Analysis (“EE/CA”) of the systems at the Class I Landfill, and a Remedial Investigation/Feasibility Study (“RI/FS”) of groundwater contamination. Together, the EE/CA and RI/FS will detail the cleanup objectives and recommend a final set of response actions for the Class I Landfill.
When did the Class I landfill start?
The Class I Landfill (“Site”) began operations around 1964. From approximately 1972 through 1984, the Site accepted approximately 5.18 million tons of liquid and solid hazardous waste in addition to large quantities of municipal solid waste. After 1984, the Site ceased accepting hazardous waste but continued accepting municipal and commercial solid waste, including asbestos, until 1987. DTSC was notified in October 2004 that BKK Corporation lacked the financial resources to continue post-closure care of the Site. DTSC initiated an emergency response action in November 2004, to take over daily operations and maintenance and to perform critical tasks. For more information about Site activities see the Community Update.
Is a de minimis settlement negotiable?
In order for DTSC to offer favorable settlement amounts to a large number of PRPs, the terms of the de minimis settlements are not negotiable. The terms are set out in the Model Administrative Consent Order and Settlement Agreement (“Order and Agreement”). The Order and Agreement serves as an administrative order and settlement with DTSC and a settlement agreement with the BWG. Each PRP should carefully review all terms in the Order and Agreement.
Notice of Proposed Administrative Settlement Agreement and Order on Consent With De Minimis Parties at the Omega Chemical Corporation Superfund Site in Los Angeles County, California
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SUMMARY
In accordance with the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (“CERCLA”), notice is hereby given that the Environmental Protection Agency (EPA), has entered into a proposed settlement, embodied in an Administrative Settlement Agreement and Order on Consent (“Settlement Agreement”), with twenty-six parties that sent between one and three tons of waste and one party that sent just over four tons of waste (the “Settling De Minimis Parties”) to a solvent and refrigerant recyling facility that operated between 1976 and 1991 in Whittier, California, called the Omega Chemical Corporation.
ADDRESSES
Please contact Keith Olinger at [email protected] or (415) 972-3125 to request a copy of the Settlement Agreement. Comments on the Settlement Agreement should be submitted in writing to Mr. Olinger at [email protected]. Comments should reference the Omega Site and the EPA Docket Number for the Settlement Agreement, EPA R9-2021-02.
SUPPLEMENTARY INFORMATION
Notice of this proposed Settlement Agreement is made in accordance with the Section 122 (i) of CERCLA, 42 U.S.C. 9622 (i). The Settlement Agreement is a de minimis settlement agreement pursuant to Section 122 (g) of CERCLA, 42 U.S.C.
What is considered a de minimis party?
PRP who contributed only a very small amount of waste to a site may be considered a “de minimis” party when their contribution is minimal compared to other waste at the site. For example, an individual who contributed one percent or less of the waste at the site may be considered a de minimis party.
Does DTSC settle PRPs?
DTSC often prefers to settle its claims against PRPs without resorting to expensive and time-consuming court action. Settlements save both time and money for all parties involved. By entering into a de minimis settlement with DTSC and the BWG, a de minimis settlor receives several benefits, including:
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 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.”
What is included in a Superfund settlement?
Superfund settlement agreements usually include long-term stewardship obligations to maintain the cleanup. Long-term stewardship activities typically include physical and legal controls to prevent exposure to contamination left in place at a site.
What is a Superfund cleanup agreement?
A Superfund cleanup agreement is written in the form of an administrative settlement agreement and order on consent (ASAOC) or a judicial consent decree (CD). Negotiations are based on model settlement agreements, which are usually modified to fit the circumstances at a particular site. Model settlement documents are available from the Cleanup Enforcement Model Language and Sample Documents database. Additional information on Superfund settlements is available from the Superfund enforcement cleanup policy and guidance database.
What is an administrative agreement?
An administrative agreement is a legal document that formalizes an agreement between EPA and one or more PRPs to reimburse EPA for costs already incurred (cost recovery) or for costs to be incurred (cashout) at a Superfund site. (Cashout settlements generally include payments for both past and future costs, ...
When does EPA enter into a windfall lien agreement?
EPA may consider entering into a windfall lien agreement when a BFPP wants to satisfy any existing or potential windfall lien before or close to the time of acquisition.
Does a bona fide prospective purchaser have to have a work agreement?
The activities of most bona fide prospective purchasers (BFPPs) will not require liability protection beyond what is provided by the self-implementing BFPP protection in CERCLA § 107 (r). However, if a BFPP wants to perform cleanup work at a contaminated site of federal interest that exceeds the BFPP’s statutory requirements (e.g., reasonable steps), a work agreement may be used to address potential liability concerns associated with that cleanup work.