By Andrew H. Perellis, Philip L. Comella, and Craig B. Simonsen

The U.S. Environmental Protection Agency has recently released its “Revised Policy on Managing the Duration of Remedial Design/Remedial Action Negotiations” (Revised Policy). The Revised Policy contains the Office of Site Remediation Enforcement’s (OSRE) procedures for reducing the duration of remedial design/remedial action (RD/RA) negotiations. The stated objective is “to strengthen our negotiation practice, shorten the duration of negotiations, and achieve timely settlements.”

To achieve EPA’s objective the Revised Policy indicates that OSRE is committed to work with the EPA Regions, the Superfund Program Offices, and U.S. Department of Justice to find ways to shorten timeframes in order to begin cleanups as soon as practicable. OSRE is implementing “fundamental changes in managing RD/RA negotiations by shifting from a system that requires Regions to request approval from Headquarters to extend negotiations past certain milestones, to one in which Regions engage in a dialogue with Headquarters and the Justice Department about the progress of negotiations.” The goal is to empower the EPA negotiation teams to engage in earlier, more frequent dialogues to bring faster settlements.

The Revised Policy emphasizes promptly concluding RD/RA negotiations and more aggressively utilizing enforcement tools. Implementation of this process involves:

  1. Earlier enforcement involvement at the Proposed Plan stage;
  2. The incorporation of contingency planning into the negotiations process; and
  3. Engaging Office of Regional Counsel, Program Offices, OSRE, and the Justice Department in a more systematic way that urges negotiators to commit to specific timeframes and benchmarks throughout the process.

EPA negotiators are encouraged to evaluate all available enforcement and settlement tools throughout the negotiation process, including bifurcation of the RD and RA to get work started sooner, and the potential or need for fund-lead or enforcement-leverage options such as mixed funding, mixed work, and issuing unilateral administrative orders for all or part of the work. “Potentially Responsible Parties (PRPs) should know during negotiations that EPA is willing and ready to issue a UAO if they unreasonably delay settlement.”

As a consequence, those with Superfund negotiations on the horizon or currently underway should consider how this new policy may affect the progress of settlement talks and the expectations of EPA in those discussions.