De Minimiis Settlement Provisions of the 1986 Superfund Amendments
| Jurisdiction | United States,Federal |
| Citation | Vol. 16 No. 4 Pg. 643 |
| Pages | 643 |
| Publication year | 1987 |
1987, April, Pg. 643. De Minimiis Settlement Provisions of The 1986 Superfund Amendments
As noted in previous articles in the "Natural Resource Notes" column,(fn1) many important changes to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA")(fn2) have been made by the Superfund Amendments and Reauthorization Act of 1986 ("SARA").(fn3) Among these changes, the new provisions authorizing settlement of government claims against potentially responsible parties ("PRPs") may be of greatest interest to practitioners now involved with hazardous waste sites across the nation. This article reviews one element of the new settlement provisions: settlements with de minimis contributors of waste at Superfund sites.
As originally enacted, CERCLA contained no specific guidance concerning settlement of claims by the government against PRPs. In the years immediately preceding SARA, the willingness of the Environmental Protection Agency ("EPA") to settle Superfund cases was dampened somewhat by the EPA's fear of allegations of favoritism. These allegations were a result of incidents which occurred under the Burford administration.
In order to facilitate settlements by establishing some uniformity of practice, the EPA promulgated internal guidelines for use in negotiating settlements.(fn4) These guidelines dealt mainly with settlement negotiations in cases where PRPs were willing to contribute a substantial proportion of the costs of clean-up at a given site. Although the guidelines provided for negotiations with de minimis contributors ("low volume, low toxicity disposers who would not normally make a significant contribution to the cost of clean-up in any case"),(fn5) they were not encouraging. Regional EPA staff was cautioned to avoid entry into "full" settlements providing releases, contribution protection and other protective clauses to de minimis parties.(fn6) SARA marks the beginning of what hopefully will be a more productive period for both PRPs and the EPA.
SARA adds new § 122 to CERCLA, providing for settlement in several different contexts.(fn7) New subsection 122(a) gives the government general authorization to enter into settlement agreements "that are in the public interest and consistent with the National Contingency Plan in order to expedite effective remedial actions and minimize litigation."(fn8) This subsection further provides that the EPA's decision to enter or not to enter into settlement agreements is not judicially reviewable.(fn9)
CERCLA subsection 122(g) describes a specific mechanism for settlements with de minimis waste contributors. In certain respects it is more encouraging than the EPA's earlier settlement guidelines.(fn10) The government is authorized to enter into de minimis settlements (settlements involving "only a minor portion of the response costs at the facility concerned"), at its discretion, with two...
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