CERCLA — PRP Notice

PRP Notice Receipt: What It Triggers and What You Do Next

EPA's first formal move in a CERCLA enforcement action is a notice letter designating your client as a potentially responsible party (PRP) under 42 U.S.C. § 9607(a). Two types exist, and they carry different procedural consequences.

Two Types of PRP Notices

General Notice Letter. Informs a party that EPA considers it a PRP. No moratorium, no formal deadline, no obligation to respond by a specific date. The practical effect: your client is now on EPA's radar and the clock on strategic decisions has started. Ignoring a general notice letter is not illegal, but it forfeits the opportunity to shape the site's trajectory.

Special Notice Letter (SNL). The SNL is the formal mechanism that triggers a structured negotiation window under CERCLA § 9622(e)(2). Upon issuance, EPA must suspend enforcement actions under § 9604(a) and § 9606 for 120 calendar days, and suspend commencement of the RI/FS under § 9604(b) for 90 calendar days. PRPs have 60 days after SNL issuance to submit a good-faith offer to conduct or finance the RI/FS:

• If PRPs submit a good-faith offer within the 60-day window, the moratorium continues through its full term
• If PRPs cannot agree on a cost-sharing arrangement or submit a good-faith offer within the 60-day window, the moratorium ends and EPA may proceed unilaterally

If EPA issues the SNL and PRPs do not respond with a good-faith offer, the moratorium lifts and EPA can: (1) conduct the RI/FS itself and seek cost recovery under § 9607 later; or (2) issue a Unilateral Administrative Order under § 9606.

The Four Categories of PRPs Under § 9607(a)

The statute imposes liability on four categories (42 U.S.C. § 9607(a)(1)-(4)):

1. Current owners and operators of the facility
2. Past owners and operators at the time of disposal of hazardous substances
3. Arrangers — persons who arranged for disposal or treatment of hazardous substances at the facility
4. Transporters — persons who accepted hazardous substances for transport to the facility

Enrique's first task on receiving a PRP notice is to confirm which category his client falls into. The categories have different evidentiary defenses and exposure profiles. An arranger claim (category 3) requires EPA to show the party arranged for disposal — this element was contested in Burlington Northern & Santa Fe Ry. Co. v. United States, 556 U.S. 599 (2009), where the Supreme Court held that arranger liability requires intentional steps directed to disposal, not merely knowledge that disposal may occur.

Immediate Response Decisions After PRP Notice

Do not ignore. The consequences of non-engagement compound:

• You lose the SNL moratorium window if it has been triggered
• EPA may characterize non-response as evidence of bad faith in later negotiations
• The time value of engaging early is substantial — PRPs who engage early have more leverage over RI/FS scope and remedy selection

Form or join a PRP group. Multi-party sites almost always have PRP steering committees. Joining a committee reduces individual negotiation costs, enables cost sharing, and positions your client as a cooperative party (relevant to EPA penalty discretion and orphan share negotiations).

Request the Administrative Record. EPA must make the Administrative Record available. The record contains the site investigation data that supports EPA's liability theory — essential for evaluating whether to contest PRP status, what category your client falls into, and what the likely RI/FS scope will be.

Evaluate defenses early. The three CERCLA defenses ("third-party defense" including innocent landowner, act of God, act of war) under § 9607(b) must be assessed at intake. The innocent landowner defense under § 9601(35) and the BFPP defense under § 9601(40) have strict evidentiary requirements that cannot be assembled retroactively.

What the Decision to Engage (vs. Ignore) Means Strategically

The strategic math is almost always in favor of engagement:

• PRPs who engage early negotiate RI/FS scope under an AOC, which lets them control costs
• Early settlers receive contribution protection under § 9613(f)(2) — this is the most valuable litigation asset in a multi-PRP scenario
• Non-responsive PRPs face cleanup cost recovery actions at EPA's cost (which is always higher than contractor cost) plus interest under § 9607(a)

The rare case for non-engagement: a client with a very strong argument that it is not a PRP under any of the four categories. In that situation, contesting PRP status before entering negotiations may make sense. But the burden is on the defendant to establish defenses — not engaging doesn't make the PRP designation go away.