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Guidance: Update to Superfund Notice Letters and Small Waste Contributors Brochure based on ARC Decision

Transmittal memorandum and interim modifications to six model notice letters issued under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, commonly referred to as Superfund), as well as revisions to the 1993 “Superfund and Small Waste Contributors” brochure.  Issued 4/30/2008.

These changes correct language, relating to the protection from contribution claims afforded by de minimis settlements, that is overly broad and potentially misleading after the Supreme Court’s decision in United States v. Atlantic Research Corporation, 127 S.Ct. 2331, 168 L.Ed. 2d 28 (June 11, 2007) (“ARC”). The ARC decision allows potentially responsible parties (PRPs) that have incurred site-related costs to seek recovery of those costs from other PRPs, in certain circumstances, under Section 107(a)(4)(B) of CERCLA. The decision could lead PRPs to seek such costs from settling parties despite the contribution protection afforded by Section 113(f)(2) and, for de minimis settlors, Section 122(g)(5).

The model notice letters attached to the transmittal memorandum include:

  • Model Notice of Eligibility to Receive a De Minimis Party Settlement
  • Model Notice Approving Reduction in Settlement Amount Based on Inability to Pay
  • Model Notice Denying Reduction in Settlement Amount Based on Inability to Pay
  • Model "First Point of Contact" Letter for Use with De Minimis Parties
  • Sample General Notice Letter
  • Sample General Notice Letter for a Site at which the Superfund Alternative Approach may be Used

along with an updated version of the Superfund and Small Waste Contributors fact sheet that was first issued in August 1993.

The model documents listed above, which are contained within the PDF file below, are available for download in Word format from the Cleanup Enforcement Model Language and Sample Documents Database.

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