On Being an EPA Superfund PRP

29 Apr, 2009  Environmental Compliance, Resources, Risk Management

On Being an EPA Superfund PRP

CERCLA, more commonly known as Superfund, allows EPA’s Emergency Response Program to take or compel action by others at sites contaminated or potentially contaminated by hazardous substances, pollutants or contaminants, and then recover costs associated with those activities.  Whether an emergency response or a longer-term investigation and cleanup, EPA uses an Enforcement First Policy (EFP) to identify potentially responsible parties (PRPs) to cover the cost of any action underway or anticipated.  The hunt for you will be thorough, and there is a specific 381-page manual to guide it.  There is even a directory of Agency experts (PRP Search Enhancement Team) available to support the effort.

In most emergency response situations the Federal On-Scene Coordinator (FOSC), or their contractor, arriving at your site is able to identify PRPs, and he or she may deliver a Notice of Federal Interest Letter formalizing your status.  Where the connection between event and PRP is less clear the process may start with an Information Request Letter or administrative subpoena, neither of which you can refuse to answer, seeking very detailed information.  If any of the supplied information “puts you in,” as defined solely by the Agency, you will receive a Notice of Liability Letter notifying you formally of your PRP status and offering the opportunity to negotiate.  There is an explicit expectation that you will cooperate and pay the costs of the activity.

If asking nicely for your “support” fails, the next step is legal action to force it, per the EFP: “If, however, a Region cannot negotiate a timely settlement with PRPs to perform the RA [Remedial Action] at the site, then the Region should issue UAOs [Unilateral Administrative  Order] to all appropriate parties to compel cleanup expeditiously before a Region proceeds with a Fund-financed RA.”  If you get hit with one of these and refuse, you are looking at triple (“treble“) the cost of what EPA spends to do the job, and no say-so in costing or managing the work.  At that point EPA has no obligation, and little inclination, to show any regard for the effects on your operation.  They can and they might, but it is far from certain.

At the conclusion of any work or expenditure by the Agency that they can attribute to a PRP, expect a Demand Letter demanding reimbursement of costs.  If you don’t pay, you will be hearing from the Department of Justice.  With penalties, treble damages and overhead add-ons, one dollar of liability can easily turn into four or more, and we have not even talked about potential prosecution or having to pay costs owed by other PRPs if they can’t or won’t pay their share.

Dr. Scott Harris is the Senior Risk Manager for IESO, L.L.C.  His experience covers over 27 years of Environmental, Health and Safety Management in Federal and State government, consulting, general industry and niversity instruction.  He received his Ph.D. in Environmental Science, with a specialization in Disaster and Emergency Management, from Oklahoma State University, and holds degrees in Geology (B.S.) and Public Health (MPH) from Western Kentucky University.  Before joining IESO Scott was a Federal On-Scene Coordinator for EPA Region 6 and a member of their Emergency Readiness Team.  He held DOD “Top Secret” and DOE “Q” security clearances, and directed multi-agency emergency response, planning and recovery activities for chemical, biological and radiological releases and exercises within the five-state region.

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