End to Smoothly Running Cleanups?

• Author: Elliott P. Laws
• Position: Former EPA Assistant Administrator and former President for Safety, Health & Environment of Texaco, is Senior Counsel at Crowell & Moring
• Pages: 14-14

Page 14 ❧ THE ENVIRONMENTAL FORUM Copyright © 2009, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, July/August 2009

I’m aaid that in the

long run we may view

this “win” as more time

consuming and costly

By Elliott P. Laws

End to Smoothly

Running Cleanups?

In a little noticed report from EPA’s

Inspector General, the agency’s re-

gional of‌f‌ice in California was found to

have “inappropriately charged oversight

costs to the CTS Printex Site respon-

sible parties for greening activities and

other activities.” While of obvious good

news to the potentially responsible par-

ties, the decision has started a small

ripple which may turn out to be a tidal

wave of strict adherence to process in a

manner that upsets otherwise smoothly

operating cleanups.

e IG report was prompted by a

complaint made to EPA’s hotline alleg-

ing unauthorized expansion of the site

def‌inition to include releases from other

sites and that costs related to EPA’s re-

view of such matters included “a devel-

oper’s use of green building practices.”

e CTS Printex Site came to the

attention of EPA in 1985. e agency

ordered response actions to address

groundwater and soil contamination.

e site was listed on the National Pri-

orities List in 1990. e Record of De-

cision was issued in 1991 and EPA and

the responsible parties entered into a

consent decree in 1994 which set forth

the parameters of the cleanup as well as

the agency’s oversight costs which were

to be reimbursed by the PRPs.

e IG found that with regard to

oversight costs, the region “inappropri-

ately charged the responsible parties for

activities that are inconsistent with the

meaning of ‘oversight costs’ as def‌ined

in the 1994 consent decree.” e IG

determined that costs associated with

a request by the region’s site manager

to review the green building practices

to be used in the construction of new

homes on the site was “unrelated to

decisions or activities to ensure that the

site remedy remains protective.”

As to the second area of its investiga-

tion, the IG did not f‌ind any indication

that the region had improperly expand-

ed the boundaries. While the complaint

described the plume outside of the

property line as “of‌f site,” the IG found

that both the ROD and a contempo-

raneous 1991 cleanup and abatement

order issued by the California Regional

Water Quality Control Board def‌ined

the site as including the plume.

e report also indicates that in

2006 the land use for the site changed

from commercial-industrial to residen-

tial; no ROD amendment was ever

issued to address that change and the

accompanying remedial actions that

were necessary to ensure that the site re-

mained protective. EPA’s rules allow for

changes in land use and accompanying

changes in remedies if

those changes are spe-

cif‌ically discussed in

the ROD. A change

to the remedy such as

occurred at the CTS

Printex site, from

pump and treat to

monitored natural attenuation, is per-

mitted if the change is discussed in the

original ROD as a “contingency rem-

edy.” In those instances, the changes

can be handled through the less formal

Explanation of Signif‌icant Dif‌ferences

process. EPA’s guidance goes on to say

that in situations where there is no dis-

cussion of a contingency remedy, then

a ROD amendment may be required.

To further the region’s dif‌f‌iculties, in

its f‌ive year review of the site it stated

that “if the land use changes from the

current commercial-industrial use to

residential use, a comprehensive indoor

air evaluation for residential use and re-

evaluation of the remedy selected in the

ROD should be completed to ensure

long-term protectiveness.”

While this may appear to be a victory

for PRPs long chaf‌ing under perceived

oversight costs that are out of control, it

is not the pot of gold at the end of the

rainbow. e region’s billing documents

did not allow the IG to identify all of

the costs that were improperly charged

to the PRPs. But more importantly, the

region is being extra cautious in docu-

menting all of its actions for which it

will later seek reimbursement.

e IG did make two recommenda-

tions to the region. First that it “develop

and implement procedures to ensure

that all Region 9 staf‌f that charge time

to the site consistently and appropri-

ately charge oversight costs based on

criteria in cost recovery agreements and

adhere to agency guidance on oversight

and billing of responsible parties.” And

second that it “develop a cost recovery

strategy and review agency policies and

procedures in order to properly and

timely recover the government’s costs

from all appropriate parties associated

with the ROD amendment work.”

Both of these recommendations are

specif‌ic to the region’s oversight of CTS

Printex. However, the

region is looking at

all of its sites through

this prism and we

should expect other

regions to follow suit.

While on its face this

may be good news to

PRPs, you may soon f‌ind yourself look-

ing at ROD or consent decree amend-

ments on sites that you believed were

proceeding smoothly, simply because

agreed upon changes did not strictly

follow EPA guidance and now there is

a concern that oversight costs may not

be recoverable. is could be particu-

larly troublesome for older sites that are

f‌inally nearing completion. I’m afraid

that in the long run we may view this

“win” as being more time consuming

and ultimately costly for PRPs.

Elliott P. Laws, f o rm e r E P A

Assistant Administrator and former President

for Safety, Health & Environment of Texaco, is

Senior Counsel at C rowell & Moring. He can

be reached at elaw s@crowell.com.

T B  E