De Mimmis
De Mimmis
The First 125 De Minim is
Settlements
Statistics From EPA's De Minim is Database
Office of So I id Waste a nd Emergency Res p o n se
Office of Waste Programs Enforcement
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I October 1993
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Table of Contents
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Page
Title
1 Introduction
2 Settlements by Region
3 Settlements and Settlors by Fiscal Year
4 Sites With De Minimis Settlements
5 Settlement Types
7 Profile of De Minimis Settlors
8 Volumetric Cut-offs for Eligibility c
9 Individual Volumetric Contribution by Gallon
10 Individual Volumetric Contributions by Percent
11 Individual Settlor Payments
12 Where Do the Settlement Dollars Go?
13 Settlement Values
14 Percent of Overall Site Costs Addressed
15 Settlements and Their Value
16 When in the Process was Waste-In Data Released?
17 Sources Used to Develop Waste Allocations
18 Who Performed the Waste Allocation?
19 How Many PRPs were Offered Settlement? How Many Accepted?
20 When in the Process were De Minimis Settlements Reached?
21 Reaction of Non-De Minimis Parties
22 What do Covenants Not to Sue Cover?
23 Reservation of Rights
24 Settlement Options
ijfjp EPA Office of Waste Programs Enforcement
EPA Headquarters Library
The First 125 De Minimis Settlements
October 1993
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Introduction
Under §122(g) of the Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA), EPA is encouraged to reach settlements with two types of parties: de minimis waste
contributors and de minimis landowners. EPA may enter into de minimis settlements with persons
whose waste contribution is, with respect to both volume and toxicity, "minimal in comparison to the
other hazardous substances at the site." Secondly, this provision encourages EPA to reach settle-
ment with landowners who did not "conduct or permit the generation, transportation, storage,
treatment, or disposal of any hazardous substance at the facility" and "did not contribute to the
release or threat of release . . . through any act or omission."
Since 1986, when §122(g) was passed as part of the Superfund Amendments and
Reauthorization Act, EPA has entered into about 125 de minimis settlements, thereby resolving the
liability of more than 6,000 parties. In an effort to facilitate the greater use of de minimis settlements,
EPA has developed the De Minimis Database, a comprehensive system designed to track over 100
data elements for each settlement. EPA is using this system to track and analyze all finalized de
minimis settlements. This report. The First 125 De Minimis Settlements, summarizes data maintained
in the De Minimis Database.
The information contained in the database is drawn from several sources: final de minimis
settlement documents (including attachments such as settlor lists and signature pages); a survey
questionnaire completed by EPA Regional personnel for each settlement; CERCLIS (the Comprehen-
sive Environmental Response, Compensation, and Liability Information System); and the ROD Annual
Reports.
For more information on the De Minimis Database, contact Nicole Veilleux in EPA's Office of
Waste Programs Enforcement at (703) 603-8939.
A r-rtA The First 125 De/W/n/m/'s Settlements
JJJjf Q r/\ Office of Waste Programs Enforcement 1 October 1993
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Settlements by Region
Total Number of De Minimis Settlements to Date = 125
25 settlements
9 settlements [
These numbers include 5 settlements that have been signed by EPA and the PRPs, but not yet finalized by the court.
Office of Waste Programs Enforcement
The First 125 De Minimis Settlements
October 1993
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Settlements and Settlors by Fiscal Year
40
35
30
25
E
_0>
03 20
CO
E
13
15
10
D Settlements
• Settlors
Total to Date
Settlements: 125
Settlors: 6,144
38
-, 2,000
FY88
FY89
FY90
FY91
FY92
FY93
These final settlement numbers may not accurately reflect EPA's de minimis enforcement activity in a given fiscal year, as
the settlements are counted in this graph as final when an Administrative Order on Consent was signed by the Regional
Administrator or a Consent Decree was entered by the Court. For example, although there were only 9 final de minimis
settlements in FY91, many of the 35 settlements finalized in FY92 were actually developed in FY91.
A EPA
Office of Waste Programs Enforcement
The First 125 De Minimis Settlements
October 1993
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Sites with De Minimis Settlements
With the passage of the Superfund Amendments Reauthorization Act of 1986 (SARA), EPA was given the
authority to enter into "de minimis" settlements with two type of parties: de minimis contributors of
hazardous substances, and de minimis landowners. Since that time, EPA has entered into 125 de minimis
settlements at 78 sites. Of these 112 are with waste contributors and 13 are with de minimis landowners.
REGION I CANNONS (11), IRON HORSE PARK, KEEFE, LANDFILL-AND RESOURCE RECOVERY, MCKIN (3), OLD SPRINGFIELD LANDFILL,
OTTATI & GOSS, PICILLO FARM, RE-SOLVE (2), SILRESIM, UNION CHEMICAL, WESTERN SAND & GRAVEL
REGION II GOOSE FARM (2), LIPARI LANDFILL, POLLUTION ABATEMENT SERVICES, REICH FARM, SARNEY FARM, SHORE REALTY (2),
WIDE BEACH DEVELOPMENT SITE
REGION III KEYSTONE, LACKAWANNA REFUSE, TONOLLI CORP SITE (2), TYBOUTS (5)
REGION IV CITY INDUSTRIES (3), CUSTOM INDUSTRIAL SERVICE, DUBOSE OIL PRODUCTS, KASSOUF-KIMERLING, MOWBRAY, POWERSVILLE
LANDFILL (2), ROCK HILL, SAPP BATTERY (17)
REGION V BURROWS, COMMERCIAL OIL SERVICES, ENVIROCHEM (2), FISHER-CALO CHEMICAL, GREAT LAKES ASPHALT SITE, H. BROWN
SUPERFUND SITE, I JONES RECYCLING (3), JANESVILLE, LASKIN/POPLAR OIL SITE, LIQUID DISPOSAL (3),
M.T. RICHARDS, INC., MIAMI COUNTY INCINERATOR, MIDCO (2), NINTH AVENUE DUMP, NORTHSIDE SANITARY LANDFILL (2),
ORGANIC CHEMICALS, PAGEL'S PIT, PRISTINE (2), SUMMIT NATIONAL (3), UNION SCRAP, VERONA WELLFIELD, WAYNE WASTE
OIL
REGION VI BAYOU SORREL, BRIO REFINING, FRENCH LIMITED, INDUSTRIAL WASTE CONTROL, ROYAL HARDAGE, SHERIDAN DISPOSAL
REGION VII HASTINGS GROUNDWATER/COLORADO AVE., MISSOURI ELECTRIC, WHEELING DISPOSAL
REGION VIII CALIFORNIA GULCH, LOWRY LANDFILL (2), SHARON STEEL
REGION IX OPERATING INDUSTRIES, SOUTH BAY ASBESTOS AREA
REGION X ALASKAN BATTERY, COAL CREEK/ROSS ELECTRIC, COLBERT LANDFILL, GOULD, NORTHWEST TRANSFORMER,
TACOMA TAR PITS (3)
I) indicates multiple settlements at a site.
jjfif EPA Off'ce of Waste Programs Enforcement
The First 125 De Minimis Settlements
October 1993
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Settlement Types
Landowner—12
(11%)
Landowners—22
Generators—5,342
Settlements
Settlors
• Most of EPA's efforts to reach de minimi's settlements have been with generators: 99% of all settlors and 89% of all settlements to
date.
• Under Section 122(g)(1 )(B), EPA may offer de minimis settlements to a landowner who
(i) is the owner of the real property on or in which the facility is located, and at the time of purchase did not know (or had no reason
to know) that the property was used for the generation, transportation, storage, treatment, or disposal of a hazardous substance;
(ii) did not conduct or permit the generation, transportation, storage, treatment, or disposal of any hazardous substance at
the facility; and
(iii) did not contribute to the release or threat of release of a hazardous substance at the facility through any action or omission.
• To date, EPA has settled with 22 landowners in 12 settlements. Nearly all of the landowner settlements to date have been with
one or two parties; there are no settlements with more than three de minimis landowners at the same site.
The information on this page and the pages to follow is based on the 110 de minimis settlements finalized as of September 15, 1993. A settlement
is considered final if it has been signed by the Regional Administrator (if embodied in an Administrative Order on Consent) or entered by the court
(if embodied in a Consent Decree).
Office of Waste Programs Enforcement
The First 125 De Minimis Settlements
October 1993
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Settlement Types
Was the settlement document an Administrative
Order on Consent (AOC) or a Consent Decree (CD)?
Was the settlement with de minimis parties only or
was it a component of a larger global settlement?
CDs have been used for 62 percent of all de minimis settlements, 100 percent of global de minimis settlements,
and about 73 percent of settlements valued at greater than $500,000.
Although AOCs have been used for just over one-third of all de minimis settlements, they make up a majority of
the de m/n/m/'s-only settlements, and approximately 65 percent of settlements valued at less than $500,000.
Jflf EPA OHii-c of Waste Programs Enforcement
The First 125 De Minimis Settlements
October 1993
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Profile of De Minimis Settlors
Fortune 500 Companies - 345
(6.4%)
Municipalities - 126
(2.4%)
PRPs were counted as Fortune 500 companies if they appeared in Fortune Magazine's annual list of top 500 companies in
the year that the settlement was finalized.
• Seventy-three Fortune 500 companies were de minimis settlors in more than one settlement. Eleven Fortune 500
companies settled as a de minimis party 5 or more times.
Municipalities are defined as any political subdivision of a state, including cities, townships, utility districts, school
districts, water districts, and road commissions.
^ EPA Off":i' "' Wasto Proclaims Enfon
The First 125 De Minimis Settlements
Octohor 1993
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Volumetric Cut-offs for Eligibility
Cut-off equal to
one percent -
IlilMI
Cut-off
greater than
one percent -
(13.5%)
Slightly more than one-third of the settlements sampled had designated cut-offs for de minimis eligibility
below 1 percent of the overall waste at the site.
Most de minimis parties contribute well under 1 percent of the waste at a site (see page 10).
Twelve settlements expressed the volumetric cut-off for eligibility in number of gallons contributed. These
cut-offs ranged from 5,200 gallons to 690,000 gallons.
Based on data from 59 settlements
yfjf EPA Offi|:(J °f Waste Programs Enforcement
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The First 125 De Minimis Settlements
October 1993
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Individual Volumetric Contribution by Gallon
CD
00
CD
.0
5
1,200
1,000
800
600
400
200
1,206
1,067
Individual Contributions
Mean: 9,817 gallons
Median: 1,815 gallons
Range: 1 gallon to
517,066 gallons
1-1,000
1,001 -
10,000
10,001 -
20,000
20,000+
Gallons
62 percent of the de minimis parties contributed more than 1,000 gallons of waste.
The majority of de minimis parties who individually contributed more than 20,000 gallons are associated with
three sites - Liquid Disposal, Ninth Avenue Dump, and Northside Sanitary Landfill - all in Region V.
Based on 27 settlements involving 2,790 settlors
Office of Waste Programs Enforcement
The First 125 De Minimis Settlements
October 1993
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Individual Volumetric Contributions by Percent
0.
cc
a.
03
-Q
£
1,000 r
800 -
200 —
Individual Contributions
Mean: .11%
Median: .04%
Range: .0001% to 1.47%
12
>.01% - .1% >.
Percent Contribution
- 1.0%
Although the volumetric cut-off for de minimis eligibility has frequently been set at 1 percent, most of the de minimis
settlors contributed an amount significantly less than 1 percent.
Seventy-three percent of the de minimis parties individually contributed .1 percent of the waste or less.
Less than 1 percent of the settlors individually contributed more than 1 percent of the waste to a given site.
Waste contributions are not always expressed as a percentage share of total waste at the site; individual contributions
are occasionally recorded only in gallons, pounds, number of batteries, etc.
Based on 32 of settlements involving 1,674 settlors
A EPA
Office of Waste Programs Enforcement
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The First 125 De Minimis Settlements
October 1993
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Individual Settlor Payments
861 SETTLORS
SETTLORS
2,137 SETTLORS
Greater than $100,000
Between $25,000 and
$100,000
Between $5,000 and
$25,000
Individual Payment Amounts
Mean: $27,419
Median: $ 6,750
Range: $6 to $1,450,000
Less than $5,000
Premiums
• Individual payments usually include a premium, which is an additional percentage of each settlor's allocated share of
the cleanup costs. Premiums frequently address potential cost overruns or orphan shares.
• Premiums for de minimis settlors have ranged from 10 percent to 327 percent of individual payments. On average,
settlors have paid a premium of 108 percent. The premium most frequently assessed in de minimis settlements to
date is 100 percent.
• In addition to paying an allocated share and a premium, some settlors have also paid additional amounts if they
were previously offered a de minimis settlement, but declined to participate. There are 12 settlements in which this
occurred, and the amounts assessed averaged 23 percent of a settlor's individual payment.
Based on 4,799 settlors
jpv E P/\ Office of Waste Programs Enforcement
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The First 125 De Minimis Settlements
October 1993
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Where Do the Settlement Dollars Go?
How often have settlement dollars
been designated to the Trust Fund or
to other PRP Settlement Accounts?
How many dollars, in total, have been
designated to the Trust Fund or to PRP
Settlement Accounts?
State — $3.6 million or 2.74%
Department of Interior —$52,700 or .04%
Settlements with
payments made to both
the Trust Fund and PRP
Settlement Accounts
10%
Settlements paid to the
Trust Fund
63%
PRP Settlement Accounts
S64.95 million or 49.37%
Total value of de minimis settlements to date:
$131,721,000
On average, those settlements with payments to both PRP
Settlement Accounts and the Trust Fund designated 73% of the
settlement to PRP Settlement Accounts and 27% to the Trust
Fund.
Over the past 6 years, an increasing number of settlements have
designated payments to PRP Settlement Accounts.
A small portion of some of the settlements was paid to the
Department of Interior or to the State.
Based on 60 settlements.
The largest share of de minimis settlement payments has
been made directly to PRP Settlement Accounts, established
by the non-de minimis PRPs at the site. The second largest
share has gone to the Trust Fund.
Money paid directly to the Department of Interior is usually
for Natural Resource Damage claims.
"Other" includes dollars that are being paid directly to other
PRP groups, and settlements where payments are made to
more than one type of account in unspecified amounts.
Based on 82 settlements.
Office of Waste Programs Enforcement
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The First 125 De Minimis Settlements
October 1993
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Settlement Values
14 SETTLEMENTS
21 SETTLEMENTS
46 SETTLEMENTS
Greater than $5,000,000
Between $2,000,000 and
$5,000,000
Between $500,000 and
$2,000,000
Less than $500,000
Settlement Values
Total: $ 131,721,000
Mean: $ 1,500,000
Median: $ 414,000
Range: $250 to $12,596,000
The value of de minimis settlements (the sum of all the settlors' payments) has ranged from a $250 settlement at
the City Industries Site in Region V, to a $12,596,000 settlement at the Cannons Site in Region I. Overall, most of the
110 settlements to date have been valued at less than $500,000, and only a few have exceeded $10 million.
Not surprisingly, each of the five largest settlements had more that 150 de minimis settlors; the five smallest settle-
ments had either one or two settlors.
The mean settlement value (S1.5M) is substantially increased by the largest settlements; therefore, the median
value ($414,000) more accurately characterizes the dollar amount of most de minimis settlements.
About half of the landowner settlements are for access only, and do not require a payment from the settling party.
These settlements provide EPA with access to the site property, and resolve the landowner's liability. Six settle-
ments, however, have required landowners to pay for a portion of the cleanup costs. In total, these settlements
with de minimis landowners have amounted to $1,856,000.
Based on 87 settlements
Kjf E i /\ Office of Waste Programs Enforceme
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The First 125 De Minimis Settlements
October 1993
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Percent of Overall Site Costs Addressed
Greater than 10 percent
30 SETTLEMENTS
24 SETTLEMENTS
Between 1 and 10 percent
Less than 1 percent
On average, de minimi's settlements have addressed 8 percent of the total cleanup costs at the site.
Overall, this portion of total site costs addressed by de minimi's settlements has ranged from .003
percent to 45 percent.
Based on 75 settlements
j*jJ7 E P/V Office of Waste Programs Enforcement
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The First 125 De Minimi's Settlements
October 1993
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Settlements and Their Value
-Q
E
35 i—
S59.8M
15 —
10 —
5 —
$57.0M
Number of Settlements
Value of the Settlements
$250,000 - $1M >S1M - S5M
Individual Settlement Amount
>S5M
$60M
$50M
$40 M
Q __
$30M = =
$20M
$10M
The 34 settlements that each accounted for no more than $250,000 involved a total of 488 parties, and collected
only about 3 percent of the total de minimis settlement dollars to date.
The six settlements that each accounted for more than $5 million resolved the liability of more than 1,300 de
minimis parties, and accounted for 43 percent of the dollars paid by de minimis settlors to date.
Based on 87 of settlements involving 4,799 settlors
Office cif Waste Programs Enforcement
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The First 125 De Minimis Settlements
October 1993
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When in the Process was Waste-In Data Released?
0%
With
Information
Request Letter
With or prior to
General Notice Letter
With
Special
Notice Letter
for RI/FS
51%
With or
Subsequent to
Special Notice
for RD/RA
Other
Section 122 (e) (1) of CERCLA provides that when EPA issues special notice, EPA is required to release waste-in
data to the extent that it is available.
The release of PRP waste contribution information prior to special notice for RD/RA issuance is commonly
referred to as "early information release". In approximately 15 de minimis settlements, waste-in data was
released prior to special notice letter issuance. EPA and PRPs agree that early information release facilitates
PRP organization, thereby resulting in expedited settlements.
"Other" includes: between GNL and SNL issuance, during cost recovery negotiations, and just prior to the
development of a CD
Based on data from 57 settlements
A EPA
Office of Waste Programs Enforcement
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The First 125 De Minimis Settlements
October 1993
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Sources Used to Develop Waste Allocations
C"
0)
E
CO
tj
E
20 —
10 -
Invoices
Manifests
Logs
Interviews 104(e) Transporter Depositions Other
Responses Reports Documents
A single waste allocation frequently utilized multiple sources. The top three sources used to develop waste
allocations were invoices, manifests and logs. Manifests are a RCRA statutory requirement; invoices and logs
are commonly used in standard business practices.
Other documents have included health department studies, state agency reports, cancelled checks, and
affidavits.
Based on 63 settlements.
1f]f EPA Office <>f Waste Programs Enforcement
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The First 125 De Minimis Settlements
October 1993
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Who Performed the Waste Allocation?
I
Both PRPs and EPA
8%
Waste allocations have generally been performed by EPA. However, the number of PRPs conducting waste
allocations has gradually increased. PRPs prepared waste allocations for 11 % of the de minimis settlements
finalized in FY89, 14% in FY92, and 35% in FY93.
Other entities that have performed waste allocations include Clean Sites and state environmental agencies.
Based on 63 settlements.
S0f EPA Office of Waste Programs Enforcement
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The First 125 De Minimis Settlements
October 1993
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How Many PRPs were Offered Settlement? How Many Accepted?
fflfflfflfflfflfflff)
4444444
At sites with de minimis
settlements, 70 percent of the
PRPs qualified for, and were
offered, a de minimis
settlement.
H mmm
63% of parties offered a
de minimis settlement
accepted
44 percent of the parties who received a general or special notice letter overall (at srtes with de minimis
settlements) settled as de minimis.
If a PRP was offered a de minimis settlement on more than one occasion at a single site, the party was counted
only once.
Based on 67 settlements
Office of Waste Programs Enforcement
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The First 125 De Minimis Settlements
October 1993
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When in the Process were De Minimis Settlements Reached?
60%
50%
2 40%
CD
E
CD
CD
C/3
CD
CTi
CD
30%
20%
10%
0%
Pre-RI/FS
50.7%
Pre-ROD
Prior to
Start of
Negotiations
for RD/RA
After RD/RA
Negotiations
After UAO
for RD/RA
Post RD/RA
Entry
During/After
Cost Recovery
Litigation
Other
Approximately 10 settlements were "early de minimis" settlements, reached prior to the signature of a
decision document (e.g. ROD) or prior to the start of RD/RA negotiations.
Based on data from 71 settlements
Office of Waste Programs Enforcement
20
The First 125 De Minimis Settlements
October 1993
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Reaction of Non-De Minimis Parties
S-SSxSSSft^^^
In some cases, the non-de minimis PRPs have opposed the de minimis agreement.
The involvement of the non-de minimis parties therefore can be an important factor
in reaching a final de minimis agreement.
In 23 percent of the de minimis settlements, the non-de minimis
parties submitted comments opposing the settlement during the
public comment period.
In 13 percent of the de minimis settlements, the non-de minimis
parties sought to intervene or set aside the settlement through
judicial action.
In 16 percent of the de minimis settlements, the non-de minimis
parties sued the de minimis parties either before or after the de
minimis settlement.
In some cases the non-de minimis party who submitted comments may also have
sought to intervene in the judicial action or sued the de minimis parties.
Based on 72 settlements
~«- riA, r, r- , 71 The First 125 De/Mm/mis Settlements
Office of Waste Programs Enforcement *•' October 1993
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What do Covenants Not to Sue Cover?
100%
72%
33%
100 percent of de minimis settlements provide a covenant to
resolve the settlors' liability under CERCLA §§106 & 107
72 percent of de minimis settlements have included
covenants for the settlors' liability under §7003 of RCRA
33 percent of de minimis settlements have included
covenants for the settlors' liability for Natural Resource
Damages
In most cases, settlements include a Covenant Not to Sue for Natural Resource Damages if it
has already been determined through an endangerment assessment that no damage has oc-
curred or if settlors have agreed to take actions to protect or restore natural resources.
Covenants Not to Sue have also occasionally included protection regarding the Clean Water Act
and state laws of public nuisance.
Based on 101 settlements
Office of Waste Programs Enforcement
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The First 125 De Minimis Settlements
October 1993
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Reservation of Rights
Through a reservation of rights provision, many de minimis settlements include "reopeners" which permit
a settlement to be revisited if certain conditions occur. Some reopeners are generic and broad in scope;
other reopeners are specific and focus on unique conditions of a given site. Reopener provisions vary
according to each settlement and specify the level of finality the settlement provides to the parties. The
infrequent use of Failed Remedy and Remedy Cost reopeners, for example, indicates the high level of
finality often provided to de minimis settlors.
Remedy Cost (4%)
This reopener permits the settlement to be reconsidered if the cleanup costs at the site exceed a specified
amount.
Failed Remedy (6%)
This reopener permits the settlement to be reopened if the selected remedy is no longer protective of the
environment or human health, and it is determined that additional work is required at the site.
False Information (37%)
This reopener allows EPA to reopen the settlement if it is discovered that false, inaccurate, or incomplete
information was knowingly provided to EPA.
Criminal Liability (45%)
This provision permits EPA to reevaluate the settlement if the settlor is found guilty on specified criminal
charges, such as failure to report a release (under Section 103 of CERCLA) or illegal dumping (under Section
7003 of RCRA).
Natural Resource Damages (53%)
This provision permits EPA to hold settling parties liable for additional costs in the event that there are unfore-
seen natural resource damages resulting from the contamination at the site.
Non-payment of Monies (64%)
This reopener protects EPA in the event that the settlors fail to make the payments set forth in the agreement.
New Information (90%)
The most prevalent reopener provision included in de minimis settlements provides for the discovery of new
information that precludes the party's eligibility for the de minimis settlement.
Based on 102 settlements
Q i-riA r, -,*, The First 125 De/W/n/ni/s Settlements
^fjjfti /\ Office of Waste Programs Enforcement 23 October 1993
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Settlement Options
High premium with no
remedy cost reopener
(290 PRPs)
91%
Low premium with remedy cost reopener
(28 PRPs)
9%
318 de minimis settlors have been
given a premium/reopener option.
91% of those settlors chose the higher
premium option with no remedy cost
reopener.
To date, five de minimis settlements have provided settlors with a premium/reopener
option as follows:
1. A de minimis PRP may choose to pay a higher premium amount and sign on to a settlement
agreement that does not include a reopener that may be triggered when cleanup costs exceed a
specified amount.
-OR-
2. PRP may choose to pay a lower premium amount and sign on to a settlement agreement that
does include a reopener that may be triggered when cleanup costs exceed a specified amount.
jKp EPA
of Waste Programs Enforcement
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The First 125 De Minimis Settlements
October 1993
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