520F93019
Uniied Stales
Environmental Prelection
Agency
August 1993
Office ol Wasie Programs Enforcement 5502G
<>EPA Superfund
and
Small Waste
Contributors
De Minimis
De Minimis
De Minimis
De Minimis
Have you been contacted by the U.S. Environmen-
tal Protection Agency or another party regarding your
possible involvement with a Superfund site? If you
believe the waste that you contributed to the site was
minimal, you should learn about "de minimis settle-
ments."
This pamphlet describes what Superfund is, who
Potentially Responsible Parties are, and why a
de minimis settlement may be to your advantage.
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How did I become a potentially
responsible party?
"Potentially responsible parties" (PRPs) are
individuals or companies who may be respon-
sible for all or part of the contamination at a site.
PRPs include individuals, businesses, local,
state, or federal governmental agencies, and
other types of organizations. You may be iden-
tified as a PRP if you are:
1) a current owner or operator of the site;
2) a former owner or operator of the site
during the period of disposal;
3) a party that arranged for the treatment,
disposal, or transportation of hazardous
substances to the site;
4) a party that transported hazardous
substances to a site you selected.
If you fit one of these descriptions, you may
be a PRP even if you were unaware that your
waste was disposed of at the site, or did not
dispose of it yourself.
What does "do minimi's" mean?
At many sites there are PRPs who may
have contributed only a very small amount of
waste to a site. EPA may consider these parties
"de minimis" because their contribution is mini-
mal compared to the other waste at the site. For
example, an individual who contributed one
percent or less of the waste at a site may be
considered a de minimis party.
In recognition of their relatively small con-
tribution of waste, and to help ensure that these
de minimis parties do not get (drawn into lengthy
and expensive lawsuits, EPA may offer a spe-
cial type of settlement to these types of parties.
Whether and how individuals qualify for a
de minimis settlement depends on a variety of
sitespecific factors. However, in general, you
may qualify for a de minimissettlement if:
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• the amount of waste you contributed is
minimal in comparison to the other
hazardous substances at the site;
• the toxic or other hazardous effects of
the waste you contributed are minimal
in comparison to the other hazardous
substances at the site; and
• the settlement is m the public interest,
and involves only a minor portion of the
response costs at the site.
Or, if you are the owner of a site, you may
qualify for another type of de minimis
settlement if:
• as the owner of the site, you did not
conduct or permit the generation,
transportation, storage, treatment, or
disposal of any hazardous substances at
the facility; and
• at the time of purchase, you did not
know, or had no reason to know, that
the property was used for the genera-
tion, transportation, storage, treatment,
or disposal of a hazardous substance.
What are the benefits of this type
of settlement?
Although EPA may go to court to require
PRPs to pay for (or perform) a cleanup, the
Agency often prefers to settle its claims without
resort to expensive court action. Settlements save
both time and money for all parties involved.
De minimis settlements can provide several
benefits, including:
"Covenant Not to Sue" - This provision is a
promise that the EPA will not bring any future
legal actions against the de minimis party re-
garding the site and the specific matters named.
"Contribution Protection" - This provision
offers protection to the de minimis settlor from
being sued by other PRPs at the site. Frequently,
major waste contributors will sue many small
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waste contributors to recover their cleanup
costs. A de minimis settlement provides protec-
tion from such suits that extends to all matters
covered by the settlement.
Taken together, contribution protection, the
covenant not to sue, and other de minimis settle-
ment terms provide settlors with a high level of
certainty that their responsibilities at the site
are fulfilled, and that they are protected from
future legal actions related to those matters ad-
dressed by the settlement. To date, nearly 5000
individuals, small businesses, and others have
entered into de minimis settlements with EPA to
resolve their Superfund liability at more than
65 sites across the country.
What other settlement provisions
are important?
"Payments and Premiums" - Although the
amount a de minimis settlor may pay varies
from site to site, in general, the payment amount
is calculated by combining a basic payment and
a premium payment. The basic payment is
based on the estimated cost to clean up the site
and the amount of the de minimis party's waste
as a percentage of the total waste at the site.
The premium payment is associated with
the protection from further EPA lawsuits that is
provided by the "covenant not to sue." Pre-
mium amounts vary according to a variety of
factors specific to both the site and the settle-
ment, but typically range from 50 -100% of the
basic payment.
"Reopeners" - If you enter into a de minimis
settlement with the EPA, you will likely be asked
to certify that your waste contribution is the
amount (and type) that you claim. After the
settlement is finalized, if new information indi-
cates that your contribution is actually greater
than you originally certified, the settlement may
be "reopened" for renewed consideration. Other
types of reopeners may also be included.
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What is Superfund?
Superfund is a federal program, adminis-
tered by the Environmental Protection Agency,
that is designed to clean up hazardous sub-
stances (or "waste") that may pose a threat to
human health or the environment. The full
name of the law is the Comprehensive Environ-
mental Response, Compensation, and Liability
Act of 1980 (CERCLA).
Many Superfund sites are frequently areas
or facilities where solvents, sludges, heavy met-
als, or other wastes have been disposed. These
sites range in size from a 1 /4-acre metal plating
shop to a 250-square mile mining complex. Con-
tamination from these sites is often found in the
soil, ground water, and/or nearby streams and
lakes.
Who pays for cleanups?
When Congress enacted Superfund, it in-
tended to "make the polluters pay" for the cost
of cleaning up these sites. To achieve this goal,
EPA seeks to hold those parties who contrib-
uted to the contamination responsible for the
cost of cleanup. Such parties may be asked to
help pay for the cleanup of a site even if they
acted in full accordance with the law at the time
they disposed of the waste.
Superfund encourages EPA to settle with
these responsible parties outside of court, but
also authorizes the Agency to bring actions in
court to require responsible parties to pay for
(or perform) the cleanup.
In some cases, when no responsible parties
can be identified, the cost is borne by the tax-
payers. At these sites, the cleanup is paid for
out of a Trust Fund set up by Congress to ad-
dress this problem.
v."~. o:.;.>.:, li. 0001/4-3590
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What is Alternative Dispute
Resolution?
Alternative Dispute Resolution (ADR) is a
collection of methods to resolve legal disputes
outside of court. ADR normally involves the
use of neutral third parties who are skilled in a
variety of ADR approaches to increase the ef-
fectiveness of settlement discussions.
At sites where numerous de minimis parties
have been identified, it may be most efficient
for such parties to coalesce into a group and
appoint a representative to negotiate with
EPA and/or the other PRPs at the site. A neu-
tral ADR professional can assist greatly in the
formation of a de mmimis group, in the dissemi-
nation of information, and most importantly,
in the negotiations process.
Where can I get more information?
To find out more about de minimis settle-
ments, and how you might be involved, contact
the nearest Regional U.S. Environmental Pro-
tection Agency Superfund program office. Ask
to speak to the attorney, project manager, or
community relations representative assigned to
your site.
Office of Solid Waste and Emergency Response
"^ _-
3 Office of Waste Programs Enforcement
August 1993
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