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By Peter Hayes
June 9 — Companies frustrated by their inability to mount early round challenges to EPA cleanup decisions are increasingly turning to the Freedom of Information Act for help.
Whether the potential benefits from employing FOIA tactics outweigh the attendant risks must be evaluated on a case-by-case basis, attorneys and interested parties tell Bloomberg BNA.
The federal Superfund law requires that potentially liable parties wait until clean up of a contaminated site is complete before challenging the agency's cleanup decision in court.
Meanwhile, companies and other liable parties must frequently pay out millions of dollars to carry out the EPA's often complex and multi-year remedy.
A party can refuse to participate in the clean up and instead wait for the Environmental Protection Agency to issue an enforcement order requiring it to take part. The enforcement order can then be challenged.
But, if a company loses such a challenge, it runs the risk of being hit with treble damages.
Faced with this dilemma, sources say that companies including such well-known names as Atlantic Richfield Co., BASF Corp., and DuPont have begun to look at the Freedom of Information Act as a way to support challenges to EPA cleanup decisions.
FOIA gives the public the right to request certain information from federal agencies. If the agency declines to release relevant information, the requester can sue in federal court seeking its release.
But FOIA actions are not without risks. They can be very expensive, and, in the context of cleanups under Superfund, may alienate the same attorneys with whom the parties will later have to negotiate, sources say.
Against these risks, parties must weigh the large sums at stake at polluted sites like the Portland Harbor in Oregon and the Lower Passaic River in New Jersey—a site with a cleanup tab already of more than $1.3 billion and a project the EPA terms “the largest cleanup in EPA history.”
“It's a pretty new approach that a number of practitioners are using,” attorney Mark Schneider with Perkins Coie LLP in Seattle told Bloomberg BNA.
Schneider is chair of the firm's national Energy and Environmental Litigation practice. He represents clients on a wide variety of environmental litigation matters, including those involving the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
“Because of the bar on pre-enforcement review, practitioners are looking for options to get judges to look at remedial issues,” Schneider, who previously tried environmental cases for the Department of Justice, said.
That bar precludes parties from challenging EPA's remedial decisions under Superfund until the cleanup is completed.
“I think it's an uphill battle because of the language of CERCLA on pre-enforcement review,” Schneider said.
And while no judge has yet done so, he said, “it's possible that a judge may take the opportunity in a FOIA case to look into the remedial issues as well.”
The selected remedy for the Passaic River is already the subject of full-blown FOIA litigation, Schneider said.
No FOIA suit has yet been filed regarding the Portland Harbor clean up, Schneider said. But a FOIA request has been made and there have been negotiations and a “voluminous exchange of correspondence” related to the request, he said.
FOIA can be useful in Superfund cases before and after the EPA issues a Record of Decision, attorney Emerson Hilton with Riddell Williams PS in Seattle, Wash. told Bloomberg BNA.
Hilton represents clients in matters involving environmental litigation and compliance counseling, including the Superfund law.
The Record of Decision documents the cleanup remedy for a site and certifies that the remedy selection process has followed the requirements of the Superfund law.
When EPA releases such a decision, he said, parties “ordinarily can't go straight to court and argue that the record doesn't support EPA's selected remedy,” or immediately challenge the decision as incomplete.
But a FOIA request could help parties challenge a remedy decision, he said.
An information request might also identify relevant documents that EPA omitted from the Record of Decision, Hilton said.
“A request might even uncover records showing that a selected remedy is technically flawed or arbitrary and capricious,” he said.
In that event, parties “could submit targeted comments and potentially cause EPA to re-think its remedy decision,” Hilton said.
EPA may also be encouraged to negotiate with the parties over the selected clean up “if documents uncovered in a FOIA request suggest that a remedy decision will be vulnerable in later litigation.”
The parties “might also just refuse to perform the remedy and position themselves for a remedy challenge in court. At complex sites with huge cleanup costs, the potential rewards of a remedy challenge may outweigh the risks,” he said.
“Records obtained through a FOIA request could help [the parties] better weigh the option of a remedy challenge,” according to Hilton.
Attorney Eric Klein with Beveridge & Diamond in Washington D.C. cautions against the word “challenge,” but said FOIA can be useful “to arm the parties in trying to shape the cleanup plan.”
Klein is an environmental civil litigator and regulatory counselor, whose practice includes the prosecution and defense of groundwater and site contamination cases.
“But FOIA is an expensive battle and can be difficult to win,” Klein told Bloomberg BNA.
FOIA actions can also ruffle feathers, he said.
“When you file a FOIA request, it will land on the desk of the person in the agency who may be the same person you're working with, who you otherwise need to get along with,” he said.
Environmentalists too are weighing the use of FOIA.
Jeff Tittel, chapter director of the New Jersey Sierra Club, said his organization is considering filing a FOIA request over the Passaic cleanup decision.
“A cap on a tidal river is not going to work,” he told Bloomberg BNA, referring to the requirement that some of the site's pollutants be contained through a cap of sand.
“The EPA is trying to compromise, but the responsible parties are still objecting. So we're looking at filing a FOIA too,” he said.
But not everyone says information challenges to the agency are novel.
The use of FOIA in environmental cases is not new, attorney Carolyn McIntosh with Squire Patton Boggs (US) LLP told Bloomberg BNA.
McIntosh counsels clients in complex environmental compliance matters and environmental, natural resources and commercial litigation, and represented the plaintiff in a FOIA action related to the Omaha Lead Superfund Site.
“It's a tool that I and others have used since the 1990s,” she said. “It's not CERCLA-remedy specific. I've routinely made requests not focused on the remedy decision.”
“It can be a tool to determine the basis for the agency's proposal, and to get a look behind the curtain,” she said.
With the advent of e-mail, information requests have become more onerous for the agency, and time consuming for the requesters to wade through.
“The watershed moment was when FOIA started focusing on e-mail, which tends to be less formal but can be voluminous,” McIntosh said.
“The frequency of electronic information makes it more challenging for agencies to comply. But I certainly don't think they've gotten any better at it.”
A FOIA battle is now being waged related to the Lower Passaic River/Diamond Alkali site in New Jersey.
While multiple parties are involved, a major contributor to the dioxin contamination at the site was the Diamond Alkali facility in Newark. The facility, run by the Diamond Alkali Co., produced Agent Orange and other pesticides during the 1960s, according to the EPA.
Fish and shellfish in the lower Passaic and Newark Bay are highly contaminated with mercury, PCBs and dioxin, the agency says.
In May 2007, approximately 55 companies—including Atlantic Richfield Co., BASF Corp., DuPont, ITT Corp., Pfizer Inc., Pharmacia Corp., PPG Industries, Inc., Textron Inc., and Sherwin-Williams—entered into an agreement with EPA to conduct a remedial investigation and feasibility study of the 17-mile Lower Passaic River study area.
At the same time, the agency was conducting a “focused feasibility study” for just the lower eight-mile stretch of the river.
After an eight-year study, the Cooperating Parties Group recommended targeted removal of the areas of highest contamination and natural attenuation, as well as measures to address ongoing pollution from runoff and sewage plant overflows.
But in April 2014, the agency released a proposed plan for public review and comment that called for “bank-to-bank dredging—one of the largest volumes ever to be dredged under the EPA’s Superfund program.”
The companies submitted comments on the proposal, challenging the appropriateness of the plan.
In October 2015, the group filed a FOIA action against the agency, alleging the agency failed to produce agency records related to the feasibility study and the proposed plan ( Lower Passaic River Study Area Cooperating Parties Group v. EPA, D.N.J., 15-CV-7828, filed 10/30/15 ).
On March 3, 2016, the EPA issued its Record of Decision for the lower 8.3 miles. It calls for “dredging approximately 3.5 million cubic yards of contaminated sediment bank to bank from Newark Bay to the Belleville/Newark border,” and capping “the entire lower eight miles of the river” at an estimated cost of $1.38 billion.
A spokesman for the Passaic plaintiffs' group told Bloomberg BNA that the group is “disappointed with the Record of Decision.”
“It focuses only on the lower eight miles and preempts the conclusion of the comprehensive $150 million remedial investigation and feasibility study,” he said. That study was “conducted under EPA's supervision,” and “demonstrates that a targeted remedy for the River is not only protective, but also consistent with the law and EPA policy,” he said.
Another mega-site that may be headed down the same road, is the Portland Harbor.
Contamination at the site stems from more than a century of industrial use along the Willamette River.
According to the EPA site summary, water and sediments at the Portland Harbor are contaminated with many hazardous substances, including heavy metals, polychlorinated biphenyls, dioxin, and pesticides.
The EPA released its remedial investigation and feasibility for the Portland Harbor site on Feb. 8, 2016.
On March 9, 2016, a group of parties called the Lower Willamette Group —which includes such companies as Arkema Inc., Bayer CropScience, Inc., BNSF Railway Co., and Chevron U.S.A. Inc.—submitted a FOIA request to the agency.
On March 24, EPA informed the group that it would take a year to comply with the request.
The group, a small subset of the potentially responsible parties identified by EPA, is composed of the ten parties who signed agreements with the agency to conduct the investigation and study of the site and four other parties who have contributed financially to the project.
Barbara Smith, a spokesperson for the group. said the FOIA request is not directly related to the EPA proposed plan. But it targets the feasibility study, which is the basis for the agency's proposal.
The group submitted its own feasibility study to the EPA on March 12, and EPA decided to re-do it using an outside contractor, she said.
“We've requested all the backup and e-mails for that analysis because under an administrative order on consent, we are responsible for the feasibility study.”
The EPA released its draft cleanup plan for the Portland Harbor June 8.
The plan calls for a combination of dredging and capping of the most contaminated sediment in areas where concentrations pose the highest risk to people, fish, and wildlife at an estimated cost of $745,660,000.
Other members of the Lower Willamette Group are the City of Portland, EVRAZ, Gunderson LLC, Kinder Morgan Liquids Terminals, NW Natural, Phillips 66 Co., the Port of Portland, Siltronic Corp., TOC Holdings Co., and Union Pacific Railroad Co.
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