US EPA Issues New Superfund Policy to Address Delays in Reaching Settlements with Potentially Responsible Parties

November 2012

Citing an increasing trend in the number of days required for the United States Environmental Protection Agency (US EPA) to conclude negotiations with potentially responsible parties and begin cleanups, the US EPA recently revised its procedures for managing the duration of remedial design/remedial action (RD/RA) negotiations.  Central to the new Superfund policy is early communication between US EPA regional offices, US EPA headquarters and the Department of Justice.  “As negotiations progress, [internal] status conferences will be set up to discuss the best ways to overcome obstacles and move forward toward settlement or other enforcement options.  During these conferences, participants will discuss the associated benchmarks and address situations in which the benchmarks have not been met.”  In addition, US EPA stressed the use of enforcement and settlement tools to aid negotiations.  Specifically, the agency recommended the use of bifurcation of the RD and RA which it hopes will allow cleanups to start sooner.  The potential/need for fund-lead or enforcement-leverage options such as mixed funding, mixed work and issuing unilateral enforcement orders for all or part of the work were also highlighted as negotiation tools.  The policy applies to all new RD/RA negotiations.

The information in this newsletter is not intended to provide specific legal advice. You should consult with an attorney and not rely on any information contained herein regarding your specific situation.