EPA Updates Consent Order, Design and Corrective Action Statement | Morgan lewis


The updated Design / Corrective Action Authorization Decree and Statement of Work template aims to streamline and expedite CERCLA settlement negotiations and address environmental justice concerns of Superfund sites in affected communities .

The United States Environmental Protection Agency (EPA) has long relied on template documents to facilitate site clean-up under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The application document that typically takes the longest time to negotiate and finalize is the Design / Corrective Action (RD / RA) Consent Decree (CD). The CD is a legal agreement between the United States and potentially liable parties (PRP, or the settlement defendants), negotiated between the EPA, the US Department of Justice (DOJ) and the settlement defendants, which is filed in federal court, subject to public comment, then seized by a US district court. The CD includes a Statement of Work (SOW), which provides the procedures and requirements for implementing RD / RA under the CD.

In 2014, the EPA and DOJ released an updated RD / RA CD template and SOW. Minor updates have been made over the years with the latest changes coming in 2020.

In an effort to streamline the latest CD RD / RA model, a national working group, made up of lawyers from the EPA Office of Site Remediation Enforcement, EPA regional offices and DOJ, reviewed the latest model. of CD RD / RA and drafted a revised template. In addition, the task force developed new environmental justice provisions for the statement of work, seeking to align them with the priority given by EPA administrator Michael Regan to the EPA commitment. in favor of the protection of environmental justice and Decree 14008, Tackling the Climate Crisis at Home and Abroad: Ensuring Environmental Justice and Boosting Economic Opportunities.

The 2021 RD / RA CD and SOW model went into effect on August 31, 2021, and all future RD / RA CDs will use the new model.

KEY REVISIONS TO CD RD / RA 2021

The EPA has incorporated many wording changes to tighten up the language and avoid redundancies. Beyond that, the following represent some of the important changes to CD and EDT:

  • Using macros to customize the CD: Previously, a lawyer preparing the first draft of the CD had to follow the myriad of instructions and the bracketed text interlaced throughout the template. Now the lawyer can customize the CD for a particular site with just a few keystrokes.
  • Section II, Related Parties: Section II provides that the various parties are bound by the DC. Previously, copies of the CD had to be provided to contractors and sub-contractors performing PRP clean-up work. Now a notice of the CD rather than a copy of the CD must be provided.
  • Section III, Definitions: Important revisions to the definitions include (1) “Future Intervention Costs” now incorporate the definition of “Intermediate Intervention Costs”, which was previously indicated and defined separately. In addition, the interest clause portion of the definition now clarifies that it includes all accrued interest on unreimbursed EPA costs, including “past response costs”; (2) The Settling Federal Agency now has the ability to limit the scope of the US Department of Defense representations regarding liability to one or more branches of service; and (3) “Work” now has a narrower definition, focusing only on those articles and provisions that actually contain work obligations. Previously, “Work” was defined to include all activities and obligations under the CD, except the activities of the Records Retention section; now it only encompasses the obligations under Sections V to VIII which relate to the performance of the work, property requirements, financial insurance and indemnity / insurance.
  • Section V, Execution of the work: Section V of the CD provides a detailed approach to how the Settlement Defendants will carry out the cleanup job. A significant change has been made to the paragraph regarding “Corrective Action Amendments”, which now expressly requires that settlement defendants do more than simply implement changes to the remedial action that are ” EPA selects to meet and / or maintain performance standards or to execute and maintain the effectiveness of the corrective action when this change is consistent with the scope of the original corrective action, but also if the EPA selects an additional response action because a reopen condition is satisfied. Changes should be selected in accordance with the National Contingency Plan (NCP). Settlement Defendants may participate in any NCP public comment opportunity as well as seek a dispute resolution under the CD.
  • Section VII, Financial Insurance: It has now been clarified that the amount of financial assurance is based only on “works” as described in section V, which does not include other costs. In addition, in the context of a request for a change in the amount, form or terms of financial insurance, the CD template provides an alternative that would allow settling defendants to invoke the dispute settlement regarding the decision. from the EPA no earlier than 30 days after the decision. Where a certain period (180 days are included in brackets) after receipt of the request by the EPA. This alternative may provide some relief to settlement defendants who have requested a reduction that the EPA is slow to consider.
  • Section XII, Dispute Resolution: As stated above, Settlement Defendants must use dispute resolution procedures to resolve any dispute arising out of the CD; however, dispute resolution procedures have been revised to confirm that Settlement Defendants cannot initiate a dispute to challenge the decision record and to clarify disputes which are limited to administrative record review.
  • Section XV, Undertakings entered into by the defendants settling: To further streamline this section, the clauses of the CERCLA and the Resource Conservation and Recovery Act (RCRA) have now been combined with the clauses of the United States Constitution, the Tucker Act and the Equal Access to Justice Act. With respect to the defendant’s settling reservations, the undertakings listed above do not apply to proceedings and orders instituted after the date of entry into force of the CD. The scope of the defendant’s covenants pending settlement has been clarified, and they no longer apply to unrelated matters such as tort claims, government contract claims or claims under the Uranium Mill Tailings Radiation Control Act. In addition, reservations have been omitted for matters not covered by the covenants in order to avoid duplication, such as for tort claims. Finally, the coverage of the de minimis / ability to pay (ATP) exemption has been revised to address issues in future de minimis / ATP regulations, thus no longer reflecting the issues addressed by the DC.
  • Section XVII, Records: Previously, defendants in settlement had to certify that they had no records. Now, Settlement Defendants must certify that they have put in place a stay for litigation relating to the site.

Major Revisions of the SOW 2021

In addition, significant changes have been made to the EDT. Specifically, some provisions that were previously part of the CD regarding decisions made during the cleanup process have now been moved to the EDT. Most importantly, the revised SOW contains several provisions for community participation to address environmental justice issues facing communities disproportionately affected by pollution.

It is important to note the following major revisions:

  • Section 2, Community participation: The provisions for community participation have been moved from CD to EDT. Overall, the role of settlement defendants has been broadened in community engagement activities. For example, as part of the obligation to provide information to the EPA on the design and implementation of the remedy, defendants in a settlement situation must provide a community impact mitigation plan, which must contain validated data from the monitoring of impacts on communities. In addition, information relating to clean-up work performed by Settlement Defendants will need to be communicated to the EPA in an appropriate manner to be shared with the public and community education levels. In addition, Defendants’ settlement responsibilities regarding working with a selected community group for technical assistance and entering into a Technical Assistance Plan have been clarified and are now part of this section.
  • Section 3, Coordination and Supervision: The SOW now includes provisions for the selection and duties of the project coordinator and the supervising contractor, which were previously part of the DC.
  • Section 5, Corrective Actions: This section now includes provisions for emergency response, reporting and permitting, which were previously part of the CD.

IMPLICATIONS

EPA and DOJ are excited about the CD RD / RA and EDT revisions and hope that they will lead to faster negotiations and, therefore, quicker tune-up. To help address any learning curve, the EPA will be hosting an informational webinar in October to walk through and explain the revisions. As the revisions simplify and reduce redundancies in several sections, including dispute resolution, payment of response fees, and ownership requirements, we’ll see if the previously slow negotiations were the result of excessive words, substance of the provisions or otherwise. On the implementation side, the increased involvement of Settlement Defendants in community work will increase the costs and time of the overall cleanup process.

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