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March 2011

Southern California Environmental Team Absolves Client from Duty to Pay CERCLA Response Costs Following Successful Challenge to the EPA

Southern California partner Brian Ledger and senior counsel K.C. Swisher successfully challenged an EPA claim made against the firm's client for CERCLA response costs related to the Operating Industries, Inc. Superfund Site in Monterey Park, California ("The OII Site").  The OII Site is a 190-acre former landfill that operated from 1948 to 1984 and accepted industrial and municipal wastes.  The landfill contains a wide variety of hazardous substances and is one of the most contaminated sites in the nation.  The EPA identified our client as a potentially responsible party ("PRP") and claimed our client shipped hazardous waste to the Site back in the 1970's.

In support of its claim, the EPA referenced hazardous waste manifests from our client.  The EPA assigned an arbitrary, default volume to each shipment because, it contended, the manifests did not include listed quantities or unit information.  As a result of the arbitrary assessment, the EPA insisted our client pay six figures in settlement of responses costs to avoid a federal lawsuit.  The Gordon & Rees team challenged the EPA's assessment, arguing that, while old, a careful review of the manifests and reconstruction of other pertinent records showed that the quantities and units could be ascertained with reasonable certainty, and that the actual number of units listed in the manifests was far less than the assigned default assessments.  After a hearing, the EPA agreed, conceding that it had improperly evaluated the manifests.  More importantly, after properly recalculating the units in each shipment, and reviewing the nature of the waste, the EPA determined that the actual volume of waste was below its threshold for seeking response costs.  The EPA then quickly dropped its claim for costs against the firm's client in its entirety.



Brian M. Ledger