Although not explicitly stated, there was a strong presumption that consent decrees should include this language. Attached to this memorandum is the revised language. This memorandum explains the reasons behind changes to the language and details how the provision should be utilized. The revised provision is shown in the attachment to this memorandum. It has also been restructured into two provisions, one for use if there is MSW or MSS at the site, and one for use if there is no MSW or MSS at the site.
Regions have discretion to decide which of the two provisions is appropriate for the site.
The waiver has also been amended to include a bracketed reservation of rights permitting a settling party to assert defenses and counterclaims against any qualifying de micromis party who brings an action against that settling party relating to the site. This may be used if requested by a settling party. This change reduces the number of defined terms that are needed for the waiver from six to two. This section of the waiver also requires changes to reflect the revisions in the 1996 de micromis guidance. The regions have discretion to insert this provision where appropriate and are strongly encouraged to use it whenever EPA has concluded a de minimis settlement at the site.