A Super Step in Superfund Regulation? Time Will Tell: EPA Releases Guidance on Negotiation of RD/RA at Superfund Sites and a Revised Settlement Approach for Alternate Sites

In the controversial area of Superfund regulation, the United States Environmental Protection Agency (“EPA”) appears to be making steps toward more successful and more efficient negotiation of remedial design (“RD”)/remedial action (“RA”) settlements in Superfund cases. EPA recently released its Revised Policy on Managing the Duration of Remedial Design/Remedial Action Negotiations (“the Negotiation Policy”) and Transmittal of Updated Superfund Response and Settlement Approach for Sites Using the Superfund Alternative Approach (“Alternative Approach”).

The Negotiation Policy supercedes portions of the July 17, 1999, Negotiation and Enforcement Strategies to Achieve Timely Settlement and Implementation of Remedial Design/Remedial Action at Superfund Sites that relate to requests for approval to continue RD/RA negotiations beyond the 120-day negotiation moratorium under Section 122 of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and supercedes the September 30, 2009 Interim Policy on Managing the Duration of RD/RA Negotiations in its entirety. It also addresses issues raised in the May 2012 Results of the Evaluation of the 2009 Interim Policy on Managing the Duration of Remediation Design/Remedial Action Negotiations (“May 2009 Results”).

The Negotiation Policy includes a lengthy negotiation template that emphasizes “dialogue” over the paperwork-intensive approvals that are required when Potentially Responsible Parties (PRPs) seek extensions of the 120-day negotiation moratorium. To achieve its goal, the Negotiation Policy sets forth a schedule of status conferences with various agency representatives including the Office of Regional Counsel, Program Offices, the Office of Site Remediation Enforcement, and the Department of Justice. The Negotiation Policy also stresses “more aggressively utilizing [EPA] enforcement tools,” including bifurcation of the RD/RA to help start work sooner, fund lead or enforcement-leverage options including mixed funding and mixed work, and use of unilateral administrative orders (UAOs) for all or a portion of the work.

The Negotiations Policy will apply to RD/RA negotiations moving forward. While any proposal that attempts to facilitate the negotiation process should be viewed positively in the first instance, the proposal is painfully detailed and only time will tell how the new policy plays out. Although the Negotiation Policy demonstrates EPA’s preference to reach a settlement, the guidance makes clear that there is no EPA policy or statutory requirement for continuing the moratorium of enforcement actions beyond 120 days. Indeed, the policy states that PRPs, “should know during negotiations that EPA is willing and ready to issue a UAO if they unreasonably delay settlement.” PRPs should be mindful of the 120-day RD/RA negotiation benchmark and continue to make all efforts to reach a settlement within that time frame.

The Alternative Approach supercedes the 2004 Revised Response Selection and Settlement Approach for Superfund Alternative Sites. The Alternative Approach addresses the use of Superfund Alternative Approach agreements (“SAAs”) at sites that are eligible to be listed on the National Priorities List (“NPL”), but are not listed. The Alternative Approach purports to make the use of SAAs at those sites consistent with the practices normally followed at NPL sites including response techniques, standards and guidance, community engagement and achieving comparable cleanup levels. While the fact that the Alternative Approach mirrors the approach for NPL sites does not seem like a huge win, the added benefit of not being listed on the NPL is still a plus.

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