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Enforcement

Guidance: Superfund Settlements - Administrative Response Cost and Cashout with Peripheral Parties (Section 122(h))

Transmittal memorandum and attachments provide guidance on administrative response cost settlements entered under section 122(h)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, commonly referred to as Superfund) and on administrative cashout settlements with peripheral parties under section 122(h)(1) and the authority of the Attorney General. Issued 9/30/1998 and reissued with corrected transmittal memorandum on 12/22/1998.

The memorandum was reissued on 12/22/1998 because the original 9/30/1998 version did not contain subsection II(C) (Scope of Contribution Protection in Administrative Response Costs Agreements).  The appendices in the original guidance were not affected.

Appendices A, B, and C were subsequently amended and superseded when reissued on September 26, 2014. A link to the updated version of these models is available from the appendices list below. Additional information on the reissued models is available from guidance titled "Revisions to 2009 ARC Memo and Issuance of Revised CERCLA Past Cost, Peripheral, De Minimis, De Micromis, and Municipal Solid Waste Settlement Models" (9/26/2014).

The five appendices are as follows:

  • Appendix A: Model CERCLA Section 122(h)(1) Agreement for Recovery of Past Response Costs," issued 9/29/1995 and published in the Federal Register at 60 FR 62446 (Dec. 6, 1995) (Superseded by 9/26/2014 issued model)
  • Appendix B: Model CERCLA Section 122(h)(1) Cashout Agreement for Ability to Pay Peripheral Parties (Superseded by 9/26/2014 issued model)
  • Appendix C: Model CERCLA Section 122(h)(1) Cashout Agreement for Peripheral Party Settlements Not Based upon Ability to Pay (Superseded by 9/26/2014 issued model)
  • Appendix D: Model Federal Register Notice for CERCLA Section 122(h) Agreements
  • Appendix E: Model Responsiveness Summary for CERCLA Section 122(h) Agreements

Section III.B of the guidance is superseded by the 9/30/2015 memorandum regarding procedures for CERCLA administrative settlements and RCRA PPAs that rquire DOJ approval or signature.

This Section 122(h) guidance explains that ability to pay parties are appropriate candidates for peripheral party cashouts (in Subsection II.B.3.a), outlines the basic terms of such settlements (in Subsections II.B.3.b and II.C), and explains when such settlements should be embodied in a judicially-approved consent decree rather than in an administrative settlement (in Subsection II.B.3.a). CERCLA ability to pay settlements should be supported by an ability to pay analysis developed in accordance with the September 30, 1997 “General Policy on Superfund Ability to Pay Determinations

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