On August 17, IADC member Joe Hovermill and a team of Miles & Stockbridge lawyers obtained a rare win against US EPA and the US Department of Justice in the United States District Court for the District of Rhode Island.
The trial involved a challenge to a superfund remedy selected by US EPA for the Centredale Manor Superfund Site in North Providence, Rhode Island. The remedy selected by EPA was estimated by EPA to cost over $100 million, but the client argued that because of flaws in the remedy selection process, the selected remedy could actually cost two or three times that much. The trial also involved an enforcement claim and a claim for over $40 million in fines and penalties for the client’s refusal to comply with an EPA Unilateral Administrative Order requiring the implementation of the challenged remedy.
In addition to a 50,000 page administrative record developed over ten years, the trial had live EPA and client fact witnesses and experts on both sides in the areas of human health and ecological risk assessment, environmental engineering, construction and chemical fate and transport. After thirteen bench trial days spanning 6 months, over a thousand pages of briefing, and a full day of closing argument, the Court found that certain aspects of EPA’s remedy selection process were arbitrary and capricious, remanded remedy to EPA for address that flawed decision-making, retained jurisdiction over the case through remedial design in connection with other issues, stayed enforcement of the UAO, and found objective good faith “sufficient cause” for the client to refuse to comply with that order, awarding none of the over $40 million in fines and civil penalties sought by the EPA. (Emhart Industries, Inc. v. United States Department of the Air Force v. Black & Decker, Inc. (C.A. No. 11-023 S))