The U.S. Environmental Protection Agency (EPA) recently issued a revised policy for negotiation of remedial action settlements in Superfund cases. According to the agency, the policy is intended to establish processes to speed resolution of negotiations between EPA and private entities to fund or conduct work at sites addressed under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). It includes a multi-page template for a negotiation plan to be prepared for each site.
While it states that “Dialogue and planning will drive this new approach,” that dialog appears to largely be within the government rather than with respondents. The policy “emphasizes promptly concluding RD/RA negotiations and more aggressively utilizing [the government’s] enforcement tools.” Elements to be used in implementation include earlier involvement of enforcement personnel when preparing the proposed negotiation plan, incorporating contingency planning into the negotiations process and engaging Office of Regional Counsel, program offices, the Office of Site Remediation Enforcement, and Department of Justice (DOJ) “in a more systematic way that urges negotiators to commit to specific timeframes and benchmarks throughout the process.”
The policy calls for EPA to “evaluate all enforcement and settlement tools throughout the negotiation process.” Among the tools identified are bifurcation of the remedial design (RD) and remedial action (RA) to start work sooner, consideration of “fund lead or enforcement-leverage options” like mixed funding, mixed work and use of unilateral administrative orders (UAOs). As to the latter, the policy states, “Potentially Responsible Parties (PRPs) should know during negotiations that EPA is willing and ready to issue a UAO if they unreasonably delay settlement.”
The policy retains a goal to complete RD/RA negotiations within 120 days of issuance of special notice letters (SNLs) to PRPs. It anticipates lengthier negotiations, however, and posits a series of “systematically elevated status conferences” among EPA and DOJ personnel at 120, 240 and 300 days from issuance of the SNL to assess progress against a negotiation plan specific to the site, and every 60 days thereafter. The policy anticipates issuance of SNLs within 90 days after the record of decision and calls for a similar status conference approach to handling sites where SNLs do not issue within that time frame. There also are processes to deviate from the standard negotiation timeline in “rare cases” like those involving mixed funding or mixed work.