'Interim CERCLA Settlement Policy http://es.epa.gov/oeca/osre/841205 .html
Interim CERCLA Settlement Policy
**************** DISCLAIMER ****************
The following electronic file contains the text of a policy
issued by the U.S. Environmental Protection Agency (EPA).
This file has been reformatted to make it available to you
in electronic form. Formatting (margins, page numbering,
etc.) may be different than the original hard copy to make
the document more easily readable on your computer screen.
Where graphics have been removed, the editor has noted it
in the text. This electronic file is a courtesy copy of
the official policy. If any discrepancies are found, the
file copy (hard copy original) which resides at the U.S.
EPA provides the official policy.
***************************
December 5, 1984 OSWER Directive # 9835.0
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MEMORANDUM
SUBJECT: Interim CERCLA Settlement Policy
From: Bee M. Thomas, Assistant Assistant Administrator
Office of Solid Waste and Emergency Response
Courtney M. Price, Assistant Administrator
Office of Enforcement and Compliance Monitoring
F. Henry Habicht, II, Assistant Attorney General
Land and Natural Resources Division
Department of Justice
To: Regional Administrators, Regions I-X
This memorandum sets forth the general principles governing private
party settlements under CERCLA, and specific procedures for the Regions
and Headquarters to use in assessing private party settlement proposals.
It addresses the following topics:
1. general principles for EPA review of private-party cleanup
proposals;
2. management guidelines for negotiation;
3. factors governing release of information to potentially responsible
parties;
4. criteria for evaluating settlement offers;
lofl? 12/30/9709:42:49
-------
Interim CERCLA Settlement Policy http://es.epa.gov/oeca/osre/841205 .html
5. partial cleanup proposals;
6. contribution among responsible parties;
7. releases and covenants not to sue,-
8. targets for litigation:
9. timing for negotiations;
10. management and review of settlement negotiations.
APPLICABILITY
This memorandum incorporates the draft Hazardous Waste Case
Settlement Policy, published in draft in December of 1983. It is
applicable not only to multiple party cases but to all civil hazardous
waste inforcement cases under Supperfund. It is generally applicable to
imminent hazard enforcement actions under section 7003 of RCRA.
This policy establishes criteria for evaluating private party
settlement proposals to conduct or contribute to the funding of response
actions, including removal and remedial actions. It also addresses
settlement proposals to contribute to funding after a response action
has been completed. It does not address private-party proposals to
conduct remedial investigations and feasibility studies. These
proposals are to be evaluated under criteria established in the policy
guidance from Lee M. Thomas, Assistant Administrator, Office of Solid
Waste and Emergency Response, and Courtney Prince, Assistant
Administrator, Office of Enforcement and Compliance Monitoring entitled
"Participation of Potentially Responsible Parties in Development of
Remedial Investigations and Feasibility Studies under CERCLA". (March
20, 1984)
I. GENERAL PRINCIPLES
The Governments's goal in implementing CERCLA is to achieve
effective and expedited cleanup at as many uncontrolled hazard waste
facilities as possible. To achieve this goal, the Agency is committed
to a strong and vigorous enforcement program. The Agency has made major
advances in securing cleanup at some of the nations's worst hazardous
waste sites because of its demonstrated willingness to use the Fund and
to pursue administrative and judicial enforcement actions. In addition,
the Agency has obtained key decisions, on such issues as joint and
several liability, which have further advanced its enforcement efforts.
The Agency recognizes, however, that Fund-Financed cleanups,
administrative action and litigation will not be sufficient to
accomplish CERCLA1s goals, and that voluntary cleanups are essential to
a successful program for cleanup of the nations's hazardous waste sites.
The Agency is therefore re-evaluating its settlement policy, in light of
three years experience with negotiation and litigation of hazardous
waste cases, to remove or minimize if possible the impediments to
voluntary cleanup.
As a result of this reassessment, the Agency has identified the
following general principles that govern its Superfund enforcement
program.
ATTACHMENT
DEC 5 1984
MEMORANDUM
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
2 of 17 12/30/9709:42:49
-------
Interim CERCLA Settlement Policy http://es.epa.gov/oeca/osre/841205 .html
SUBJECT: Interim CERCLA Settlement Policy
FROM: Lee M. Thomas, Assistant Administrator /s/
Office of Solid Waste and Emergency Response
Courtney M Price, Assistant Administrator /s/
Office of Enforcement and Compliance Monitoring
F. Henry Habicht, II, Assistant Attorney General /s/
Land and Natural Resources Division
Department of Justice
TO: Regional Administrators, Regions I-X
This memorandum sets forth the general principles governing private
party settlements under CERCLA, and specific procedures for the Regions
and Headquarters to use in assessing private party settlement proposals.
It addresses the following topics:
1. general principles for EPA review of private-party cleanup
proposals;
2. management guidelines for negotiation;
3. factors governing release of information to potentially responsible
parties;
4. criteria for evaluating settlement offers;
5. partial cleanup proposals;
6. contribution among responsible parties;
7. releases and covenants not to sue;
8. targets for litigations;
9. timing for negotiations;
10. management and review of settlement negotiations.
APPLICABILITY
This memorandum incorporates the draft Hazardous Waste Case
Settlement Policy, published in draft in December of 1983. It is
applicable not only to multiple party cases but to all civil hazardous
waste enforcement cases under Superfund. It is generally applicable to
imminent hazard enforcement actions under section 7003 of RCRA.
This plicy establishes criteria for evaluating private party
settlement proposals to conduct or contribute to the funding of response
actions, including removal and remedial actions. It also addresses
settlement proposals to contribute to funding after a response action
has been completed. It does not address private-party proposals to
conduct remedial investigations and feasibility studies. These
proposals are to be evaluated under criteria established in the policy
guidance from Lee M. Thomas, Assistant Administrator, Office of Solid
Waste and Emergency Response, and Courtney Price, Assistant
Administrator, Office of Enforcement and Compliance Monitoring entitled
"Participation of Potentially Responsible Parties in Development of
Remedial Investigations and Feasibility Studies under CERCLA". (March
20, 1984)
I. GENERAL PRINCIPLES
The Government's goal in implementing CERCLA is to achieve
effective and expedited cleanup at as many uncontrolled hazardous waste
facilities as possible. To achieve this goal, the Agency is committed
3 of 17 12/30/97 09:42:50
-------
Interim'CERCL A Settlement Policy http://es.epa.gov/oeca/osre/841205.html
to a strong and vigorous enforcement program. The Agency has made major
advances in securing cleanup at some of the nation's worst hazardous
waste sites because of its demonstrate willingness to use the Fund and
to pursue administrative and judicial enforcement actions. In addition,
the Agency has obtained key decisions, on such issues as joint and
several liability, which have further advanced its enforcement efforts.
The Agency recognizes, however, that Fund-financed cleanups,
administrative action and litigation will not be sufficient to
accomplish CERCLA's goals, and that voluntary cleanups are essential to
a successful program for cleanup of the nations's hazardous waste sites.
The Agency is therefore re-evaluating its settlement policy, in light of
three years experience with negotiation and litigation of hazardous
waste cases, to remove or minimize if possible the impediments to
voluntary cleanup.
As a result of this reassessment, the Agency has identified the
following general principles that govern its Superfund enforcement
program:
The goal of the Agency in negotiating private party cleanup and in
settlement of hazardous waste cases has been and will continue to
be to obtain complete cleanup by the responsible parties, or
collect 100% of the costs of the cleanup action.
Negotiated private party actions are essential to an effective
program for cleanup of the nations's hazardous waste sites. An
effective program depends on a balanced approach relying on a mix
of Fund-financed cleanup, voluntary agreements reached through
negotiations, and litagation. Fund-financed cleanup and litigation
under CERCLA will not in themselves be sufficient to assure the
success of this cleanup effort. In addition, expeditious cleanup
reached through negotiated settlemeents is preferable to protracted
litigation.
A strong enforcement program is essential to encourage voluntary
action by PRPs. Section 106 actions are particularly valuable
mechanisms for compelling cleanups. The effectiveness of
negotiation is integrally related to the effectiveness of
enforcement and Fund-financed cleanup. The demonstrated
willingness of the Agency to use the Fund to clean up sites and to
take enforcement action is bur most important tool for achieving
negotiated settlements.
The liability of potentially responsible parties is strict, joint
and several, unless they can clearly demonstrate that the harm at
the site is divisible. The recognition on the part of responsible
parties that they may be jointly and severally liable is a valuable
impetus for these parties to reach the agreements that are
necessary for successful negotiations. Without such an impetus,
negotiations run a risk of delay because of disagreements over the
particulars of each responsible party's contribution to the
problems at the site.
The Agency recognizes that the factual strengths and weaknesses of
a particular case are relevant in evaluating settlement proposals.
The Agency also recognizes that courts may consider differences
among defendants in allocating payments among parties held jointly
and severally liable under CERCLA. While these are primarily the
concerns of PRPs, the Agency will also consider a PRP's
contribution to problems at the site, including contribution of
waste, in assessing proposals for settlement and in identifying
targets for litigation.
Section 106 of CERCLA provides courts with jurisdiction to grant
such relief as the public interest and the equities of the case may
require. In assessing proposals for settlement and identifying
targets for litigation, the Agency will consider aggravating and
mitigating factors and appropriate equitable factors.
4 of 17 12/30/9709:42:50
-------
Interim CERCLA Settlement Policy http://es.epa.gov/oeca/osre/841205.html
In many circumstances, cleanups can be started more quickly when
private parties do the work themselves, rather than provide money
to the Fund. It is therefore preferable for private parties to
conduct cleanups themselves, rather than simply provide funds for
the States or Federal Government to conduct the cleanup.
The Agency will create a climate that is receptive to private party
cleanup proposals. To facilitate negotiations, the Agency will
make certain information available to private parties. PRPs will
normally have an opportunity to be involved in the studies used to
determine the appropriate extent of remedy. The Agency will
consider settlement proposals for cleanup of less than 100% of
cleanup activities or cleanup costs. Finally, upon settling with
cooperative parties, the government will vigorously seek all
remaining relief, including costs, penalties and treble damages
where appropriate, from parties whose recalcitrance made a complete
settlement impossible.
The Agency anticipates that both the Fund and private resources may
be used at the same site in some circumstances. When the Agency
settles for less than 100% of cleanup costs, it can use the Fund to
assure that site cleanup will proceed expeditiously, and then sue
to recover these costs from nonsettling responsible parties. Where
the Federal government accepts less than 100% of cleanup costs and
no financially viable responsible parties remain, Superfund monies
may be used to make up the difference.
The Agency recognizes the value of some measure of finality in
determinations of liability and in settlements generally. PRPs
frequently want some certainty in return for assuming the costs of
cleanup, and we recognize that this will be a valuable incentive
for private party cleanup. PRPs frequently seek a final
determination of liability through contribution protection,
releases or covenants not to sue. The Agency will consider
releases from liability in appropriate situations, and will also
consider contribution protection in limited circumstances. The
Agency will also take aggressive enforcement action against those
parties whose recalcitrance prevents settlements. In bringing cost
recovery actions, the Agency will also attempt to raise any
remaining claims under CERCLA section 106, to the extent
practicable.
The remainder of this memorandum sets forth specific policies for
implementing these general principles.
Section II sets forth the mangement guidelines for negotiating with
less than all responsible parties for partial settlements. This section
reflects the Agency's willingness to be flexible by considering offers
for cleanup of less than 100% of cleanup activities or costs.
Section II sets forth guidelines on the release of information. The
Agency recognizes that adequate information facilitates more successful
negotiations. Thus, the Agency will combine a vigorous program for
obtaining the data and information necessary to facilitate settlements
with a program for releasing information to facilitate communications
among responsible parties.
Sections IV and V discuss the criteria for evaluating partial
settlements. As noted above, in certain circumstances the Agency will
entertain settlement offers from PRPs which extend only to part of the
site or part of the costs of cleanup at a site. Section IV of this memo
sets forth criteria to be used in evaluating such offers. These
criteria apply to all cases. Section V sets forth the Agency's policy
concerning offers to perform or pay for discrete phases of an approved
cleanup.
Sections VI and VII relate to contribution protection and releases
from liability. Where appropriate, the Agency may consider contribution
5 of 17 . 12/30/9709:42:50
-------
Interim CERCLA Settlement Policy http://es.epa.gov/oeca/osre/841205.html
protection and limited releases from liability to help provide some
finality to settlements.
Section VIII sets forth criteria for selecting enforcement cases
and identifying targets for litigaion. As discussed above, effective
enforcement depends on careful case selection and the careful selection
of targets for litigation. The Agency will apply criteria for selection
of cases to focus sufficient resources on cases that provide the
broadest possible enforcement impact. In addition, targets for
litigation will be identified in light of the willingness of parties to
perform voluntary cleanup, as well as conventional litigation management
concerns.
Section IX sets forth the requirements governing the timing of
negotiations and section X the provisions for Headquarters review.
These sections address the need to provide the Regions with increased
flexibility in negotiations and to change Headquarters review in order
to expedite site cleanup.
II. MANAGEMENT GUIDELINES FOR NEGOTIATION
As a guideline, the Agency will negotiate only if the initial offer
from PRPs constitutes a substantial proporation of the costs of cleanup
at the site, or a substantial portion of the needed remedial action.
Entering into discussions for less than a substantial proportion of
cleanup costs or remedial action needed at the site, would not be an
effective use of government resources. No specific numerical threshold
for initiating negotiations has been established.
In deciding whether to start negotiations, the Regions should weigh
the potential resource demands for conducting negotiations against the
likelihood of getting 100% of costs or complete remedy.
Where the Region proposes to negotiate for a partial settlement
involving less than the total costs of cleanup, of a complete remedy,
the Region should prepare as part of its Case Negotiations Strategy a
draft evaluation of the case using the settlement criteria identified in
section IV. The draft should discuss how each of the factors in section
IV applies to the site in question, and explain why negotiations for
less than all of the cleanup costs, or a partial remedy, are
appropriate. A copy of the draft whould be forwarded to Headquarters.
The Headquarters review will be used to identify major issues of
national significance or issues that may involve significant legal
precedents.
In certain other categories of cases, it may be appropriate for the
Regions to enter into negotiations with PRPs, even though the offers
from PRPs do not represent a substantial portion of the costs of
cleanup. These categories of cases include:
adminstrative settlements of cost recovery actions where total
cleanup costs were less tha $200,000;
. claims in bankruptcy;
administrative settlements with de minimis contributors of
wastes.
Actions subject to this exception are administrative settlements of
cost recovery cases where all the work at the site has been completed
and all costs have been incurred. The figure of $200,000 refers to all
of the costs of cleanup. The Agency is preparing more detailed guidance
on the appropriate form of such settlement agreements, and the types of
conditions that must be included.
Negotiation of claims in bankruptcy may involve both present
owners, where the United States may have an administrative costs claim,
and other parties such as past owners or generators, where the United
States may be an unsecured potential creditor. The Regions should avoid
6 of 17 12/30/9709:42:50
-------
. Interim'CERCLA Settlement Policy http://es.epa.gov/oeca/osre/841205.html
becoming involved in bankruptcy proceedings if there is little
likelihood of recovery, and should recognize the risks involved in
negotiating without creditor status. It may be appropriate to request
DOJ filing of a proof of claim. Further guidance is provided in the
Memorandum from Courtney Price entitled "Information Regarding CERCLA
Enforcement Against Bankrupt Parties," dated May 24, 1984.
In negotiating with de minimis parties, the Regions should limit
their efforts to low volume, low toxicity disposers who would not
normally make a significant contribution to the costs of cleanup in any
case.
In considering settlement offers from de minimis contributors, the
Region should normally focus on achieving cash settlements. Regions
should generally not enter into negotiations for full administrative or
judicial settlements with releases, contribution protection, or other
protective clauses. Substantial resources should not be invested in
negotiations with de minimis contributors, in light of the limited costs
that may be recovered, the time needed to prepare the necessary legal
documents, the need for Headquarters review, potential res judicata
effects, and other effects that de minimis settlements may have on the
nature of the case remaining to the Government.
Partial settlements may also be considered in situations where the
unwillingness of a relatively small group of parties to settle prevents
the development of a proposal for a substantial portion of costs or the
remedy. Proposals for settlement in these circumstances should be
assessed under the criteria set forth in section IV.
Earlier versions of this policy included a threshold for
negotiations, which provided that negotiations should not be commenced
unless an offer was made to settle for at least 80% of the costs of
cleanup, or of the remedial action. This threshold has been eliminated
from the final version of this policy. It must be emphasized that
elimination of this threshold does not mean that the Agency is therefore
more willing to accept offers for partial settlement. The objective of
the Agency is still to obtain complete cleanup by PRPs, or 100% of the
costs of cleanup.
III. RELEASE OF INFORMATION
The Agency will release information concerning the site to PRPs to
faciltate discussions for settlement among PRPs. This information will
include:
identity of notice letter recipients;
volume and nature of wastes to the extent indentified as sent
to the site;
ranking by volume of material sent to the site, if available.
In determining the type of information to be released, the Region
should consider the possible impacts on any potential litigation. The
Regions should take steps to assure protection of confidential and
deliberative materials. The Agency will generally not release actual
evidentiary material. The Region should state on each released summary
that it is preliminary, that it was furnished in the course of
compromise negotiations (Fed. Rules of Evidence 408), and that it is not
binding on the Federal Government.
This information release should be preceded by and combined with a
vigorous program for collecting information from responsible parties. It
remains standard practice for the Agency to use the information
gathering authorities of RCRA and CERCLA with respect to all PRPs at a
site. This information release should generally be conditioned on a
reciprocal release of information by PRPs. The information request need
not be simultaneous, but EPA should receive the information within
reasonable time.
7 of 17 12/30/9709:42:51
-------
Interim CERCLA Settlement Policy http://es.epa.gov/oeca/osre/841205.html
IV. SETTLEMENT CRITERIA
The objective of negotiations is to collect 100% of cleanup costs
or complete cleanup from responsible parties. The Agency recognizes
that, in narrowly limited circumstances, exceptions to this goal may be
appropriate, and has established criteria for determining where such
exceptions are allowed. Although the Agency will consider offers of
less than 100% in accordance with this policy, it will do so in light of
the Agency's position, reinforced by recent court decisions, that PRP
liability is strict, joint and several unless it can be shown by the
PRPs that injury at a site is clearly divisible.
Based on a full evaluation of the facts and a comprehensive
analysis of all of the listed criteria, the Agency may consider
accepting offers of less than 100 percent. Rapid and effective
settlement depends on a thorough evaluation, and an aggressive
information collection program is necessary to prepare effictive
evaluations. Proposals for less than total settlement should be
assessed using the criteria identified below.
1. Volume of wastes contributed to site by each PRP
Information concerning the volume of wastes contributed to the site
by PRPs should be collected, if available, and evaluated in each case.
The volume of wastes is not the only criterion to be considered, nor may
it be the most important. A small quantity of waste may cost
proportionately more to contain or remove than a larger quantity of a
different waste. However, the volume of waste may contribute
significantly and directly to the distribution of contamination on the
surface and subsurface (including groundwater), and to the complexity of
removal of the contamination. In addition, if the properties of all
wastes at the site are relatively equal, the volume of wastes
contributed by the PRPs provides a convenient, easily applied criterion
for measuring whether a PRP's settlement offer may be reasonable.
This does not mean, however, that PRPs will be required to pay only
their proportionate share based on volume of contribution of wastes to
the site. At many sites, there will be wastes for which PRPs cannot be
identified. If identified, PRPs may be unable to provide funds for
cleanup. Private party funding for cleanup of those wastes would,
therefore, not be available if volumetric contribution were the only
criteria.
Therefore, to achieve the Agency's goal of obtaining 100 percent of
cleanup or the cost of cleanup, it will be necessary in many cases to
require a settlement contribution greater than the percentage of wastes
contributed by each PRP to the site. These costs can be obtained
through the application of the theory of joint and several liability
where the harm is indivisible, and through application of these criteria
in evaluating settlement proposals.
2. Nature of the wastes contributed
The human, animal and environmental toxicity of the hazardous
substances contributed by the PRPs, its mobility, persistence and other
properties are important factors to consider. As noted above, a small
amount of wastes, ora highly mobile waste, may cost more to clean up,
dispose, or treat than less toxic or relatively immobile wastes. In
addition, any disproportionate adverse effects on the environment by the
presence of wastes contributed by those PRPs should be considered.
If a waste contributed by one or more of the parties offering a
settlement disproportionately increases the costs of cleanup at the
site, it may be appropriate for parties contributing such waste to bear
a larger percentage of cleanup costs than would be the case by using
solely a volumetric basis.
3. Strength of evidence tracing the wastes at the site to the settling
8 of 17 12/30/9709:42:51
-------
Interirfi CERCLA Settlement Policy http://es.epa.gov/oeca/osre/841205 .html
parties
The quality and quantity of-the Government's evidence connecting
PRPs to the wastes at the site obviously affects the settlement value of
the Government's case. The Government must show, by a preponderunce of
the evidence, that the PRPs are connected with the wastes in one or more
of the ways provided in Section 107 of CERCLA. Therefore, if the
Government's evidence against a particular PRP is weak, we should weigh
that weakness in evaluating a settlement offer from that PRP.
On the other hand, where indivisible harm is shown to exist, under
the theory of joint and several liability the Government is in a
position to collect 100% of the cost of cleanup from all parties who
have contributed to a site. Therefore, where the quality and quantity
of the Government's evidence appears to be strong for establishing the
PRP's liability, the Government should rely on the strength of its
evidence and not decrease the settlement value of its case. Discharging
such PRPs from liability in a partial settlement without obtaining a
substantial contribution may leave the Government with non-settling
parties whose involvement at the site may be more tenuous.
In any evaluation of a settlement offer, the Agency should weigh
the amount of information exchange that has occurred before the
settlement offer. The more the Government knows about the evidence it
has to connect the settling parties to the site, the better this
evaluation will be. The information collection provisions of RCRA
and/or CERCLA should be used to develop evidence prior to preparation of
the evaluation.
4. Ability of the settling parties to pay
Ability to pay is not a defense to an action by the Government.
Nevertheless, the evaluation of a settlement proposal should discuss the
financial condition of that party, and the practical results of pursuing
a party for more than the Government can hope to actually recover. In
cost recovery actions it will be difficult to negotiate a settlement for
more than a party's assets. The Region should also consider allowing
the party to reimburse the Fund in reasonable installments over a period
of time, if the party is unable to pay in a lump sum, and installment
payments would benfit the government. A structured settlement providing
for payments over time should be at a payment level that takes into
account the party's cash flow. An excessive amount could force a party
into bankruptcy, which will of course make collection very difficult.
See the memorandum dated August 26, 1983, entitled "Cost Recovery
Actions under Section 107 of CERCLA" for additional guidance on this
subject.
5. Litigative risks in proceeding to trial
Litigative risks which might be encountered at trial and which
should weigh in consideration of any settlement offer include
traditional factors such as:
a. Admissibility of the Government's evidence
If necessary Government evidence is unlikely to be admitted in a
trial because of procedural or substantive problems in the acquisition
or creation of the evidence, this infirmity should be considered as
reducing the Governments's chance of success and, therefore, reducing
the amount the Government should expect to receive in a settlement.
b. Adequacy of the Government's evidence
Certain aspects of this point have already been discussed above.
However, it deserves mention again because the government's case depends
on substantial quantities of sampling, analytical and other technical
data and expert testimony. If the evidence in support of the
Government's case is incomplete or based upon controversial science, or
if the Government's evidence is otherwise unlikely to withstand the
9 of 17 12/30/9709:42:51
-------
. Interim-CERCLA Settlement Policy http://es.epa.gov/oeca/osre/841205.html
scrutiny of a trial, the amount that the Government might expect to
receive in a settlement will be reduced.
c. Availability of defenses
In the unlikely event that one or more of the settling parties
appears to have a defense to the Government's action under section
107(b) of CERCLA, the Government should expect to receive less in a
settlement from that PRP. Availability of one or more defenses to one
PRP which are not common to all PRPs in the case should not, however,
lower the expectation of what an entire offering group should pay.
6. Public interest considerations
The purpose of site cleanup is to protect public health and the
environment. Therefore, in analyzing a settlement proposal the timing
of the cleanup and the ability of the Government to clean up the site
should be considered. For example, if the State cannot fund its portion
of a Fund-financed cleanup, a private-party cleanup proposal may be
given more favorable consideration than one received in a case where the
State can fund its portion of cleanup costs, if necessary.
Public interest considerations also include the availability of
Federal funds for necessary cleanup, and whether privately financed
action can begin more quickly than Federally-financed activity. Public
interest concerns may be used to justify a settlement of less than 100%
only when there is a demonstrated need for a quick remedy to protect
public health or the environment.
7. Precedential value
In some cases, the factual situation may be conducive to
establishing a favorable precedent for future Government actions. For
example, strong case law can be developed in cases of first impression.
In addition, settlements in such cases tend to become precedents in
themselves, and are examined extensively by PRPs in other cases.
Settlement of such cases should always be on terms most favorable to the
Government. Where PRPs will not settle on such terms, arid the quality
and quantity of evidence is strong, it may be in the overall interest of
the Government to try the case.
8. Value of obtaining a present sum certain
If money can be obtained now and turned over to the Fund, where it
can earn interest until the time it is spent to clean up a site, the net
present value of obtaining the sum offered in settlement now can be
computed against the possibility of obtaining a larger sum in the
future. This calculation may show that the net present value of the sum
offered in settlement is, in reality, higher than the amount the
Government can expect to obtain at trial. EPA has developed an economic
model to assess these and other related economic factors. More
information on this model can be obtained from the Director, Office of
Waste Programs Enforcement.
9. Inequities and aggravating factors
All analyses of settlement proposals should flag for the decision
makers any apparent inequities to the settling parties inherent in the
Government's case, any apparent inequities to others if the settlement
proposal is accepted, and any aggravating factors. However, it must be
understood that the statute operates on the underlying principle of
strict liability, and that equitable matters are not defenses.
10. Nature of the case that remains after settlement
All settlement evaluations should address the nature of the case
that remains if the settlement is accepted. For example, if there are
no financially viable parties left to proceed against for the balance of
the cleanup after the settlement, the settlement offer should constitute
10 of 17 12/30/9709:42:51
-------
Interim CERCLA Settlement Policy http://es.epa.gov/oeca/osre/841205.html
everything the Government expects to obtain at that site. The questions
are: What does the Government gain by settling this portion of the
case? Does the settlement or its terms harm the remaining portion of
the case? Will the Government have to expend the same amount of
resources to try the remaining portion of the case? If so, why should
the settlement offer be accepted?
This analysis is extremely important and should come at the
conclusion of the evaluation.
V. PARTIAL CLEANUPS
On occasion, PRPs may offer to perform or pay for one phase of a
site cleanup (such as a surface removal action) but not commit to any
other phase of the cleanup (such as ground water treatment). In some
circumstances, it may be appropriate to enter into settlements for such
partial cleanups, rather than to resolve all issues in one settlement.
For example, in some cases it is necessary to conduct initial phases of
site cleanup in order to gather sufficient data to evaluate the need for
and type of work to be done on subsequent phases. In such cases, offers
from PRPs tp conduct or pay for less than all phases of site cleanup
should be evaluated in the same manner and by the same criteria as set
forth above. Settlements must be limited to the phase or phases of work
actually to be performed at the site. This provision does not cover
preparation of an RI/FS, which is covered by a separate guidance
document: Lee Thomas and Courtney Price's "Participation of Potentially
Responsible Parties in RI/FS Development" (March 20, 1984).
VI. CONTRIBUTION PROTECTION
Contribution among responsible parties is based on the principle
that a jointly and severally liable party who has paid all or a portion
of a judgment or settlement may be entitled to reimbursement from other
jointly or severally liable parties. When the Agency reaches a partial
settlement with some parties, it will frequently pursue an enforcement
action against non-settling responsible parties to recover the remaining
costs of cleanup. If such an action is undertaken, there is a
possibility that those non-settlors would in turn sue settling parties.
If this action by nonsettling parties is successful, then the settling
parties would end up paying a larger share of cleanup costs than was
determined in the Agency's settlement. This is obviously a disincentive
to settlement.
Contribution protection in a consent decree can prevent this
outcome. In a contribution protection clause, the United States would
agree to reduce its judgment against the non-settling parties, to the
extent necessary to extinguish the settling party's liability to the
nonsettling third party.
The Agency recognizes the value of contribution protection in
limited situations in order to provide some measure of finality to
settlements. Fundamentally, we believe that settling parties are
protected from contribution actions as a matter of law, based on the
Uniform Contribution Among Tortfeasors Act. That Act provides that,
where settlements are entered into in "good faith", the settlors are
discharged from "all liability for contribution to any other joint
tortfeasors." To the extent that this law is adopted as the Federal
rule of decision, there will be no need for specific clauses in consent
agreements to provide contribution protection.
There has not yet been any ruling on the issue. Thus, the Agency
may still be asked to provide contribution protection in the form of
offsets and reductions in judgment. In determining whether explicit
contribution protection clauses are appropriate, the Region should
consider the following factors:
Explicit contribution protection clauses are generally not
appropriate unless liability can be clearly allocated, so that the
risk of reapportionment by a judge in any future action would be
11 of 17 12/30/9709:42:52
-------
Interim1 CERCLA Settlement Policy http://es.epa.gov/oeca/osre/841205.html
minimal.
Inclusion should depend on case-by-case consideration of the law
which is likely to be applied.
The Agency will be more willing to consider contribution protection
in settlements that provide substantially all the costs of cleanup.
If a proposed settlement includes a contribution protection clause,
the Region should prepare a detailed justification indicating why this
clause is essential to attaining an adequate settlement. The
justification should include an assessment of the prospects of
litigation regarding the clause. Any proposed settlement that contains
a contribution protection clause with a potential ambiguity will be
returned for further negotiation.
Any subsequent claims by settling parties against non-settlor must
be subordinated to Agency claims against these non-settling parties. In
no event will the Agency agree to defend on behalf of a settlor, or to
provide direct indemnification. The Government will not enter into any
form of contribution protection agreement that could require the
Government to pay money to anyone.
If litigation is commenced by non-settlors against settlors, and
the Agency became involved in such litigation, the Government would
argue to the court that in adjusting equities among responsible parties,
positive consideration should be given to those who came forward
voluntarily and were a part of a group of settling PRPs.
VII. RELEASES FROM LIABILITY
Potentially responsible parties who offer to wholly or partially
clean up a site or pay the costs of cleanup normally wish to negotiate a
release from liability or a covenant not to sue as a part of the
consideration for that cleanup or payment. Such releases are
appropriate in some circumstances. The need for finality in settlements
must be balanced against the need to insure that PRPs remain responsible
for recurring endangerments and unknown conditions.
The Agency recognizes the current state of scientific uncertainty
concerning the impacts of hazardous substances, our ability to detect
them, and the effectiveness of remedies at hazardous waste sites. It is
possible that remedial measures will prove inadequate and lead to
imminent and substantial endangerments, because of unknown conditions or
because of failures in design, construction or effectiveness of the
remedy.
Although the Agency approves all remedial actions for sites on the
National Priorities List, releases from liability will not automatically
be granted merely because the Agency has approved the remedy. The
willingness of the Agency to give expansive releases from liability is
directly related to the confidence the Agency has that the remedy will
ultimately prove effective and reliable. In general, the Regions will
have the flexibility to negotiate releases that are relatively expansive
or relatively stringent, depending on the degree of confidence that the
Agency has in the remedy.
Releases or covenants must also include certain reopeners which
preserve the right of the Government to seek additional cleanup action
and recover additional costs from responsible parties in a number of
circumstances. They are also subject to a variety of other limitations.
These reopener clauses and limitations are described below.
In addition, the Agency can address future problems at a site by
enforcement of the decree or order, rather than by action under a
particular reopener clause. Settlements will normally specify a
particular type of remedial action to be undertaken. That remedial
action will normally be selected to achieve a certain specified level of
protection of public health and the environment. When settlements are
12 of 17 12/30/9709:42:52
-------
Interim*CERCLA Settlement Policy http://es.epa.gov/oeca/osre/841205.html
incorporated into consent decrees or orders, the decrees or orders
should wherever possible include performance standards that set out
these specified levels of protection. Thus, the Agency will retain its
ability to assure cleanup by taking action to enforce these decrees or
orders when remedies fail to meet the specified standards.
It is not possible to specify a precise hierarchy of preferred
remedies. The degree of confidence in a particular remedy must be
determined on an individual basis, taking site-specific conditions into
account. In general, however, the more effective and reliable the
remedy, the more likely it is that the Agency can negotiate a more
expansive releases. For example, if a consent decree or order commits a
private party to meeting and/or continuing to attain health based
performance standards, there can be great certainty on the part of the
Agency that an adequate level of public health protection will be met
and maintained, as long as the terms of the agreement are met. In this
type of case, it may be appropriate to negotiate a more expansive
release than, for example, cases involving remedies that are solely
technology-based.
Expansive releases may be more appropriate where the private party
remedy is a demonstrated effective alternative to land disposal, such as
incineration. Such releases are possible whether the hazardous material
is transported offsite for treatment, or the treatment takes place on
site. In either instance, the use of treatment can result in greater
certainty that future problems will not occur.
Other remedies may be less appropriate for expansive releases,
particularly if the consent order or agreement does not include
performance standards. It may be appropriate in such circumstances to
negotiate releases that become effective several years after completion
of the remedial action, so that the effectiveness and reliability of the
technology can be clearly demonstrated. The Agency anticipates that
responsible parties may be able to achieve a greater degree of certainty
in settlements when the state of scientific understanding concerning
these technical issues has advanced.
Regardless of the relative expansiveness or stringency of the •
release in other respects, at a minimum settlement documents must
include reopeners allowing the Government to modify terms and conditions
of the agreement for the following types of circumstances:
where previously unknown or undetected conditions that arise
or are discovered at the site after the time of the agreement
may present an imminent and substantial endangerment to public
health, welfare or the environment;
where the Agency receives additional information, which was
not available at the time of the agreement, concerning the
scientific determinations on which the settlement was
premised (for example, health effects associated with levels
of exposure, toxicity of hazardous substances, and the
appropriateness of the remedial technologies for conditions at
the site) and this additional information indicates that site
conditions may present an imminent and substantial
endangerment to the public health or welfare or the
environment.
In addition, release clauses must not preclude the Government from
recovering costs incurred in responding to the types of imminent and
substantial endangerments identified above.
In extraordinary circumstances, it may be clear after application
of the settlement criteria set out in section IV that it is in the
public interest to agree to a more limited or more expansive release not
subject to the conditions outlined above. Concurrence of the Assistant
Administrators for OSWER and OECM (and the Assistant Attorney General
when the release is given on behalf of the United States) must be
obtained before the Government's negotiating team is authorized to
13 of 17 12/30/9709:42:52
-------
Interim CERCLA Settlement Policy http://es.epa.gov/oeca/osre/841205 .html
negotiate regarding such a release or covenant.
The extent of releases should be the same, whether the private
parties conduct the cleanup themselves or pay for Federal Government
cleanup. When responsible parties pay for Federal Government cleanup,
the release will ordinarily not become effective until cleanup is
completed and the actual costs of the cleanup are ascertained.
Responsible parties will thereby bear the risk of uncertainties arising
during execution of the cleanup. In limited circumstances, the release
may become effective upon payment for Federal Government cleanup, if the
payment includes a carefully calculated premium or other financial
instrument that adequately insures the Federal government against these
uncertainties. Finally, the Agency may be more willing to settle for
less than the total costs of cleanup when it is not precluded by a
release clause from eventually recovering any additional costs that
might ultimately be incurred at a site.
Release clauses are also subject to the following limitations:
A release or covenant may be given only to the PRP providing the
consideration for the release.
The release or covenant must not cover any claims other than those
involved in the case.
The release must not address any criminal matter.
Releases for partial cleanups that do not extend to the entire site
must be limited to the work actually completed.
Federal claims for natural resource damages should not be released
without the approval of Federal trustees.
Responsible parties must release any related claims against the
United States, including the Hazardous Substances Response Fund.
Where the cleanup is t'o be performed by the PRPs, the release or
covenant should normally become effective only upon the completion
of the cleanup (or phase of cleanup) in a manner satisfactory to
EPA.
Release clauses should be drafted as covenants not to sue, rather
than releases from liability, where this form may be necessary to
protect the legal rights of the Federal Government.
A release or covenant not to sue terminates or seriously impairs
the Government's rights of action against PRPs. Therefore, the document
should be carefully worded so that the intent of the parties and extent
of the matters covered by the release or covenant are clearly stated.
Any proposed settlement containing a release with a possible ambiguity
will be returned for further negotiation.
VIII. TARGETS FOR LITIGATION
The Regions should identify particular cases for referral in light
of the following factors:
substantial environmental problems exist;
the Agency's case has legal merit;
the amount of money or cleanup involved is significant;
good legal precedent is possible (cases should be rejected
where the potential for adverse precedent is substantial);
the evidence is strong, well developed, or capable of
development;
14 of 17 12/30/9709:42:52
-------
Interim CERCLA Settlement Policy http://es.epa.gov/oeca/osre/841205 .html
statute of limitations problems exist;
responsible parties are financially viable.
The goal of the Agency is to bring enforcement action wherever
needed to assure private party cleanup or to recover costs. The
following types of cases are the highest priorities for referrals:
107 actions in which all costs have been incurred;
combined 106/107 actions in which a significant phase has been
completed, additional injunctive relief is needed and
identified, and Fund will not be used,-
106 actions which will not be the subject of Fund-financed
cleanup.
Referrals for injunctive relief may also be appropriate in cases
when it is possible that Fund-financed cleanup will be undertaken. Such
referrals may be needed where there are potential statute of limitation
concerns, or where the site has been identified as enforcement-lead, and
prospects for successful litigation are good.
Regional offices should periodically reevaluate current targets for
referral to determine if they meet the guidelines identified above.
As indicated before, under the theory of joint and several
liability the Government is not required to bring enforcement action
against all of the potentially responsible parties involved at a site.
The primary concern of the Government in identifying targets for
litigation is to bring a meritorious case against responsible parties
who have the ability to undertake or pay for response action. The
Government will determine the targets of litigation in order to reach
the largest manageable number of parties, based on toxicity and volume,
and financial viability. Owners and operators will generally be the
target of litigation, unless bankrupt or otherwise judgment proof. In
appropriate cases, the Government will consider prosecuting claims in
bankruptcy. The Government may also select targets for litigation for
limited purposes, such as site access.
Parties who are targeted for litigation are of course not precluded
from involving parties who have not been targeted in developing
settlement offers for consideration by the Government.
In determining the appropriate targets for litigation, the
Government will consider the willingness of parties to settle, as
demonstrated in the negotiation stage. In identifying a manageable
number of parties for litigation, the Agency will consider the
recalcitrance or willingness to settle of the parties who were involved
in the negotiations. The Agency will also consider other aggravating
and mitigating factors concerning responsible party actions in
identifying targets for litigation.
In addition, it may be appropriate, when the Agency is conducting
phased cleanup and has reached a settlement for one phase, to first sue
only non-settling companies for the next phase, assuming that such
financially viable parties are available. This approach would not
preclude suit against settling parties, but non-settlors would be sued
initially.
The Agency recognizes that Federal agencies may be responsible for
cleanup costs at hazardous waste sites. Accordingly, Federal facilities
will be issued notice letters and administrative orders where
appropriate. Instead of litigation, the Agency will use the procedures
established by Executive Orders 12088 and 12146 and all applicable
Memoranda of Understanding to resolve issues concerning such agency's
liability. The Agency will take all steps necessary to encourage
successful negotiations.
15 of 17 12/30/9709:42:53
-------
Interim CERCLA Settlement Policy http://es.epa.gov/oeca/osre/841205 .html
IX. TIMING OF NEGOTIATIONS
Under our revised policy on responsible party participation in
RI/FS, PRPs have increased opportunities for involvement in the
development of the remedial investigations and feasibility studies which
the Agency uses to identify the appropriate remedy. In light of the
fact that PRPs will have received notice letters and the information
identified in section III of this policy, prelitigation negotiations can
be conducted in an expeditious fashion.
The Negotiations Decision Document (NDD), which follows completion
of the RI/FS, makes the preliminary identification of the appropriate
remedy for the site. Prelitigation negotiations between the Government
and the PRPs should normally not extend for more than 60 days after
approval of the NDD. If significant progress is not made within a
reasonable amount of time, the Agency will not hesitate to abandon
negotiations and proceed immediately with administrative action or
litigation. It should be noted that these steps do not preclude further
negotiations.
Extensions can be considered in complex cases where there is no
threat of seriously delaying cleanup action. Any extension of this
period must be predicated on having a good faith offer from the PRPs
which, if successfully negotiated, will save the Government substantial
time and resources in attaining the cleanup objectives.
X. MANAGEMENT AND REVIEW OF SETTLEMENT NEGOTIATIONS
All settlement documents must receive concurrence from OWPE and
OECM-Waste, and be approved by the Assistant Administrator of OECM in
accordance with delegations. The management guideline discussed in
Section II allows the Regions to commence negotiations if responsible
parties make an initial offer for a substantial proportion of the
cleanup costs. Before commencing negotiations for partial settlements,
the Regions should prepare a preliminary draft evaluation of the case
using the settlement criteria in section IV of this policy. A copy of
this evaluation should be forwarded to Headquarters.
A final detailed evaluation of settlements is required when the
Regions request Headquarters approval of these settlements. This
written evaluation should be submitted to OECM-Waste and OWPE by the
legal and technical personnel on the case. These will normally be the
Regional attorney and technical representative.
The evaluation memorandum should indicate whether the settlement is
for 100% of the work or cleanup costs. If this figure is less than
100%, the memorandum should include a discussion of the advantages and
disadvantages of the proposed settlement as measured by the criteria in
section IV. The Agency expects full evaluations of each of the criteria
specified in the policy and will return inadequate evaluations.
The Regions are authorized to conclude settlements in certain types
of hazardous waste cases on their own, without prior review by
Headquarters or DOJ. Cases selected for this treatment would normally
have lower priority for litigation. Categories of cases not subject to
Headquarters review include negotiation for cost recovery cases under
$200,000, and negotiation of claims filed in bankruptcy. In cost
recovery cases, the Regions should pay particular attention to weighing
the resources necessary to conduct negotiations and litigation against
the amounts that may be recovered, and prospects for recovery.
Authority to appear and try cases before the Bankruptcy Court would
not be delegated to the Regions, but would be retained by the Department
of Justice. The Department will file cases where an acceptable
negotiated settlement cannot be reached. Copies of settlement documents
for such agreements should be provided to OWPE and OECM.
Specific details concerning these authorizations will be addressed
in delegations that will be forwarded to the Regions under separate
16 of 17 12/30/9709:42:53
-------
Irtterim CERCLA Settlement Policy http://es.epa.gov/oeca/osre/841205.html
cover. Headquarters is conducting an evaluation of the effectiveness of
existing delegations, and is assessing the possibility of additional
delegations.
NOTE ON PURPOSE AND USES OF THIS MEMORANDUM
The policies and procedures set forth here, and internal Government
procedures adopted to implement these policies, are intended as guidance
to Agency and other Government employees. They do not constitute
rulemaking by the Agency, and may not be relied on to create a
substantive or procedural right or benefit enforceable by any other
person. The Government may take action that is at variance with the
policies and procedures in this memorandum.
If you have any questions or comments on this policy, or problems
that need to be addressed in further guidance to implement this policy,
please contact Gene A. Lucero, Director of the Office of Waste Programs
Enforcement, (FTS 382-4814), or Richard Mays, Senior Enforcement
Counsel, (FTS 382-4137).
Return to the top of this document.
Return to OSRE Home Page
i
Return to Envirosense Home Page Home Page
Last Updated: June 26, 1996
17 of 17 12/30/9709:42:53
-------
MEMORANDUM
SUBJECT:
FROM:
Transmittal of Addendum to the "Interim CERCLA Settlement Policy" Issued o
December 5, 1984
Steven A. Herman, Assistant Administrator
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
TO:
Lois J. Schiffer, Assistant
Attorney General
Environment and Natural
Resources Division
U.S. Department of Justice
Regional Administrators,
Regions I - X
Regional Counsels, Regions I - X
u
-------
cc: Timothy Fields, Acting Assistant Administrator for Solid Waste and Emergency
Response, EPA
Barry Breen, Director, Office of Site Remediation Enforcement, EPA
Steve Luftig, Director, Office of Emergency and Remedial Response, EPA
Director, Office of Site Remediation and Restoration, Region I, EPA
Director, Emergency and Remedial Response Division, Region n, EPA
Director, Hazardous Waste Management Division, Regions in and DC, EPA
Director, Waste Management Division, Region IV, EPA
Director, Superfund Division, Regions V, VI, and VII, EPA
Assistant Regional Administrator, Office of Ecosystems Protection and
Remediation, Region VIE, EPA
Director, Environmental Cleanup Office, Region X, EPA
Superfund Branch Chiefs, Office of Regional Counsel, Regions I - X, EPA
Regional Enforcement Coordinators, Regions I - X, EPA
Lisa Friedman, Associate General Counsel, Office of General Counsel, EPA
John Cruden, Deputy Assistant Attorney General, DOJ
Joel Gross, Chief, Environmental Enforcement Section, DOJ
Bruce Gelber, Principal Deputy Chief, Environmental Enforcement Section, DOJ
-------
Addendum to the 'Interim CERCLA Settlement Policy" Issued on December 5.1984
Background
Under the Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), liability is strict, joint and several unless the harm is shown to be divisible.
Accordingly, viable potentially responsible parties (PRPs) sometimes have to absorb shares of
responsibility that might otherwise be equitably attributed to PRPs who are insolvent or defunct
and thus unable to contribute to the costs of cleanup. In order to reduce litigation, encourage
PRPs to perform cleanup, and enhance the overall fairness of the Superfund program, the U.S.
Environmental Protection Agency (EPA) announced in October 1995 its intention to compensate
for a portion of this "orphan share" at sites where PRPs enter into settlements to perform
cleanup.
To implement this reform, on June 3, 1996, EPA issued an "Interim Guidance on Orphan
Share Compensation for Settlors of Remedial Design/Remedial Action and Non-Time-Critical
Removals." Under that policy, EPA will "compensate" parties that agree to perform a remedial
action or non-time-critical removal for a portion of the share specifically attributable to insolvent
or defunct PRPs, up to 25% of the projected remedy or non-time-critical removal costs, or the
total past and future oversight costs, whichever is less. These limitations were included because
they moderate the impact on the Trust Fund and minimize the incurrence of additional
transaction costs, particularly with respect to calculation of the orphan share.
Policy Statement
When assessing a proposed cost recovery settlement for less than 100% of response
costs, the Regions should continue to consider inequities and aggravating factors, litigative risks
in proceeding to trial, and the rest of the ten settlement criteria set forth in the "Interim CERCLA
Settlement Policy." At sites involving potentially liable insolvent or defunct parties, the Regions
may consider the existence of a significant orphan share as an "inequity" or "aggravating factor"
within the meaning of the 1984 policy. Any exercise of the Government's discretion to accept a
cost recovery settlement offer containing a compromise on this basis will necessarily be a case-
by-case decision, to be made after examination of a variety of factors. Among the factors to be
considered in determining whether and to what extent to compromise a claim based on the
existence of insolvent or defunct parties are the following: (1) the size of the orphan share;
(2) the settling PRP's cooperation with the government and other PRPs; and (3) fairness to other
parties.
It is the intent of EPA and the Department of Justice that the United States should not
enter into settlements that provide incentives or precedents for parties to refuse to enter into
agreements for performance of work, believing they may get a better settlement at the time EPA
pursues a cost recovery claim. EPA should provide strong incentive for parties to conduct
cleanups rather than wait until EPA pursues cost recovery claims. Therefore, except in
-------
extraordinary cases, EPA should not offer an orphan share compromise in a cost recovery
settlement to a party that refused a previous settlement offer that included a compromise based
on orphan share considerations.1 Moreover, except in extraordinary cases, a party that does not
perform work under a consent agreement should not receive a greater compromise of response
costs in a cost recovery settlement based on the existence of an orphan share than it would have
received if (1) the party had signed a consent agreement to perform the work, and (2) the orphan
share policy had been applied.2
In resolving cost recovery claims, recognition of equitable considerations, including the
existence of a significant orphan share, is for settlement purposes only. Where there is
indivisible harm, EPA will continue to pursue non-settling parties jointly and severally for all
response costs.
Use and Purpose of this Addendum
This policy addendum and any internal procedures adopted for its implementation are
intended exclusively as guidance for employees of the U.S. Environmental Protection Agency
and the U.S. Department of Justice. This addendum is not a rule and does not create any legal
obligations. Whether and how EPA and the Department of Justice apply the guidance set forth in
this addendum in any particular case will depend on the facts of the case.
For further information about this addendum, please contact Laura Bulatao (202-564-
6028) or Deniz Ergener (202-564-4233) in EPA's Office of Site Remediation Enforcement, or
Bob Brook in the Environmental Enforcement Section of the Department of Justice at (202) 514-
2738.
1 For purposes of this addendum and effective upon its issuance, the determination that a case is
extraordinary requires the prior written approval of OECA. EPA intends that this requirement will be
incorporated into the next set of revisions to the May 19, 1995 memorandum entitled "Office of
Enforcement and Compliance Assurance and Regional Roles in Civil Judicial and Administrative Site
Remediation Enforcement Cases" (commonly known as the "Roles Memo").
2 See footnote 1.
------- |