Ryan Whaley Coldiron Shandy

On September 30, 2009, the Environmental Protection Agency (“EPA”) issued a new “Interim Policy” designed to shorten the duration of negotiations for CERCLA site cleanups with potentially responsible parties (“PRPs”).

Noting that the median timeframe for beginning a cleanup has increased from 197 days in the early 1990s to 305 days in the late 2000s, EPA enacted the “Interim Policy” which pushes regional superfund directors to promptly conclude remedial design/remedial action (“RD/RA”) negotiations.

Most important, in the “Interim Policy” EPA instructs the regional directors to more aggressively utilize Unilateral Administrative Orders (UAOs). Section 106 of CERCLA authorizes EPA to use UAOs as a means of initiating cleanup when viable private parties exist but cannot reach a timely settlement with EPA to begin remedial work.

The “Interim Policy” encourages the use of UAOs “as a key component for expediting the RD/RA negotiation process.” Arguably, though, once EPA issues a UAO, the private parties subject to the order lose their bargaining power, effectively ending negotiations and resolving any disputes in favor of EPA.

The “Interim Policy” does not mention the recent U.S. Supreme Court case Burlington Northern & Santa Fe Railway Co. v. United States. That opinion arguably gave PRPs more bargaining power by ruling that liability under CERCLA Section 107 is “divisible” where the record reasonably supports the apportionment of liability.

The new “Interim Policy” might be EPA’s reaction to the empowerment of PRPs to avoid liability or prolong negotiations to assess the “divisibility” of liability as provided by Burlington Northern.

Please read EPA’s “Interim Policy on Managing the Duration of Remedial Design/Remedial Action Negotiations” at EPA’s website: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/rdra-neg-timeline-mem.pdf.

Additionally, you can find the U.S. Supreme Court’s Burlington Northern opinion at http://www.supremecourtus.gov/opinions/08pdf/07-1601.pdf, and our discussion of the opinion at http://www.ryanwhaley.com/supreme-court-rules-on-cercla-arranger-liability-and-divisibility.