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ENR (202) 514-2008 TDD (202) 514-1888
JUSTICE, EPA ANNOUNCE MODEL SUPERFUND CONSENT DECREE DESIGNED TO IMPROVE SUPERFUND SETTLEMENTS AND CLEANUPS WASHINGTON, D.C. -- In a move to improve and to streamline Superfund settlement procedures, the Department of Justice and the Environmental Protection Agency issued a new Model Consent Decree to be used in negotiating the cleanup of Superfund sites. The Superfund settlement tool will encourage more potentially responsible parties (PRPs) to settle with the government, allow settlements to be reached quickly, and provide new protection for individuals and small business parties. A main feature of the revised model consent decree is the elimination of a provision from the original 1991 model. This provision -- that some settling parties consider overly stringent and an obstacle to settlement at a number of Superfund sites -- required defendants to commit to performing additional remedy actions in the event that the original remedy failed. In Superfund cleanup settlements, potentially responsible parties agree to clean up the site by performing a remedy chosen by the EPA -- typically, a cleanup of contaminated soil and groundwater, to standards specified by EPA. Some PRPs considered the 1991 provision to be a "blank check," holding them responsible for additional, and most likely expensive cleanup remedies, despite the fact that they had completed the original remedy required by their settlement. The new model eliminates this provision and suggests that settling defendants' liability for additional response actions simply be reserved. This reservation also may be omitted from Superfund settlements in appropriate circumstances. In addition, the new model contains a waiver of claims by Superfund defendants against "de micromis" parties -parties who contributed very small amounts of waste to Superfund sites. This provision requires anyone who settles with the United States to agree not to pursue such parties. The waiver is based on provisions of the Superfund reform legislation of 1994 and responds to concerns that individuals and small businesses have been unfairly subjected to third party lawsuits by Superfund defendants. The Administration has supported Superfund reform to exempt
small parties from liability altogether. "This new approach gives potentially responsible parties the certainty they need to commit to perform Superfund cleanups," said Steven Herman, EPA Assistant Administrator for Enforcement and Compliance Assurance. "The use of this new model consent decree should result in more efficient negotiations, as well as an increased number of settlements." "This new settlement tool cuts red tape and strikes a better balance by effectively protecting the public and better accommodating concerns of those parties willing to settle and to clean up Superfund sites," said Lois J. Schiffer, Assistant Attorney General in charge of the Department's Environment and Natural Resources Division. "In addition, it says to individuals and small businesses that we will protect them from additional litigation and costs that they just don't deserve." The new model consent decree also: þ authorizes mediation as a tool to help resolve disputes þ limits the settling defendants' responsibility for paying damage claims that might be brought against the United States if cleanup activities cause damage þ recognizes that a "technical impracticability" provision may be needed in situations where some aspects of the remedy may turn out to be infeasible þ eliminates some of the penalties to which settling defendants may be exposed if work is not completed on time, especially when delays are caused by EPA or courts taking too long to resolve disputes þ clarifies and expands settling defendants' ability to avoid penalties when events beyond their control cause unanticipated delays A joint cover memorandum, signed by Ms. Schiffer and Mr. Herman, explains that the 1991 model has been successful in accomplishing its main goals -- to protect the public interest under Superfund law and to reduce the time and money spent by the government and PRPs on drafting and negotiating Superfund agreements. However, PRP objections to provisions of the Model they viewed as unnecessarily stringent sometimes were an impediment to settlement. The revisions address those objections. The joint cover memorandum also changes EPA policy to eliminate the requirement that EPA regions consult with EPA headquarters before agreeing to consent decrees that modify key provisions of the Model Consent Decree. This change
will further reduce the time needed to reach settlements, and increase the flexibility of the negotiating process. The model consent decree is effective July 13, 1995. It will serve as the basis for all future settlements for Superfund remedial action negotiated with PRPs. It will not affect consent decrees previously negotiated and signed by PRPs. ### 95-389