EPA Remedial Investigation Guidance - Federal Lawyer
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EPA Remedial Investigation Guidance

We Help Companies Manage the Risks of Facing EPA Remedial Investigations Under CERCLA (Superfund)

Carlton S. Patton
Carlton S. Patton
EPA Remedial Investigation Team Lead
Former EPA CID Special Agent
Nick Oberheiden
Attorney Nick Oberheiden
EPA Remedial Investigation Team Lead
envelope icon Contact Nick

The U.S. Environmental Protection Agency (EPA) is responsible for enforcing companies’ compliance obligations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Under CERCLA, the EPA has the authority to designate sites as national priorities for environmental cleanup, and placement of a site on the National Priorities List (NPL) can present substantial liability risks for the site’s owners and operators.

As the agency explains, “[t]hrough CERCLA, EPA was given power to seek out those parties responsible for any release and assure their cooperation in the cleanup.” Failure to cooperate with the cleanup of a contaminated site (or Superfund site) can lead to civil or criminal enforcement; and, in many cases, the costs of cooperation can prove prohibitive. But, even when these costs aren’t prohibitive, they can still have significant negative impacts on a company’s bottom line; and, as a result, it will often be in companies’ best interests to seek to avoid—or at least substantially mitigate—Superfund cleanup responsibility.

This process starts with playing an active role in the remedial investigation process. As the EPA also explains:

“The remedial investigation (RI) serves as the mechanism for collecting data to characterize site conditions, determine the nature of the waste, assess risk to human health and the environment, and conduct treatability testing to evaluate the potential performance and cost of the treatment technologies that are being considered. The feasibility study (FS) is the mechanism for the development, screening, and detailed evaluation of alternative remedial actions.

“The RI and FS are conducted concurrently – data collected in the RI influence the development of remedial alternatives in the FS, which in turn affect the data needs and scope of treatability studies and additional field investigations. . . .”

By playing an active role in the remedial investigation process, companies can help ensure that their cleanup responsibilities are no greater than necessary. Conversely, if a company fails to interact with the EPA during the remedial investigation process—and intervene in the process as necessary—the EPA’s remedial investigation and feasibility study can lead to both unnecessary costs and unnecessary risks related to noncompliance. At Oberheiden P.C., we represent companies in communications with the EPA throughout the remedial investigation process, and we provide guidance to help our clients navigate the process successfully.

Put our highly experienced team on your side

Dr. Nick Oberheiden
Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd
Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester
Brian J. Kuester

Former U.S. Attorney

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Joe Brown
Joe Brown

Former U.S. Attorney

Local Counsel

John W. Sellers
John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara
Linda Julin McNamara

Federal Appeals Attorney

Aaron L. Wiley
Aaron L. Wiley

Former DOJ attorney

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (DOJ)

Chris Quick
Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow
Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

How We Assist Companies with EPA Remedial Investigations

Among all of the aspects of CERCLA compliance, dealing with a remedial investigation is among the most complex and most challenging. As noted above, these investigations present substantial risks, so it is imperative that companies take an informed and strategic approach to interacting with the EPA throughout the process.

When our EPA attorneys represent companies during remedial investigations, we communicate with the EPA on behalf of our clients. We also guide our clients step-by-step through the process of mitigating their cleanup liability to the greatest extent possible. This begins with understanding and applying the EPA’s remedial investigation guidance, and it culminates with determining the appropriate next steps following the EPA’s investigation:

1. Understanding and Applying the EPA’s Remedial Investigation Guidance

The EPA has published multiple guidance documents designed to both guide its investigators and help companies navigate the remedial investigation process. For companies facing cleanup obligations under CERCLA, understanding and applying this guidance is paramount for making informed and strategic decisions during the investigative process. These guidance documents include:

All of these are critical sources of information for companies that are facing cleanup responsibility at Superfund sites. However, while these documents provide important information, they also just scratch the surface of what company owners and executives need to know. Effectively intervening in the remedial investigation process requires an in-depth understanding of how the EPA interprets these guidance documents and how its approach to remedial investigations has changed over the past several years.

With extensive experience in all areas of environmental compliance, our EPA attorneys are able to efficiently guide companies through the process of understanding and applying the EPA’s remedial investigation guidance. We do this proactively so that we can anticipate the EPA’s approach to each individual investigation and plan our responsive efforts appropriately. This type of proactive approach is critical for protecting companies’ interests during the process; and, as a result, we prioritize getting to work quickly when engaged for EPA remedial investigation defense.

2. Playing an Active Role in the EPA’s Remedial Investigation Process

Beyond getting to work quickly, we play an active role throughout the EPA’s remedial investigation process. We apply the EPA’s guidance to implement targeted defense strategies, ensure that the EPA’s investigators are adhering to the agency’s guidance, and proactively steer our clients’ remedial investigations toward favorable resolutions. The outcome of a remedial investigation is not a foregone conclusion—companies can (and should) play an active role through their counsel, and they should be able to rely on their counsel to help them achieve favorable resolutions that duly mitigate their cleanup obligations.

Our experience handling all types of federal investigations, combined with our experience in the area of environmental compliance, positions us well to effectively represent companies during high-stakes remedial investigations. Along with our EPA experience, we have experience representing companies and their owners and executives in civil and criminal law enforcement investigations as well. Since EPA investigations can lead to civil monetary penalties (CMP) and the potential for criminal prosecution—in addition to cleanup liability—in many cases, this experience is essential for companies targeted in remedial investigations under CERCLA.

3. Responding to the EPA’s Conclusions and Determining Appropriate Next Steps

While companies can (and should) play an active role in the remedial investigation process and work with the EPA to influence the outcome of the process, the EPA ultimately makes the final determination regarding targeted companies’ cleanup responsibilities. After our clients’ remedial investigations and feasibility studies are over, we continue to work with the EPA as warranted, and we also assist our clients with challenging the EPA’s determinations through administrative and judicial means as necessary.

Due to the nature of Superfund matters, this is often a protracted process. We work on behalf of our clients to ensure that the process is as efficient as possible, while also doing everything necessary to protect our clients against unwarranted liability. Our attorneys’ experience includes achieving successful outcomes at the agency level and in the federal courts, both at trial and on appeal.

FAQs: Interpreting, Applying, and Enforcing the EPA’s Remedial Investigation Guidance

What Are the Potential Outcomes of an EPA Remedial Investigation?

The potential outcomes of an EPA remedial investigation vary widely. While most remedial investigations will lead to cleanup liability, targeted companies can often substantially mitigate the scope of their responsibilities—and their associated financial costs—by applying the EPA’s remedial investigation guidance and playing an active role in the process.

What is the EPA’s Remedial Investigation Guidance?

The EPA’s remedial investigation guidance is a series of documents that establish rules, recommendations, and procedures for both investigators and targeted companies during the remedial investigation process. When facing remedial investigations, companies should work with experienced EPA counsel to ensure not only that they have a clear understanding of how the EPA’s guidance impacts (or should impact) their next steps, but also that the EPA’s investigators conduct the inquiry in accordance with all pertinent restrictions and requirements.

How Are Remedial Investigations and Feasibility Studies Related?

When the EPA identifies a potential Superfund site and company to target for cleanup responsibility, it conducts a remedial investigation and a feasibility study concurrently. The goal of this concurrent approach is to “minimiz[e] the collection of unnecessary data and maximize[] data quality.” Once both the investigation and study are complete, the EPA then uses the data obtained from both inquiries to determine the targeted company’s remedial obligations under CERCLA and all other pertinent laws and regulations.

How is a Remedial Investigation Different from a Superfund Risk Assessment?

While a remedial investigation is focused on assessing a company’s cleanup liability, the purpose of a Superfund risk assessment is to analyze “the potential adverse health effects (current or future) caused by hazardous substance releases from a site in the absence of any actions to control or mitigate these releases.” A Superfund risk assessment is generally the first step in the broader remedial investigation and feasibility study process.

Do Companies Need Outside Counsel for EPA Remedial Investigations?

Due to the complexity of the legal issues involved in remedial investigations and the potential for substantial cleanup liability exposure, companies facing remedial investigations should engage experienced outside counsel promptly. By working with experienced counsel, company owners and executives can ensure that they are making informed decisions, and they can rely on their counsel to help steer the EPA’s investigation toward a favorable outcome.


Contact an EPA Remedial Investigation Defense Attorney at Oberheiden P.C.

If your company is facing an EPA remedial investigation, we encourage you to contact us promptly for more information. We represent companies in Superfund matters nationwide. To arrange a complimentary initial consultation with an EPA remedial investigation defense attorney at Oberheiden P.C., call 888-680-1745 or request an appointment online today.

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