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Managing Environmental Liability - Business Transactions and Brownfield Redevelopment - Looseleaf
Managing Environmental Liability - Business Transactions and Brownfield Redevelopment - Electronic
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9
NEGOTIATING CLEANUPS
§ 9.01 Introduction
The EPA's primary goal under CERCLA is to maximize the number of sites
that can be cleaned up in the shortest amount of time. Since the Superfund cannot
address all of the potential NPL sites, EPA has adopted an "enforcement first"
policy where PRPs are given the opportunity to implement the site remediation
process.1 EPA's goal is to PRP-funded remedial actions at 70% of the non-
Federal facility NPL and Superfund Alternative sites. To accomplish this target,
EPA will focus on are early initiation of PRP searches, completing negotiations
in a timely manner, and maximizing PRP-lead cleanup activities. EPA has also
recently announced changes to its cost recovery policies to enhance the
effectiveness of its cost recovery program.2 This chapter reviews the policies
used by EPA to implement investigations and remedial actions. Readers should
review chapter 5 for a summary of the site remediation process.
§ 9.02 Challenging NPL Site Listings
As explained earlier in Chapter 5, one of the ways that sites are placed on the
NPL is through an informal rulemaking procedure set out in section 553 of the
Administrative Procedures Act. Under this procedure, a notice is filed in the
federal register indicating that the site has been proposed for the NPL. After a 60-
day public comment period, EPA will then make a final listing decision and will
publish that decision in the federal register. It should be noted that while the date
gathering and preliminary HRS scoring is done by the EPA regional offices, EPA
headquarters makes the final listing decision.
Once the final listing is published, site owners or operators as well as PRPs
must file a petition challenging the decision to place the site on the NPL with the
circuit court of the District of Columbia within 90 days of the date of publication
of the listing decision. However, this court has been extremely reluctant to
overturn NPL listing decisions. The ban on pre-enforcement review has also been
interpreted to prevent PRPs from seeking to enjoin the EPA from proceeding with
a site characterization. Once the 90 days expire, PRPs are precluded from
challenging the listing of a site.
Chapter 9: Negotiating Cleanups
9.01 Introduction
9.02 Challenging NPL Site Listings
9.03 Requests for Information and Notices of Potential Liability
9.04 Special Notice Letters
9.05 Steering Committees
9.06 Non-Binding Preliminary Allocations of Responsibility (NBARs)
9.07 Mixed Funding
9.08 De Minimis Settlements
9.09 Negotiating the Remedy
9.10 Administrative Orders on Consent and Judicial Consent Decrees
9.11 Strategies for Responding to Unilateral 106 Administrative Orders
9.12 Trust Agreements
9.13 Public Participation
9.14 Arbitration
9.15 Landowner Settlements
9.16 Negotiating Prospective Purchaser Agreements
9.17 Using Engineering and Institutional Controls for Brownfield and VCP Cleanups
Lawrence P. Schnapf is Principal of Schnapf LLC. He has 25 years of national environmental experience with Fortune 500 corporations and a number of major New York-based law firms. Larry primarily concentrates on environmental issues associated with corporate, real estate and brownfield transactions, commercial lending, distressed debt, bankruptcy and workouts. He has extensive experience with brownfield redevelopment and financing, negotiating environmental insurance policies for business and real estate transactions, performing environmental due diligence for complex business transactions.
He has also written numerous articles on environmental law, is a contributing author for several chapters of "Brownfield Practice and Law: The Cleanup and Redevelopment of Contaminated Properties" published by Matthew Bender. He was also a contributing author for "The Law Of Environmental Justice" published by the American Bar Association and the Matthew Bender "Environmental Law Practice Guide." He is also the author of "Managing Environmental Liability in Transactions and Brownfield Redevelopment" published by Juris Publishing.
Larry is the co-chair of the New York State Bar Association's Hazardous Site Remediation Committee, co-chair of the NYSBA brownfield task force and a board member of the Board of the NYC Partnership of Brownfield Practitioners. He is also the chair of the Brownfield Committee Force of the Environmental Business Association of New York.
He is Chair of the ABA Section of Business Law Committee on Environmental, Energy and Natural Resources Law. He is a vice chair of the Environmental Transactions, Audits and Brownfield Committee; and Special Committee on Disclosure of the ABA’s Section of Environment, Energy and Resources. He is also a member of the board of BNA’s Environmental Due Diligence Guide.
Larry is also a member of the ASTM 1527 Task Group, Phase II Legal Work Group, Co-Chair of the legal sub-committee for the ASTM Vapor Intrusion Task Group, a member of the ASTM Appropriate Care/Continuing Obligations Task Group and Building Energy Performance Disclosure Task Group.
Larry is an adjunct professor of environmental law at New York Law School where he teaches “Environmental Issues in Business Transactions” and “Environmental Law and Policy”. He is also on the faculty of the Center for Christian Studies at Fifth Avenue Presbyterian Church where he teaches “The Bible and the Environment.”
He is listed in the International Who’s Who of Business Lawyers 2008 and 2009, the 2009 Madison’s Who’s Who of Executives and Professionals, and The International Who’s Who of Environmental Lawyers 2008 and 2009, and Chambers USA 2009 Client Guide of America’s Leading Lawyers for Business.
You can visit the web page of the Schnapf Environmental Law Center at http://www.environmental-law.net/
