La. Admin. Code tit. 33 § VI-709

Current through Register Vol. 50, No. 11, November 20, 2024

Section VI-709 - De Minimis Settlements

A. If practicable and in the public interest, as determined by the administrative authority, the department may settle with any PRP whose waste contribution to a site is minimal in terms of amount and toxicity in comparison to other hazardous substances or hazardous wastes or hazardous waste constituents at the site.

B. The department may consider a de minimis settlement offer when it has sufficient information about all identified PRPs, including financial information, to determine each PRP's waste contribution to the site and information about the costs of remedial action at the site.

C. The goal of negotiations with de minimis parties is to achieve quick and standardized agreements through the expenditure of minimal enforcement resources and transaction costs. Where feasible the department may require de minimis parties to negotiate collectively at multi-party sites.

D. To attain the goal set forth in Subsection C of this Section, the de minimis settlement should ordinarily involve a payment to the Office of Management and Finance by the settling party or parties, rather than a commitment to perform work. Where a remedial action is being conducted in whole or in part by PRPs, it may be appropriate for the settling de minimis parties to deposit the amount paid in accordance with the de minimis settlement into a site-specific trust fund to be administered by a third party trustee and used for remedial action for that site.

E. In evaluating a de minimis settlement offer the department may consider any factors and information it deems appropriate, including:

1. amount of waste contributed;

2. toxicity of potential settling party's waste;

3. costs of litigation;

4. public interest considerations;

5. value to the department of a present sum certain; and

6. nature and strength of the case against nonsettling PRPs.

F. De minimis agreements shall be entered into as cooperative agreements or judicial orders, in accordance with these regulations. Any de minimis settlement shall contain, in addition to other standard provisions, the following terms:

1. requirement that the settling party be responsible for a percentage of site remedial costs in excess of that amount the department and the party agree may be allocated to the settling party for purposes of settlement (premium payment);

2. reservation of natural resource damage recovery, except where expressly waived by the natural resource trustee(s); and

3. reopener clauses allowing the department to pursue the settling de minimis parties if information not known to the department at the time of settlement indicates that the volume and/or toxicity criteria for settlement is no longer satisfied with respect to the settling party or parties.

La. Admin. Code tit. 33, § VI-709

Promulgated by the Department of Environmental Quality, Office of Environmental Assessment, Environmental Planning Division, LR 25:2195 (November 1999), amended LR 26:2513 (November 2000), amended by the Office of the Secretary, Legal Affairs Division, LR 33:2139 (October 2007), LR 35:2180 (October 2009).

AUTHORITY NOTE: Promulgated in accordance with R.S. 30:2271 et seq., and R.S. 49:316.1(A)(2)(a) and (c).