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November 12, 2012
EPA seeks to shorten negotiation process in Superfund cases

By Amanda Czepiel, J.D. , BLR Superfund Expert

The U.S. Environmental Protection Agency (EPA) has released a new memorandum that sets a course for shortening the duration of remedial design/remedial action (RD/RA) negotiations. The “Policy on Managing the Duration of Remedial Design/Remedial Action Negotiations” seeks to make negotiations more efficient in order to begin cleanups as soon as practicable.

In the new policy, the EPA’s Office of Site Remediation Enforcement (OSRE) implements fundamental changes to its former negotiation policy, moving from a system that requires EPA regions to request approval from EPA headquarters to extend negotiations past certain milestones to one in which the regions engage in a dialogue with headquarters and the U.S. Department of Justice (DOJ) about the process of negotiations. Status conferences will replace the former paperwork extensive approval system with a dialogue-based system that provides a forum for addressing and elevating issues. The hope is that this shift will result in the empowerment of negotiation teams to engage in early and frequent dialogues to resolve issues in order to reach a settlement.

Implementation of the new negotiation policy focuses on three elements:

  • Earlier enforcement involvement at the proposed plan stage
  • Incorporation of contingency planning into the negotiations process
  • Engagement of the Office of Regional Counsel, program offices, OSRE, and the DOJ to urge negotiators to commit to specific time frames and benchmarks

To achieve its goal, the OSRE has developed a timeline for setting up status conferences based on the signing of the Record of Decision (ROD), issuance of the Special Notice Letter (SNL), and conclusion of negotiations. Under this new system, OSRE’s objective is to complete RD/RA negotiations within 120 days. Recognizing that some negotiations may require additional time, the policy also outlines a time frame for cases that necessitate a longer negotiation process.

The policy encourages EPA negotiators to use all available enforcement and settlement tools throughout the negotiation process, including bifurcation of the RD/RA to get work started earlier, and the potential or need for fund-lead or enforcement-leverage options such as mixed funding, mixed work, and the issuance of unilateral administrative orders (UAOs). With the issuance of this memorandum, parties that will soon enter or are already engaged in Superfund negotiations should be aware that OSRE’s new policy may affect the process of settlement talks and EPA’s expectations regarding Superfund cleanup and settlement discussions.

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