Beyond Coordination – Get in the Know

Your guide to Superfund/CERCLA updates from EHS Support

 

Wanted: Potentially Responsibility Parties! What should you do if you receive an information request letter from USEPA?

As a fundamental part of the Enforcement First for Remedial Actions at Superfund Sites (Enforcement First policy), the United States Environmental Protection Agency (USEPA) will seek out all of the potentially responsible parties (PRPs) to perform investigation and cleanup activities prior to utilizing Superfund monies for funding.

This search involves USEPA collecting evidence to determine liability by cross-referencing wastes found on a property with parties that have contributed wastes to the site.

However, Section 104(e) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) gives USEPA the authority to issue notification request letters to any person who may know something about a site—not just PRPs.

So what does USEPA’s investigation really entail?

Identifying Potentially Responsible Parties

USEPA seeks out PRPs using a variety of approaches, including:

  • Documents review
  • Site investigation and sampling
  • Interviews
  • Information request letters;
  • Title searches
  • Research of publicly available information (e.g., internet, library, courthouses, state offices).

 

Other factors that influence how USEPA approaches PRPs include:

  • The nature of a party’s involvement, such as a waste generator vs. a property owner
  • The party’s potential defense (e.g., 3rd party defense)
  • Applicable exemptions or exclusions
  • Amount of waste contributed by a particular party
  • The ability of a party to contribute funds towards the cleanup.

 

CERCLA Section 104(e) Information Request Letters

Under Section 104(e) of CERCLA, USEPA can request information from any person (including business entities, private parties, government agencies, etc.) who may have information about a site. As noted above, the recipient of this type of letter does not have to be a PRP.

The issuance of these letters comprise one of the tools USEPA uses to identify PRPs. These information request letters may help gather information on the types of waste found at the site, as well as the parties that may have contributed wastes to the site.

These letters include questions based on specific categories, which are tailored to the following:

  • Type of site – chemical plant, drycleaners, etc.
  • Sophistication of the recipient – individual, small business, large corporation, etc.
  • Recipient’s involvement with the site – owner, operator, arranger, transporter
  • Nature of the information sought
  • Insurance coverage
  • Superfund Recycling Equity Act (SREA).

 

General “Notice of Liability” Letters

General “Notice of Liability” letters are issued to the targeted recipients informing them that they are identified as a PRP at a Superfund site, that they may be liable of cleanup costs at the site, and explains the process for negotiating the cleanup with USEPA.

These letters will also include information on Superfund, the site, and may include a request for additional information (i.e., CERCLA 104(e) Letter).

Special “Notice of Liability” Letters

When USEPA is ready to negotiate with a PRP to clean up a site, it will issue a special notice letter (SNL). This type of letter gives the PRP information on why USEPA believes they are liable, and describes USEPA’s plans for the site’s cleanup. The special notice letter will also invite the PRP to participate in negotiations with USEPA to conduct future cleanup work and pay USEPA for any site-related costs incurred.

This letter triggers the commencement of a “negotiation moratorium,” which means the USEPA will not unilaterally order the PRP to conduct the cleanup. This moratorium is only in effect for a certain period of time and is designed to encourage PRPs to negotiate a settlement agreement.

USEPA may decide to not issue a special notice letter when:

  • Past experience with PRPs indicates a settlement is not likely
  • No PRPs have been identified
  • PRPs lack the resources to conduct the work.

 

Okay, I received a letter — Now what?

CERCLA equips USEPA with a number of legal tools to facilitate the process of cleaning up hazardous waste sites. Included in this toolbox is a variety of enforcement mechanisms such as administrative order authority and judicial enforcement authority. Section 104 of CERCLA arms USEPA with the authority to conduct a cleanup, gather information and evidence of PRP liability, and obtain site access. CERCLA does not start or end with Section 104. For example, Section 106 enables USEPA the authority to unilaterally order PRPs to clean up sites and levy fines for noncompliance with the orders. Section 107 outlines the liability provisions, which give USEPA the authority to recover all response costs, determine the amount of liability, seek cost recovery, and identify all parties associated with a release. Section 122 permits USEPA to enter into agreements with PRPs so the PRPs conduct all or part of the response activities.

There are a limited number of defenses that one can evaluate in an effort to avoid CERCLA liability:

  • Mere knowledge is not sufficient
  • Act of God
  • Act of War
  • Third-Party defense
  • Innocent landowners
  • De minimis settlements
  • Separate harm
  • Contiguous properties.

 

EHS Support has worked with a variety of clients in navigating both the technical challenges and legal landscape, pulling in internal resources and external legal professionals, depending on the situation.

We Are Here To Help!

EHS Support is known in the industry as a project catalyst by using effective communication, focusing on strategy, and reducing site costs for PRP groups. We understand PRP group dynamics and facilitate a consensus between all stakeholders involved. PRP groups experience similar hurdles in maintaining group cohesion while meeting schedules in a cost-effective manner, and EHS Support provides coordination and management services to streamline these challenges.

If your company has been identified as a PRP, received inquiry letters from USEPA during a PRP investigation, or is concerned with questions related to the Superfund process, consider contacting EHS Support. We can assist in any of the following areas:

  • CERCLA response coordination
  • Corporate portfolio risk analysis
  • Financial risk management
  • Company specific Superfund site management program development
  • De-minimis site management and tracking
  • PRP Group project coordination role
  • Prime consultant role
  • Financial management and administration
  • Strategic and tactical planning to achieve PRP group objectives
  • Technical oversight and critical reviews
  • Representation on behalf of your company in committee and subgroup participation
  • Corporate financial reserve estimates
  • PRP allocation determinations.

 

Please contact one of our CERCLA Concierge’s, Joe Biss, Kenny Ogilvie, or Beth Hesse, to learn more about how EHS Support can help you or your site PRP group in maintaining group cohesion while streamlining costs and decision making skills. Building trust among stakeholders makes projects less stressful and more effective.

Be on the lookout for additional client alerts over the coming months focusing on topics geared towards PRP Groups and common issues.

 

References:

EPA. Enforcement Division. Information obtained from http://www2.epa.gov/enforcement, on June 4, 2014.

EPA. Superfund Liability, Enforcement and Settlements (EPA540-R-98-028). June 1998. Accessed from: http://www.law.uh.edu/faculty/thester/courses/Environmental-Enforcement-2012/Liab.pdf, on June 4, 2014.