Appendix 13 Revised Settlement Policy and Contribution Waiver Language re Exempt De Micromis and Non-Exempt De Micromis Parties

AuthorAllison Rumsey/Michael Daneker
Page 399
Page 400 Superfund Deskbook
On January 11, 2002, President Bush signed into law the Small Business Liability Relief
and Brownfields Revitalization Act (SBLRBRA), Public Law No. 107-118. Among its
provisions the law added a new Section 107(o) to the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9607(o), which provides a qualified
exemption from liability for de micromis parties, as defined therein. Section 107(o) provides a
statutory exemption for de micromis parties that is similar, but not identical, to the protection
previously afforded by the United States Environmental Protection Agency (EPA) and United
States Department of Justice (DOJ) policy regarding settlements with de micromis parties at
Superfund sites. The purpose of this memorandum is to revise that policy in light of this
statutory change. This policy also revises the model contribution waiver language that has been
used in CERCLA agreements to waive private contribution claims against parties that
contributed only very small amounts of waste.
This settlement policy addresses the United States’ position regarding those parties that
fall within the statutory definition of de micromis (referred to herein as “exempt de micromis
parties”), and those parties that fall outside the statutory definition, but who may be deserving of
similar treatment based on case-specific factors (referred to herein as “non-exempt de micromis
parties”). Non-exempt de micromis parties fall outside the protection of the de micromis
exemption under Section 107(o), even though their waste volume is extremely small compared
to the traditional de minimis party’s volume addressed by Section 122(g). EPA believes such
non-exempt de micromis parties should not be pursued or otherwise compelled to expend
transaction costs to resolve potential CERCLA liability. For these parties, the administrative
costs of determining and verifying the party’s share, if any, and the cost of collecting the small
payment, usually far exceed that share. Therefore, as a matter of national policy, EPA intends to
use its enforcement discretion, as necessary, to achieve settlements that provide appropriate
relief for those non-exempt de micromis parties that are being sued in contribution or threatened
with a suit by responsible parties.
This policy supersedes the “Revised Guidance on CERCLA Settlements with De
Micromis Waste Contributors” (June 3, 1996), and “Inclusion of Contribution Waiver by Private
Parties in CERCLA Administrative and Judicial Settlements” (October 2, 1998).1 It consists of a
1 In 1995, EPA announced Superfund Administrative Reform 3-14: Revised De
Micromis Guidance. The intent of the reform was to discourage responsible parties from
bringing contribution litigation against the smallest volume waste contributors at Superfund sites
(referred to as de micromis waste contributors) by entering into settlements with de micromis
parties, when appropriate, to resolve their liability, and provide them with contribution
protection. For de micromis waste contributors covered by EPA reform policies, the Agency
recognized that legal and other transaction costs may actually exceed a party’s settlement share
of response costs. Under the reform, if private parties sued or threatened to sue these parties,
EPA would consider entering into settlements providing contribution protection. To implement
this reform, EPA and DOJ jointly issued guidance on how to help protect these parties from

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