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Negotiating EPA Consent Orders and Consent Decrees: Steering Your Client Through the Shoals

March 1994

Citation: ELR 10116

Author: Andrew N. Davis and Peter E. Hapke

Under the Superfund program,1 the U.S. Environmental Protection Agency (EPA or the Agency) faces a dilemma. The Agency wants potentially responsible parties (PRPs) to perform voluntary response actions pursuant to administrative consent orders or judicial consent decrees (collectively referred to as "orders" unless otherwise specified), but does not want to commit extensive attorney resources to negotiating the details of every order. Besides expending limited government attorney and program staff time, case-by-case negotiation of orders undercuts a national policy favoring uniform orders that reflect broad-based Agency goals, such as protection of human health and the environment and preservation of Superfund monies. Often, the result is a checkerboard of language mixed and matched from orders used at various Superfund sites around the country. The Agency fears that such hybrid orders may be overly protective of PRPs' interests and erode national uniformity as more and more EPA Regions issue them. Further, EPA is under increasing congressional and public pressure to speed the pace of Superfund cleanups and contain transaction costs, while ensuring that the PRPs, rather than the government, perform response actions. Agency attorneys, following the dictates of their clients -- the Superfund program staff -- bring these potentially conflicting goals to the negotiating table. This Dialogue discusses issues that typically arise during negotiation of orders under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).2 The principles of negotiation discussed, however, apply with equal force to the negotiation of orders under other statutes, including the Resource Conservation and Recovery Act (RCRA),3 the Federal Water Pollution Control Act,4 the Clean Air Act,5 and the Toxic Substances Control Act,6 as well as EPA and state environmental agency enforcement orders.

Mr. Hapke is an Assistant City Attorney in the Environmental Protection Section of the Seattle Law Department. He holds a J.D. and B.A. from the University of North Carolina at Chapel Hill and an M.A. in Public Policy from Duke University. The views presented in this Dialogue do not in any way reflect the views of the Seattle Law Department. Mr. Davis is an environmental attorney with the New England regional law firm of Brown, Rudnick, Freed & Gesmer. He holds a J.D. from the National Law Center, George Washington University, an M.S. and Ph.D. from the University of Massachusetts at Amherst, and a B.S. from Trinity College.

The authors thank Sharon S. Metcalf, Esq., and Douglas A. Cohen, Esq., for their valuable comments.