Round 3-14: Revised De Micromis Guidance
For very small volume waste contributors at Superfund sites (i.e., de micromis contributors) the cost of legal and other representation services may actually exceed a party's settlement share of response costs. If private parties threaten suit against these very small contributors, EPA enters into settlements providing contribution protection.
This reform helps to further discourage third party contribution litigation against de micromis parties by expanding de micromis eligibility, offering protective settlement agreements, and using de micromis waivers.
Implementation of this reform is complete.
The Agency incorporated lessons learned from this reform through the issuance of the Revised Settlement Policy and Contribution Waiver Language Regarding Exempt De Micromis and Non-Exempt De Micromis Parties on November 6, 2002. This reform is now considered closed out based on the 2002 guidance and passage, January 11, 2002, of the Small Business Liability Relief and Brownfields Revitalization Act that provided a legislative exemption for the De Micromis Parties.
In June 1996, EPA revised the de micromis guidance issued in 1993 by doubling the level previously identified for small party protection. The revised guidance recommends cutoffs for eligibility at:
- 0.002 percent (of total volume) or 110 gallons/200 pounds of materials containing hazardous substances, whichever is greater; or
- 0.2 percent of total volume for contributors that sent only municipal solid waste (MSW).
Another vehicle for protecting de micromis parties is the use of waivers in EPA settlement agreements. This method can be less resource-intensive than actually developing de micromis settlements for those parties threatened with lawsuits. De micromis waiver language was developed in the 1995 Remedial Design/Remedial Action model consent decree, which states that settling parties waive their contribution rights against de micromis parties.
To promote the use of de micromis waivers in settlement agreements, EPA and DOJ issued a memorandum entitled "Inclusion of Contribution Waiver by Private Parties in CERCLA Administrative and Judicial Settlements" in October 1998 (see Documents below).
Cherokee Oil Site, Charlotte, NC
In an agreement negotiated by EPA at the Cherokee Oil site, the major and de minimis contributors waived their rights to pursue over 1,000 de micromis parties. EPA also entered into de minimis settlements with over 200 small parties, with another round of settlements likely to follow. [FY97 Success]
Raymark Industries, Stratford, CT
The U.S. Government and the State of Connecticut protected homeowners living near the Raymark site from a third party lawsuit brought against them by Raymark in an attempt by the company to recover cleanup costs for contamination from its plant. Under the settlement, 58 homeowners whose property was contaminated with hazardous waste from the Raymark plant will each pay one dollar and be shielded from third party claims. [FY97 Success]
Title: Revised Settlement Policy and Contribution Waiver Language Regarding Exempt De Micromis and Non-Exemot De Micromis Parties
Date: November 6, 2002
Synopsis: Section 107 (o) provides a statutory exemption for de micromis parties that is similar, but not identical, to the protection previously afforded by the Unites States Environmental Protection Agency (EPA) and United States Department of Justice (DOJ) policy.
Title: Memorandum: Inclusion of Contribution Waiver by Private Parties in CERCLA Administrative and Judicial Settlements
Date: October 2, 1998
Synopsis: This memorandum explains the changes and the reasons behind the changes to the July 1995 revised Model Remedial Design/Remedial Action Consent Decree. It also details how the provision should be used.
Title: Fact Sheet: Revised De Micromis Guidance -- EPA Reducing Transaction Costs For Small Volume Contributors
Date: June 4, 1996
Synopsis: This fact sheet summarizes EPA's efforts to reduce transaction costs for small volume contributors.
Title: Revised Guidance on CERCLA Settlements with De Micromis Waste Contributors
Date: June 3, 1996
Document #: NTIS PB96-180484
Synopsis: This guidance instructs the Regions to offer a de micromis settlement only where potentially qualifying parties: 1) have been sued by other PRPs at the site; 2) face the concrete threat of litigation from other PRPs at the site; or 3) have approached EPA seeking a settlement and the Region has determined that such parties have a reasonable expectation of facing contribution litigation.
NOTE: This document contains the following attachments:
- An informational brochure entitled "Superfund and Small Volume Waste Contributors: De Micromis Settlements," which provides introductory information for potential settlors about the Superfund program and de micromis settlements.
- "Sample Cover Letter for De Micromis Questionnaire," which introduces the recipient to the Superfund program, the site, and the concept of de micromis settlements, and invites the recipient to fill out the questionnaire.
- "Model De Micromis Questionnaire," which is to be completed by potential settlors, and contains a series of questions about the potential settlor's waste and its involvement with the site to assist EPA in determining eligibility for settlement.
- "Sample Cover Letter for De Micromis Settlement," which should accompany the de micromis settlement when the settlement is sent to the settling party for signature.
- "Model CERCLA Section 122(g)(4) De Micromis Administrative Order on Consent," which provides model settlement language for administrative resolution of a de micromis party's liability.
- "Model CERCLA Section 122(g)(4) De Micromis Consent Decree," which provides model settlement language for the judicial resolution of a de micromis party's liability.
- "Model CERCLA Section 122(i) De Micromis Federal Register Notice," which is for use by EPA staff when providing the notice and comment required by �122(i) of CERCLA.