Reported to be at the direction of the Department of Justice, the EPA is now requiring that anyone willing to enter into an Administrative Order of Consent must first agree to surrender all claims against the United States and any Federal Agency for the work to be performed. While it has long been a practice of the EPA to immunize itself from contribution claims arising from the work required in the Order, this new policy is an effort by the EPA to immunize the entire Federal government as a condition to enter into Consent Orders.
Consent Orders are generally preferable to Unilateral Orders. Not only do they avoid the connotation of being a “bad actor”, in CERCLA cases they allow for the signers to seek contribution, as they are settlements. By requiring signers to forego their rights to make any claim against any Federal agency, whether for contribution, cost recovery and even those pursuant to contracts, the EPA has likely made AOCs less attractive.
The EPA appears to be using its authority as a regulator to require a respondent to agree to give up both statutory and common law claims against the United States, or the EPA will not enter into an agreement. EPA argues that it is entitled to make this a requirement for settlements by virtue of the “unitary executive” theory, and so the EPA is, in essence, using its regulatory authority as a tool to provide legal immunity to other Federal agencies who may have contributed to the problem or are otherwise legally responsible.