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
Superfund
Superfund or Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) is a United States federal law designed to clean up sites contaminated with hazardous substances and pollutants.
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 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 a de minimis settlement?
de minimis settlement. A settlement agreement between the Environmental Protection Agency (EPA) and a property owner who may be technically liable for cleanup under the strict liability provisions of the Superfund, but who did not create nor contribute to the contamination and who acquired the property without knowing or having reason to know ...
Is De minimis discretionary?
However, de minimis settlements are entirely discretionary with U.S. Managing environmental liabilities for beneficial reuse. The number of de minimis settlements since 1986 can be counted on one hand. Despite problems Superfund still is best hope. This is the fifth in a series of de minimis settlements at the site.
