United Slates
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
&EPA
DIRECTIVE NUMBER: 9634-8
TITLE: Convenants Not To Sue Under SARA
APPROVAL DATE: ju]^lo,i987
EFFECTIVE DATE: ju^ 10,1987
ORIGINATING OFFICE: OECM,DOJ,OWPE
Q FINAL
DDRAFT
LEVEL OF DRAFT
C? A — Signed by AA or OAA
OB — Signed by Office Director
DC — Review & Comment
REFERENCE (other documents):
SWER OSWER OSWER
DIRECTIVE DIRECTIVE Dl
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United Slates
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
&EPA
DIRECTIVE NUMBER: 9634-8
TITLE: Convenants Not To Sue Under SARA
APPROVAL DATE: ju]^lo,i987
EFFECTIVE DATE: ju^ 10,1987
ORIGINATING OFFICE: OECM,DOJ,OWPE
Q FINAL
DDRAFT
LEVEL OF DRAFT
C? A — Signed by AA or OAA
OB — Signed by Office Director
DC — Review & Comment
REFERENCE (other documents):
SWER OSWER OSWER
DIRECTIVE DIRECTIVE Dl
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_ _^ _ United States Environmental Protection Agency i Directive Number
jQLCDA Washington, DC 20460
vxcnr^ OSWER Directive Initiation Request
2. Oriqlnator Information
Name of Contact Person Mail Code Office
John F. Cross Wh-527 0
3. Title
Convenants Not To Sue Under SARA
WPE 47°5-6e7 70 *
4. Summary of Directive (include brief statement of purpose)
This memorandum updates the Interim Settlement Policy by providing guidance
on the implementation of the mandatory and discretionary provisions of SARA relation
to use of convenants not to sue in consent decrees. Attached to this guidance is a
model convenant not to sue.
5. Keywords
Convenants Not To Sue Under SARA.
6a. Does This Directive Supersede Previous Directive(s)?
X No
b. Does it Supplement Previous Oirective(s)'.> v
A No
7. Draft Level
X A - Signed by AA/DAA 8 - Signed by Office Director
Yes What directive (number, title)
Yes What directive (number, title)
C - For Review & Comment D - In Development
8. Document to be distributed to States by Headquarters?
X
Yes
No
This Request Meets OSWER Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator
l**4**^*S ^ 2fahr+-<>
1 0. Name and Title of Approving Official
Date
•7-2>i- 81
Date
EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete.
OSWER OSWER OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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9834,8
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
I 0 1987
MEMORANDUM
SUBJECT:
FROM:
Covenants Noc To Sue Under SARA
Thomas L. Adams, Jr.
JS V n i. i
Assistant Administrator for Enforcement
and
J. Winston Porter
Assistant Administrator for Solid Waste
and Emergency Response
TO
F. Henry Habicht II
Assistant Attorney General
U.S. Department of Justice
Regional Administrators, Regions I - X
I. Introduction
In the Interim CERCLA Settlement Policy, 50 Fed. Reg. 5034
(1986), EPA provided guidance on when releases from liability were
appropriate as consideration for an agreement involving a private
party cleanup or reimbursement of EPA's costs.. That policy
expressed a strong preference for issuing releases in the form of
covenants not to sue. The Superfund Amendments and Reauthorization
Act (SARA) confirms the authority of EPA to release responsible
parties from certain liabilities in settlement of an EPA claim
under CERCLA. In Section 122(f) of SARA, Congress adopted EPA's
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policy of drafting releases in the form of covenants not to sue
and also established specific requirements governing the Agency's
ability to issue such covenants. SARA includes several express
requirements regarding covenants not to sue and also gives the
Agency discretion to place further conditions on the extent of
such covenants. This memorandum updates the Interim Settlement
Policy by providing guidance on the implementation of the mandatory
and discretionary provisions of SARA relating to use of covenants
not to sue in consent decrees. Attached to this guidance is a
model covenant not to sue.
II. Summary of Statutory Provisions
Section 122(f)(1) authorizes EPA to covenant not to sue
responsible parties for "any liability to the United States under
this Act, including future liability, resulting from a release or
threatened release addressed by a remedial action . . . ." Such
covenants may be provided if each of the following conditions are
met:
A) The covenant not to sue is in the public interest;
B) The covenant not to sue would expedite the response;
C) The settlor Is in full compliance with a consent decree
under S 106 addressing the release or threatened release;
D) EPA has approved the response action.
§ 122(f)(1).
Prior to entering a covenant not to sue under Section
122(f)(1), EPA must assess the appropriateness of the covenant
under seven factors set forth in Section 122(f)(4). These factors,
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which relate Co the effectiveness, reliability, and enforceability
of the remedy, and the nature of the risk remaining at the site,
include:
A) The effectiveness and reliability of the remedy, in
light of the other alternative remedies considered for
the facility concerned.
B) The nature of the risks remaining at the facility.
C) The extent to which performance standards are included
in the order or decree.
D) The extent to which the response action provides a
complete remedy for the facility, including a reduction
in the hazardous nature of the substances at the facility.
E) The extent to which the technology used in the response
action is demonstrated to be effective.
F) Whether the Fund or other sources of funding would be
available for any additional remedial actions that might
eventually be necessary at the facility.
G) Whether the remedial action will be carried out, in whole
or in significant part, by the responsible parties them-
selves.
§ 122(f)(4).
In addition to authorizing EPA, in its discretion, to covenant
not to sue for liability, including future liability, Section 122(f)
mandates that EPA grant a covenant not to sue for future liability
in two specific circumstances. Section 122(f)(2) provides that
where the four conditions in Section 122(f)(1) have been met, EPA
must issue a covenant not to sue for "future liability for future
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- 4 -
releases" if: (1) EPA selects a remedial accion involving offsite
disposal of a hazardous substance after rejecting an onsite response
which fully complies with the National Contingency Plan (NCP); or
(2) the selected remedial action requires the destruction, elimi-
nation, or permanent immobilization of hazardous substances. Such
a covenant may only address the portion of the remedial action
which involves these two situations.
Assuming that a covenant not to sue for future liability is
otherwise authorized under Section 122(f), Section 122(f)(3)
prescribes that a covenant not to sue for future liability shall
not take effect until EPA has certified that the remedial action
has been completed in accordance with the terms of CERCLA.
Moreover, whether the covenant is for future or present liability,
Section 122(f)(5) conditions such covenants upon satisfactory
performance of the terms of the settlement agreement.
Finally, Section 122(f)(6) addresses exceptions to covenants
not to sue for future liability provided under Section 122(f)(1).
For example, EPA must except from any covenant not to sue for
future liability any future liability related to the release or
threatened release which is the subject of the covenant where such
liability arises from conditions unknown at the time the remedial
action is certified complete. § 122(f)(6)(A). This "reopener" for
unknown conditions is not required for special covenants granted
under Section 122(f)(2) or for de rainimis settlements under Section
122(g). In addition, Section 122(f)(6)(B) provides that a waiver
for the unknown conditions reopener in Section 122(f)(6)(A) may be
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- 5 -
granted in "extraordinary circumstances." In determining whether
extraordinary circumstances exist, EPA must consider "such factors
as those referred to in [Section 122(f)](4)J and volume, toxicity,
mobility, strength of evidence, ability to pay, litigative risks,
public interest considerations, precedential value, and inequities
and aggravating factors." § 122(f)(6)(B). Nonetheless, even if
extraordinary circumstances exist, the unknown conditions exception
may not be waived if other terras of the agreement do not provide
reasonable assurance that public health and the environment will be
protected from any future releases. Section 122(f)(6)(C) authorizes
EPA to except from covenants not to sue future enforcement actions
necessary to protect public health, welfare, and the environment.
III. Explanation of Key Statutory Provisions
In interpreting Section 122(f) and developing a policy for its
implementation, EPA has looked to the expressions of Congressional
intent contained in other parts of SARA and the relevant
legislative history. These sources indicate that Section 122(f)
serves several goals, including:
1) encouraging private party cleanups by providing EPA with
the authority to grant covenants noc to sue;
2) encouraging more permanent cleanups by codifying the
principle that the more permanent the cleanup the more
complete the release;
3) protecting the public by ensuring that responsible
parties remain liable for future releases requiring
future remedial action.
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A. Present Liabi.li.cy and Future Liability
In Section 122(f)(1), Congress authorizes EPA to issue
covenants not to sue for both present liability and future
liability. In the context of settlements involving remedial action,
EPA interprets present liability as a responsible party's obligation
to pay those response costs already incurred by the United States
related to a site and to complete those remedial activities set
forth in the Record of Decision (ROD) for that site, including
meeting any performance standards or other measures established
through the remedial design (RD) process. Future liability refers
to a responsible party's obligation to perform any additional
response activities at the site which are necessary to protect
public health and the environment.
In deciding whether to provide a covenant not to sue for
present liability, EPA must consider the criteria in Sections
122(f)(1) and 122(f)(4). These factors essentially codify the
approach taken in EPA's Interim CERCLA Settlement Policy. There,
EPA stated as a general principle that "the more effective and
reliable the remedy, the more likely it is that the Agency can
negotiate a more expansive release." In judging the reliability
and effectiveness of the remedy, the Interim Settlement Policy
placed special emphasis on whether the remedy requires that
health-based performance standards be met. As noted above,
Section 122(f)(4) explicitly makes performance standards a factor
to be considered and EPA continues to regard this factor as
critical. Where the criteria in Section 122(f)(1) are fulfilled
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and where consideration of the factors in Section 122(f)(4) suggests
the remedy is reliable, effective, and enforceable (such as, for
example, where the remedy includes numerical performance standards),
a covenant not to sue for present liability may be provided which
takes effect upon approval of the consent decree by the court. On
the other hand, where the criteria in paragraph (f)(1) are met but
the factors in Section 122(f)(4) indicate that some questions
remain about the reliability, effectiveness, and enforceability of
the remedy, any covenant not to sue for present liability, if
appropriate at ?.ll, would have to be conditioned on a demonstration
of the effectiveness and reliability of that remedy.
Covenants not to sue for future liability are also made
contingent on the criteria set forth in Section 122(f)(1) and the
factors enumerated in Section 122(f)(4). When these conditions
are met, EPA may, in its discretion, provide a covenant not to sue
for future liability but such a covenant, according to Section
122(f)(3), may not take effect until EPA certifies that the remedial
action has been completed. Prior to certification, therefore, the
settling party remains fully responsible for any future liability
for future remedial action necessary at the site. Following certi-
fication, unless a special covenant under Section 122(f)(2) is
required or extraordinary circumstances are present, the covenant
not to sue for future liability is subject to a reopener covering
(1) unknown conditions as mandated by Section 122(f)(6)(A), (2)
any other conditions EPA deems advisable based on the Section
122(f)(4) factors, and (3) future enforcement activity necessary
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and appropriate to assure protection of public health, welfare,
and the environment as provided in Section 122(f)(6)(C).
B. Certification of Completion of the Remedial Action
Section 122(f)(3) specifies that a covenant not to sue for
future liability shall not take effect until EPA certifies the
remedial action is complete. In the context of paragraph 122(f)(3).
EPA interprets completion of the remedial action as that date at
which remedial construction has been completed. Where a remedy
requires operational activities, remedial construction would be
judged complete when it can be demonstrated that the operation of
the remedy is successfully attaining the requirements set forth in
the ROD and RD.
The exact point when EPA can certify completion of a
particular remedial action depends on the specific requirements of
that remedial action. Each consent decree should include a detailed
list of the those activities which must be completed before certi-
fication can occur.
Certification of completion under Section 122(f)(3) does not
in any way affect a settling parties' remaining obligations under
the consent decree. All remedial activities, including maintenance
and monitoring, must be continued as required by the terms of the
consent decree.
C. Reopeners
Under the CERCLA Interim Settlement Policy, EPA required that
there be included in every consent decree reopeners covering
situations where EPA received additional information after the
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time of che agreement regarding site conditions or scientific
determinations which indicates that the site may pose an imminent
and substantial endangerment to the public health or welfare or
to the environment. Under Section 122(f), a slightly different
approach to reopeners must be followed. Section 122(f) provides
that for future liability, no covenant not to sue shall be effective
prior to certification of completion of the remedial action.
Technically, therefore, since there is no release of future liability
prior to certification, there is no need for reopeners in that time
period. Reopeners for future liability only become necessary after
certification, when the covenant not to sue takes effect.
As to reopeners regarding future liability, Congress expressly
required a reopener for unknown conditions. In contrast to the
Interim Settlement Policy, however, Congress expressly eliminated
any endangerment threshold for that reopener. Congress also autho-
rized EPA, in Section T22(f)(6)(C), to include any other reopeners
"necessary and appropriate to assure protection of public health,
welfare, and the environment." EPA believes that it is in the
public interest and consistent with Congressional intent to require
a second reopener covering situations where additional information
reveals that the remedy is no longer protective of public health or
the environment. It is not in the public interest to release
responsible parties from liability for additional response actions
made necessary by new information, given, as noted in the Interim
Settlement Policy, "the current state of scientific uncertainty
concerning the impacts of hazardous substances, our ability to
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dececc them, and the effectiveness of remedies at hazardous waste
sites." 50 Fed. Reg. at 5039.
Congressional concern with situations where the remedy fails
to protect public health or the environment can be seen in SARA's
mixed funding and five-year review provisions. The mixed funding
provision in Section 122(b) states that if mixed funding is adopted
at a particular site, "the Fund shall be subject to an obligation
for subsequent remedial actions at the same facility but only to
the extent that such subsequent actions are necessary by reason of
the failure of the original remedial action. Such obligation shall
be in a proportion equal to, but not exceeding, the proportion
contributed by the Fund for the original remedial action." This
provision anticipates that the responsible parties who have settled
retain liability for additional work necessary to address remedy
failure. Further support for this proposition can be found in the
Conference Report statement that the continuing proportional Fund
obligation in mixed funding cases is a settlement incentive. H.R.
Rep. No. 99-962, 99th Cong., 2d Sess. 252 (1986). The Fund's
continuing obligation would only be an incentive to settlement if
in non-mixed funding cases settling parties retained liability
where the remedy fails to protect public health or the environment.
The five-year review provision in Section 12-t(c) also addresses
Congress1 concern for situations where the remedy fails to protect
public health and the environment by mandating periodic reviews
to assure that remedial actions do just that. If a remedy is found
not to protect public health or the environment, the statute provides
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9834,8
chat EPA may Cake or require such additional remedial accion as is
necessary.
Congressional concern chac remedial action might fail to
protect public health and the environment was not limited narrowly
to a focus on the reliability of the remedial technology at the
site. Rather, this concern apparently extended to any situation
in the future at the site which is judged to present a threat to
public health and the environment. EPA will follow this interpre-
tation of remedy failure. For example, should health effects
studies reveal that the health-based performance levels relied
upon in the ROD are not protective of public health or the environ-
ment, and that public health or the environment will be threatened
without further response action, then the EPA could invoke the
remedy failure reopener. The reopener for remedy failure, however,
is not meant to require changes purely based on advances in tech-
nology. Under the reopener, EPA would not compel settling parties
to implement newly-developed, more permanent remedial technology
unless EPA can show that the present remedy does not protect public
health or the environment. Neither is the remedy failure reopener
intended to give EPA the option to make changes in a remedial
action absent additional information received following the entry
of the consent decree. EPA does not consider the" phrase "informa-
tion received, in whole or in part, after entry of the consent
decree," as used in the attached model covenant, to include a new
analysis of the same information comprising the record of the
initial remedy selection decision.
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9834.S
In short, this reopener is similar co che reopener for new
scientific information provided for in the Interim Settlement
Policy, although the imminent and substantial endangerment thresh-
old has not been included. To require a showing of imminent and
substantial endangerment would be inconsistent with the provision
in Section 122(f) of SARA with regard to unknown conditions as well
as the provisions concerning future response work in Section 122(f)
(6)(C) and Section 121(c). Moreover, it is the Agency's view that
requiring different showings for the two reopeners would lead to
protracted disputes about which reopener applied to situations
necessitating additional response activity.
EPA believes that in order to give settl )rs some measure of
certainty prior to certification, the most r<_- isonable means to
implement the authority in Section 122(f) is :o specify in consent
decrees those pre-certification situations in which EPA would seek
further remedial action. Those situations at a minimum would
include the circumstances described in the future liability
reopeners:
1) discovery of previously unknown conditions; and
2) situations where additional information reveals that
the remedy is no longer protective of public health and
the environment.
Thus, prior to certification of completion of the remedial action,
EPA will reserve its right to institute new proceedings to compel,
or recover costs for, further response action made necessary by
information received, in whole or in part, after entering of the
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consent decree related to either unknown conditions or remedy
failure. Following certification of completion of the remedial
action, EPA will reserve its right to institute proceedings
only to address information received after certification of
completion of the remedial action related to unknown conditions or
remedy failure. Pre-certification reopeners for unknown conditions
and remedy failure apply to all covenants not to sue, even to
special covenants under Section 122(f)(2).
Particularly in the pre-certification period, the relationship
of the remedy to the covenant and the reopeners should be carefully
considered. EPA may insist on broader reopeners where the consent
decree does not provide for a remedy that meets the preference in
Section 121(b)(l) for a permanent and significant reduction of the
volume, toxicity, or mobility of the hazardous substances. In
those instances, EPA shall assess the need for broader reopeners
in the covenant not to sue based on the factors identified in Sec-
tion 122(f)(4). Nevertheless, once EPA has determined what reopeners
are appropriate for the pre-certification period, EPA will agree
in the covenant to institute new proceedings only where those
reopener provisions are met.
Although covenants not to sue must include, at a minimum, the
above-described reopeners during the pre-certification period,
reopeners are not mandated in all circumstances in covenants not
to sue applicable to the period following completion of the remedial
action. Two statutory provisions address this period. First,
Section 122(f)(2) mandates that EPA issue a special covenant not
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co sue for future liability in two narrow circumstances: (1) off-
site disposal following rejection of an onsite remedy complying
with the NCP; and (2) complete destruction of the hazardous sub-
stances. Such a special covenant may not contain reopeners for
the post-completion period. Second, Section 122(f)(6)(B) specifies
that in extraordinary circumstances EPA may exclude a post-comple-
tion reopener for unknown conditions. This extraordinary circum-
stance waiver is only available where other terms in the agreement
provide all reasonable assurances that public health and the
environment will be protected. As a policy matter, EPA would also
not include the reopener for later-received information relating
to remedy failure in a situation where the coaditions in Section
122(f)(6)(B) are met. EPA, however, is barred from granting
covenants not to sue without reopeners absent a finding that -a
special covenant is appropriate or that extraordinary circumstances
exist.
D. Extraordinary Circumstances
Section 122(f)(6)(B) provides that EPA may .forego including
a reopener for unknown conditions when extraordinary circumstances
exist and "other terms, condition, or requirements of the agreement
... are sufficient to provide all reasonable assurances that public
health and the environment will be protected from" any future
releases at or from the facility."
The legislative history on this provision indicates that it
should be narrowly applied. The House-Senate Conference Report
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9834-8
states that "[t]his provision should be implemented in a manner
consistent with the current application of the Administration
settlement policy as to unknown conditions." Conference Report,
H.R. Rep. No. 99-962, 99th Cong., 2d Sess. 255 (1986). By this
statement, the Conference Committee endorsed EPA's extremely
limited use of the extraordinary circumstances waiver for reopeners
contained in the CERCLA Interim Settlement Policy.
In Section 122(f)(6)(B), Congress lists as relevant factors
regarding extraordinary circumstances: "those [factors] referred
to in [Section 122(f)](4) and volume, toxicity, mobility, strength
of evidence, ability to pay, litigative risks, public interest
considerations, precedential value, and inequities and aggravating
factors." EPA has already explained how many of these factors will
be interpreted in the Interim Settlement Policy.
A finding of extraordinary circumstances alone is not
sufficient to meet the requirements of Section 122(f)(6)(B). That
provision also mandates that the unknown conditions reopener may
only be waived if other terms of the agreement provide all reason-
able assurances that public health and the environment will be
protected. One factor which may be considered in determining
whether all reasonable assurances have been provided is whether a
settling party has offered a premium payment to.-insure against the
risk that future remedial action will be required at the site.
One of the instances where EPA has used the extraordinary
circumstances exception in the past is where a responsible party
has filed for bankruptcy. Whether or not a responsible party's
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bankruptcy filing presents extraordinary circumstances will depend
on a number of case-specific factors involving, among other things,
the grounds upon which the party is liable, and the type of
bankruptcy relief - liquidation or reorganization - that is being
sought by the debtor. EPA will not grant a debtor a covenant not
to sue which is broader than a discharge under the bankruptcy laws
but neither will EPA make settlement impossible by insisting on a
covenant narrower than the discharge the debtor is entitled to by
operation of the bankruptcy laws.
Waivers of reopeners under Section 122(f)(6)(B) will require
prior approval by the Assistant Administrators for OECM and OSWER
and the Assistant Attorney General as provided in the Interim
Settlement Policy. 50 Fed. Reg. at 5040.
E. Special Covenants
Special covenants not to sue under Section 122(f)(2) are
authorized for two extremely limited circumstances. First, under
Section 122(f)(2)(A) a special covenant is appropriate where EPA
selects a remedial action involving offsite disposal after rejecting
a proposed onsite remedy which is consistent with the NCP. This
special covenant, it should be emphasized, is only available where
EPA has determined that an onsite remedy fully complies with the
requirements of the NCP, but that onsite remedy is rejected in
favor of offsite disposal. It is not sufficient for EPA to have
merely considered onsite proposals in choosing the remedy. Further,
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che Conference Report makes clear chac this provision was adopted
in the context of Section 121 requirements regarding offsite disposal
and therefore EPA will only grant this special covenant in decrees
involving remedies selected under Section 121. Conference Report,
H.R. Rep. 99-962, 99th Cong.. 2d Sess. 254 (1986).
Second, under Section 122(f)(2)(B), EPA will issue a
special covenant where the remedy involves each of the following
elements:
(1) treatment of hazardous substances so as to
(2) destroy, eliminate, or permanently immobilize the
hazardous constituents of such substances, and
(3) EPA determines that
(a) the substances no longer present any current or
currently forseeable future significant risk to
public health, welfare, or the environment,
(b) no byproduct of the treatment or destruction process
presents any significant hazard to public health,
welfare, or the environment, and
(c) all byproducts are themselves treated, destroyed,
or contained in a manner which assures that such
byproducts do not present any current or currently
foreseeable future significant risk to public
health, welfare, or the environment.
The term "permanent immobilization" applies only to a site where
treatment technologies change the fundamental nature and character
of the hazardous substances so that no person faces a significant
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risk of being exposed Co the hazardous substance. Conference
Report, H.R. Rep. No. 99-962, 99th Cong., 2d Sess. 254-55 (1986).
Use of "permanent" storage containers or other containment technology
does not qualify as permanent immobilization under this provision.
Finally, under either of the two circumstances in Section
122(f)(2), the special covenant applies only to those hazardous
substances actually transported offsite or destroyed, eliminated,
or permanently immobilized. Thus to the extent that hazardous
substances remain onsite, the standard reopeners for future
liability must be included in the covenant not to sue. For
example, Site X has soil contamination to a depth of 30 feet but
under present health standards only the first five feet need to
be incinerated. Assuming the incineration process meets the
requirements of Section 122(f)(2)(B), a special covenant may be
granted for the incinerated soil but under no circumstances would
a covenant not to sue for future liability without the standard
reopeners be issued for the contaminated lower 25 feet of soil.
IV. Status of Interim Settlement Policy
The Interim Settlement Policy remains in effect to the extent
not contradicted by SARA or by this or any other subsequent
guidance. Nonetheless, a number of points from that policy are
worth re-emphasizing:
1) covenants not to sue will not be issued for redisposal
liability unless Section 122(f)(2)(A) applies;
2) covenants not to sue in agreements where EPA has performed
the remedy and EPA is seeking only the recovery of its
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coses should be no more expansive than covenants not to
sue in consent decrees where the responsible parties
agree to do the remedy;
3) a covenant not to sue may be given only to the responsible
party providing consideration for the covenant;
4) the covenant not to sue must not cover any claims other
than those involved for that site - thus unless unusual
factors are present the covenant not to sue will apply
only to claims under Sections 106 and 107 of CERCLA and
Section 7003 of RCRA;
5) the covenant not to sue must expressly be limited to
civil claims;
6) a covenant not to sue for a remedial investigation and
feasibility study or a removal action must be limited to
the work actually completed;
7) a covenant not to sue regarding natural resources may
only be provided by the Federal trustee responsible for
those resources;
8) responsible parties must release any related claims
against the Hazardous Substances Superfund.
DISCLAIMER
The policies and procedures established in this document
are intended solely for the guidance of government personnel.
They are not intended and cannot be relied upon to create any
rights, substantive or procedural, enforceable by any party
in litigation with the United States. The Agency reserves the.
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right to act at variance with these policies and procedures and
to change them at any time without public notice.
Attachment
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9834-8
COVENANT NOT TO SUE
L. A. Except as specifically provided in Subparagraph C, Che
United States covenants not to sue the settling parties for
Covered Matters. Covered Matters shall include any and all
civil liability to the United States for causes of action
arising under §§ 106 and 107(a) of CERCLA and S 7003 of RCRA
relating to the Site.
B. With respect to future liability, this covenant not to sue
shall take effect upon certification by EPA of the completion
of the remedial action. A determination regarding certifi-
cation of completion will be made by EPA within [one year]
of successful completion of the activities listed in
Appendix .
C. Notwithstanding any other provision in this Consent Decree,
the United States reserves the right to institute proceedings
in this action or in a new action (1) seeking to compel
Settling Parties to perform additional response work at the
Site or (2) seeking reimbursement of the United States's
response coses, if:
1) for proceedings prior to EPA certification of
completion of the remedial action,
(i) conditions at the Site, previously unknown
to the United States, are discovered after the
entry of this Consent Decree, or
(ii) information is received, in whole or in part,
after the entry of this Consent Decree,
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and these previously unknown conditions or this
information indicates that the remedial action is
not protective of human health and the environment;
2) for proceedings subsequent to EPA certification
of completion of the remedial action,
(i) conditions at the Site, previously unknown
to the United States, are discovered after the
certification of completion by EPA, or
(ii) information received, in whole or in part,
after the certification of completion by EPA,
and these previously unknown conditions or this
information indicates that the remedial action is
not protective of human health and the environment.
D. The United States's right to institute proceedings in this
action or in a new action seeking to compel Settling
Parties to perform additional response work at the Site
or seeking reimbursement of the United States for
response costs at the Site, may only be exercised where
the conditions in subparagraph C are met. [Caution: check
to insure that this subparagraph does not waive other
reserved rights in the decree relating to additional response
work].
E. Notwithstanding any other provision in this Consent Decree,
the covenant not to sue in subparagraph A shall not relieve
the settling parties of their obligation to meet and maintain
compliance with the requirements set forth in this Consent
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9834.8
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Decree including the Record of Decision and Remedial Design
for the Site which is incorporated herein.
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