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United States v. Broderick Inv. Co.

ELR Citation: 27 ELR 21267
Nos. 86-Z-369, 963 F. Supp. 951/(D. Colo., 05/15/1997) remedy selection

The court holds that the U.S. Environmental Protection Agency (EPA) violated the national contingency plan (NCP) by failing to reevaluate its selected remedy for cleaning up hazardous wastes at the Broderick Wood Products site near Denver, Colorado. Under an amended record of decision (ROD), EPA's selected remedy called for off-site recycling and incineration of solid and liquid sludges. During implementation, the contractor discovered that the solid concentration was actually nearly 51 percent, rather than the 15 percent the feasibility studies had anticipated. Due to the significantly higher volume of solids, the contractor undertook three unanticipated remedial actions that resulted in an additional $3.5 million in cleanup costs.

The court first holds that EPA did not arbitrarily and capriciously fail to characterize site conditions adequately before selecting a remedy. The court holds that the administrative record supports EPA's contention that its characterization was legally sufficient. Numerous documents in the record indicate that obtaining an accurate measure of solid concentration would have been prohibitively expensive and time-consuming, if not practically impossible. Moreover, mandating every imaginable study before remedy selection would hopelessly delay EPA's important activities, and the benefit of such an exacting requirement is unclear. Thus, the court holds that EPA's failure to conduct additional suitability studies before selecting the remedy did not violate the NCP.

The court holds, however, that EPA did violate the NCP when it failed to reconsider the selected remedy once the extent and impact of the changed conditions became obvious. The NCP requires reevaluation of a selected remedy if changed conditions fundamentally alter that remedy with respect to scope, performance, or cost. The amended ROD clearly did not contemplate the problems the higher solid concentration would pose. The court rejects EPA's argument that the contractor's three responses to the higher solid concentration each resulted from an independent changed condition and, considered separately, each was an insignificant deviation within EPA's discretion. The actions taken were separate responses to a single changed condition: actual solid concentration of more than three times the original estimate. EPA's own documents indicate that at the time the operative events occurred, the Agency shared this view. Thus, as a result of the single changed condition, it appears that in fact the remedy was altered fundamentally with respect to scope and cost. Confronted with such a significant deviation from the selected remedy, a critical examination of the action plan was required.

The court next rejects EPA's argument that because the railroad company liable for cleanup costs at the site failed to demonstrate that the Agency's failure to reconsider the selected remedy was not harmless error, EPA should be able to recover the additional $1.3 million. EPA failed to rebut the suggestion that it could have received a waiver of regulations that prohibited returning the solids to the site for incineration, and EPA's own documents indicate that returning the solids to the site for remediation would have resulted in a savings of between $385,165 and $890,787. The court further holds that EPA acted arbitrarily and capriciously in failing to follow the proper procedures. By failing to consider the effect of the increase in solid concentration, EPA effectively abdicated its statutorily mandated planning role and delegated to its contractors authority to instigate indiscriminate remedial measures. This precluded the Agency from selecting the remedy, as the NCP requires. Thus, the court holds that the railroad company's liability for response costs incurred in connection with remediations of the site shall not include the approximately $1.3 million in additional expenses incurred because of the unanticipated solids.

[Prior decisions in this litigation are published at 25 ELR 20462 and 27 ELR 20874.]

Counsel for Plaintiff
Stephen Taylor, Ass't U.S. Attorney
U.S. Attorney's Office
1961 Stout St., Rm. 1200, Denver CO 80294
(303) 844-2081

Counsel for Defendants
Gary E. Parish
LeBoeuf, Lamb, Greene & MacRae
633 17th St., Ste. 2000, Denver CO 80202
(303) 291-2600