Practical Lessons in Dealing with EPA and Other Regulatory Agencies in Hazardous Waste Proceedings

TABLE OF CONTENTS

• I. INTRODUCTION
• II. DEALING WITH EPA AND OTHER REGULATORY AGENCIES
  • A. Introduction
  • B. Superfund
  • C. EPA's Superfund Administrative Process
  • D. Regulations and "Guidance"
  • E. Implementation of the Remedy
• III. EVALUATING THE LIKELIHOOD OF OBTAINING REASONABLE AND MORE COST-EFFECTIVE REMEDIAL ACTIONS
  • A. The Purpose Of The Negotiating Strategy
  • B. Cost of Not Implementing A Remedy
    • 1. Increase Cost Of The Remedy
    • 2. Other Possible Impacts If A Settlement Is Not Reached
    • 3. Examples Of Potential Savings From Negotiating A Cost-Effective Remedy
  • C. Factors To Be Weighed In Deciding To Accept A Particular Settlement Offer
    • 1. The Likelihood of Success If A Settlement Is Rejected
      • a. Liability
    • 2. Proving Arbitrariness Or Lack Of Consistency With The NCP Is Difficult
      • a. Courts Generally Defer To EPA
    • 3. Risk Assessment
      • a. Human Health
      • b. Environmental Risk Assessment
    • 4. Selection of A Remedial Action
    • 5. State And Community Role Is Difficult To Define And More Difficult To Use As Evidence Of Arbitrativeness
    • 6. The Existence of Arguments That Support A Relatively Small Allocation Is Usually Not A Defense
    • 7. Implications
• IV. SUBMISSIONS TO EPA
  • A. Introduction
  • B. The Use Of Advocacy
  • C. To Call EPA "Arbitrary And Capricious" Or Not, That Is At Least One of The Questions
  • D. Expert Opinion
  • E. The Level Of Scientific Need In An Administrative Proceeding
  • F. Distinction Between Statistical Confidence Levels And Proof
  • G. Principles Of Causal Association
• V. CONCLUSION

• I. INTRODUCTION

This paper provides some practical suggestions for dealing with regulatory agencies with a special emphasis on the legal basis necessary for scientific opinions in regulatory proceedings.

• II. DEALING WITH EPA AND OTHER REGULATORY AGENCIES

A. Introduction

Negotiating with the Environmental Protection Agency (EPA) and other federal and state regulatory agencies on behalf of a company regarding a Superfund site (or more generally regarding any environmental issue) demands not only familiarity with scientific issues, but requires negotiating skills, particularly flexibility and strategic planning. Unlike the normal industrial construction process, which involves an easily agreed upon goal and emphasis on management of the relatively standardized components of the process, negotiating a reasonable Superfund remedy involves an ill-defined goal, a decisionmaking process that can only be inferentially influenced by a company, and more flexibility than a contortionist in a circus. As a result, Superfund negotiations require few of the skills utilized in normal engineering work.

A grasp of a few of the numerous issues involved at these sites clarifies the need for such negotiation skills.

B. Superfund

First, there is the Superfund law itself, which provides the framework for the cleanup decisionmaking process. Superfund has aptly been described as a "poorly drafted" statute and a "technicality-ridden nightmare." The requirements that must be met to establish liability for reimbursement of remedial cost are: (1) there must be a release or a threatened release to the environment of a hazardous substance or something that contains a hazardous substance; (2) the release or threatened release must cause EPA or the state to expend Superfund money at the site; (3) a party must have disposed of a hazardous substance at the site; and (4) the site must contain that type of hazardous substance. ⁽¹⁾ Its imposition of no-fault, retroactive, and joint and several liability ⁽²⁾ is sweeping and often harsh. Theoretically, someone who sent only a few barrels to a site can be held liable for the full cost of cleaning up thousands of barrels at the site. ⁽³⁾

Companies have been held liable pursuant to the Superfund, even if:

The government need not prove causation, ⁽¹⁰⁾ rather a defendant must "disprove" causation. ⁽¹¹⁾ Generally, courts have held that defenses to Superfund liability are limited to one of the statutorily enumerated defenses, i.e., the contamination is not caused solely by a third party, God, or an act of war. Recently, however, courts have begun to recognize that a company is not liable if it sent to a site material which possesses such a low degree of hazard that no clean up of this material would be required (the so called "Alcan defense"). ⁽¹²⁾ EPA has initiated some Superfund reforms administratively. However, what EPA "gives" administratively, it can also take away administratively.

These facts generate resistance to Superfund by waste generators, owners and operators (potentially responsible parties -- PRPs): the "that's-not-fair" reaction. Notwithstanding this understandable and valid reaction to the statutory scheme, EPA has vigorously enforced the statute and has been uncommonly successful in the vast majority of court cases. In the few cases where PRPs have prevailed, Congress has often amended the statute to ensure future EPA success. Thus, PRPs may have little practical leverage in dealing with EPA, except that their refusal to implement a remedy will cause delay.

An understanding of at least some fundamental principles is absolutely essential to minimize remedial costs, avoid penalties and treble damages, and increase the strength of claims against other PRPs.

C. EPA's Superfund Administrative Process

The negotiation of a consent decree or order with EPA requires dealing with a number of different branches of the Regional Office. These parties include the Assistant Regional Counsel, Superfund remedial program managers, Superfund cost recovery specialists, Superfund risk assessors, Superfund hydrogeologists, and representatives of other EPA program offices who may be consulted on specific issues (e.g., the importance of a wetland). Each of these offices has its own particular perspective on a variety of issues that arise in the consent decree negotiation process. Each office is consulted at particular phases of the process. Knowledge of the special concerns of these offices is a powerful aid in deciding on a strategy and approach to EPA.

To state the obvious, EPA is not run like a corporation or any other business. Some of the issues of most concern to EPA bureaucrats have little impact on the bottom line -- the cost of the remedy. A successful negotiator must understand and address EPA's concerns, avoid pressing unnecessarily any EPA "hot buttons," and describe the PRP's suggestions, recommendations, and concerns in language familiar to EPA. Thus, a PRP must build both a scientific and bureaucratic case in order to succeed.

D. Regulations and "Guidance"

Apart from the process itself, there are the regulations and policies (usually documented in "guidance") on which EPA relies in determining what to clean up, how much to clean up, and what type of remedy to select (e.g., incineration, landfilling, biodegradation, capping, and pump and treat). The selection of a remedial action is based on a balancing of several factors (see Section II(C)). The National Contingency Plan (NCP), the regulation which guides all EPA decisions under Superfund, ⁽¹³⁾ is more than 42 tightly printed pages in the Federal Register and its preamble (which explains the requirements) is another 150 pages long. EPA Superfund has issued hundreds of guidance documents to supplement its regulations.

Application of these policies and regulations is not a mechanical procedure -- EPA is permitted to exercise its discretion at numerous points along the path of remedy evaluation. EPA may exercise its discretion in a manner that increases a PRP's remedial action costs or lessens those costs. Thus, a working knowledge of Superfund regulations and policies is essential since EPA staff are often familiar with all of their own guidance.

E. Implementation of the Remedy

The most dramatic savings in the Superfund cleanup process can be accomplished during the negotiation phase, before the remedy is selected. Once a remedy has been chosen, however, additional saving may occur, although it may be more difficult to achieve. The Record of Decision (ROD), the document which describes the remedy selected, is not a design document. Again, EPA has a great deal of discretion in converting a conceptual remedy into a design document. Often, however, EPA attempts to add requirements (although such action may be contrary to EPA policy).

The remedial action implementation phase is often a combination of additional exploratory field work and remedial design. If new information reveals a problem that is not addressed by the previously selected remedial action, a modified remedial action must be negotiated.

Once the construction phase begins, the emphasis generally shifts to contract management and project engineering supervision. Essentially, the job at this point is to cost-effectively manage implementation of the remedy. Although legal interpretations of the consent decree may be required, essentially the primary form of work is in the actual building and maintaining of the remedy. At this stage, negotiating skills and knowledge of EPA policy and regulations are less important.

Most EPA consent decrees require five year reviews of the remedial action and threat presented by the site, impracticability or other more general dispute resolution provisions. As a result, there is likely to be periodic need to "negotiate" with EPA.

• III. EVALUATING THE LIKELIHOOD OF OBTAINING REASONABLE AND MORE COST-EFFECTIVE REMEDIAL ACTIONS
  
  

A. The Purpose Of The Negotiating Strategy

The purpose of a PRP's remedial action strategy is to achieve the "lowest cost" remedy that protects human health and the environment. Unfortunately, a company cannot just devise the lowest cost remedy and implement it, as it can when it designs a process change or a plant expansion. A company must negotiate the remedy with EPA and the state agency (e.g., some regions say that they have never agreed to a remedy that has not received state concurrence). Thus, the issue is not only what is the lowest cost remedy acceptable to the company, but also what is the lowest cost remedy acceptable to EPA and, as a practical matter, the state.

The intermediate goals of such a strategy are: (1) obtain commitments from EPA concerning the precise details of the remedial action; (2) reach agreement as quickly as possible on a detailed remedial action plan or statement of work; and (3) avoid an expansion of this remedial action. This process requires an understanding of the overall conceptual framework of the Superfund program and knowledge of EPA's policies and guidances (including which policies, guidances, and positions are strictly adhered to by EPA and which ones are flexible).

Implementation of such a strategy involves judgment, based on experience of when its time to decide whether to agree to perform a remedial action or break off negotiations. Determining what is acceptable to EPA and/or a state and when to agree, however, reluctantly to EPA's position is a matter of judgment (i.e., in the words of a once-popular song, "you have know when to hold 'em and know when to fold 'em.") Superfund remedy negotiation is primarily a strategic negotiation, not an engineering exercise.

B. Cost of Not Implementing A Remedy

1. Increase Cost Of The Remedy

If a company refuses to implement a remedy, EPA could perform the remedy itself and seek to recover its costs from the PRPs. The statute clearly authorizes EPA to recover the costs of a remedial action, overhead associated with such costs, and even the payment of interest on past costs. ⁽¹⁴⁾

EPA is then not constrained to simply adopt their last negotiating position. Indeed, that result is unlikely since that last position proposed by EPA would be a compromise position. Often, EPA will rethink the entire remedy rather than implement its last negotiating position. At many sites, EPA is likely to attempt to satisfy the State, local governments, and local citizens. The path of least resistance is to spend one's way out of controversy. Thus, unleased and subject to their own discretion, EPA could drastically increase the scope of the remedial action. The cost of not cooperating with EPA, therefore, can (and often does) result in escalating remedial costs (averaging at least $25 million per site). The average increase in a remedial cost between the time the remedy is originally selected and actually implemented is approximately 75 percent.

2. Other Possible Impacts If A Settlement Is Not Reached

There are other benefits to negotiating a settlement with EPA. EPA may: (1) issue a special notice letter requesting the PRPs to enter into a negotiated settlement; (2) seek a judicial order requiring implementing the remedial action; or (3) issue a Section 106 unilateral "imminent and substantial endangerment" administrative order requiring the respondents to implement EPA's remedy. Failure to comply with such an order subjects a PRP to $25,000 per day penalties, and treble damages (i.e., payment of amounts equal to three times the cost of the remedy and $25,000 per day for violation of the order).

If a consent decree has already been entered, EPA could seek to enforce the consent decree by claiming that the remedial action is merely "additional work" contemplated by the Consent Decree and impose stipulated penalties against the PRPs.

3. Examples Of Potential Savings From Negotiating A Cost-Effective Remedy

Some companies have successfully used an aggressive site management and negotiation strategy to control costs at its Superfund sites. At one site, fourteen companies negotiated with EPA to perform a $10 million remedy in lieu of a $40 million incineration remedy. At another site a group of PRPs obtained EPA's agreement to "take over" implementing an incineration remedy from the State so that a more cost-effective approach to addressing high volume, low hazard soil and the incineration of drummed waste could be pursued, probably saving tens of millions of dollars. Finally, a group of PRPs at a contaminated sediment site convinced EPA to accept a statistical method of determining the amount of sediment that must be excavated. As a result, the PRPs saved at least $38 million in remedial costs.

Thus, an aggressive advocacy of a cost-effective and reasonable remedial approach is the key to obtaining the lowest cost remedy.

C. Factors To Be Weighed In Deciding To Accept A Particular Settlement Offer

1. The Likelihood of Success If A Settlement Is Rejected

a. Liability

An essential element to a PRP's decisionmaking is a balanced and honest appraisal of liability. The unfortunate reality is that, pursuant to existing law, most companies are liable for the cleanup of at least some portion of the site.

2. Proving Arbitrariness Or Lack Of Consistency With The NCP Is Difficult

a. Courts Generally Defer To EPA

Notwithstanding the unreasonableness of EPA's position from a PRP's perspective, the EPA may not be considered unreasonable from a judge's point of view. In general, courts give administrative agencies wide latitude in interpreting statutes that are designed to protect human health and the environment and require decisions in the "frontiers of science." ⁽¹⁵⁾ This legal principle is best understood within a factual context. For example, when a company proposed to use plastic casing ground-water wells instead of the steel casing wells specified in EPA Region II written guidance, to lower initial capital costs, lower maintenance costs (the acidic ground water would dissolve the steel wells) and to avoid ground-water contamination (because of the highly acidic site ground water would release metals from the walls of the wells), the court refused. ⁽¹⁶⁾ Although the PRP's position was not unreasonable and was supported by reputable scientific literature, the Court reasoned that the:

judicial system lacks the resources and the expertise to address every scientific dispute that might rise from EPA's actions. ... deference to the agency and the need to keep out of the courts such detailed scientific disputes as the proper material for monitoring wells demands a finding on the merits for EPA in this case. ⁽¹⁷⁾

This decision is all the more startling because the PRP would have been obligated to replace the wells if the plastic casing wells failed, so there was no cost to EPA. If a simple and relatively clear-cut scientific issue, such as whether acidic water will dissolve steel, is avoided by the courts, the judgmental and value-laden decisions concerning the subtleties and complexities of risk assessment and the appropriate site remediation are even less likely to be confronted by the courts.

3. Risk Assessment

a. Human Health

Risk assessment is a complex quasi-scientific procedure for organizing toxicological information. It allows, among other things, EPA to determine if the potential threat to health presented by a site warrants a remedial action and, if remedial action is taken, to determine when no further remedy is necessary. The hypothetical maximum level of human risk posed by materials at the site directly translates into the nature and extent of remediation, i.e., dollars and cents.

EPA's acceptable risk range for carcinogens is 10^-4 to 10^-6. Exposure to noncarcinogens should not exceed an level at which no adverse health effects are likely to occur include an adequate margin of safety (the so-called reference dose). On its face, EPA has the discretion to choose cleanup levels that vary by a factor of 100 (which could result in substantial cost differences).

There are at least 20 EPA manuals detailing how to perform risk assessments and providing detailed direction on what assumptions to use in deriving the risk. ⁽¹⁸⁾ There are numerous nonstandard risk assessment assumptions which can be used to set remedial action goals. As a result, the variation in remedial action goals, particularly soil remedial action goals, may be greater than 100.

There are sites where EPA has implemented remedial actions based on zero present risk and future risks that were below the 10^-4 risk level, but above the 10^-6 risk level. For example, at the Alcoa site in Massena, New York, EPA selected a $100 million sediment and soil cleanup, even though the risk was only 3 x 10^-6. According to a consultant involved in this case, the decision was primarily motivated by EPA's reaction to concerns expressed by local residents (who were Native Americans) and the local governmental authority (the Indian Tribe). ⁽¹⁹⁾ EPA risk management guidance allows Regional Superfund personnel the discretion to require cleanup even when the risk level is lower than 10^-4 if there are "site specific reasons" to warrant remedial action. As a result, a remedial action may not be determined solely by the magnitude of the risk, but rather by "public policy" considerations or bureaucratic ease of administration. Thus, EPA has substantial discretion to take regulatory action based on relatively low human health risks.

A working familiarity with these risk assessment manuals, procedures and regulations is necessary throughout the entire process of negotiating a consent decree in order to understand EPA's viewpoint (without necessarily agreeing with it). Such working knowledge is also essential to build a record that increases the likelihood of EPA adopting reasonable risk assessment assumptions and selecting a remedial decision that is health-protective, yet not needlessly or wastefully expensive.

b. Environmental Risk Assessment

EPA also has the legal authority to take action based on environmental risk and increasingly is relying upon environmental risks at Superfund sites. For example, the primary basis for the $6.2 million leachate interception, collection, and treatment system is the environmental impact of this leachate on the nearby State Mangrove Preserve. ⁽²⁰⁾

The rules for assessing environmental risks, if anything, are less defined than the rules for human health risks. Given the likelihood that an environmental impact may occur even at levels that are below levels of significant human health risk, it may not be in a PRP's interest to force EPA into spending more money to perform an environmental risk assessment.

• 4. Selection of A Remedial Action

The NCP provides nine criteria upon which to base the remedy selection -- (1) protection at human health and the environment; (2) attaining "applicable or relevant and appropriate requirements;" (3) permanence; (4) reduction in toxicity, mobility and volume; (5) short-term effectiveness; (6) long-term effectiveness; (7) cost; (8) state acceptance; and (9) community acceptance. ⁽²¹⁾

Although cost is a factor, it is not considered by EPA personnel to be the primary factor. ⁽²²⁾ EPA policy states that cost should be used to select from among alternatives which provide an similar level of protection of human health and the environment and which attain ARARs. ⁽²³⁾ EPA, however, is also required to consider costs in determining the degree of treatment in the remedy. ⁽²⁴⁾ EPA "would not always choose the most health-protective option", particularly if "the difference in effectiveness is small but the difference in cost is very large." ⁽²⁵⁾

Each of these factors has subjective elements. Therefore, the remedy selection process is imbued with broad discretion.

• 5. State And Community Role Is Difficult To Define And More Difficult To Use As Evidence Of Arbitrativeness

EPA is required to consider community and state acceptance in determining a remedial action. Complaints that EPA "caved in" to local community pressure, have however not been accepted by a court as a defense. Clearly, there is a point at which consideration of community and dtate acceptance would be arbitrary given the scientific situation. Whether a particular decision to defer to a state preference crosses the line is hard to prove.

• 6. The Existence of Arguments That Support A Relatively Small Allocation Is Usually Not A Defense

EPA's position is that allocation arguments are equitable in nature, not defenses. Negotiation strategy, however, normally includes informing EPA in writing of the weakness in their case and the limited degree of liability (notwithstanding the limited number of defenses). As a practical matter, most agency personnel will be affected to some degree by evidence of the weakness of their case. On the other hand, companies can sometimes yield to the temptation to believe one's own advocacy position. Such arguments, no matter how well crafted, should be weighed neutrally when a company is making its decision concerning whether to agree to a remedial proposal. Allocation arguments can be raised in contribution negotiations or cost recovery or contribution litigation.

• 7. Implications

In sum, great deference is given to EPA decisions, particularly complex technical decisions designed to protect human health and the environment. EPA's choice of a remedy involves a significant amount of discretion. Most courts have been reluctant to substitute their nonscientific judgment for EPA's judgment.

IV. SUBMISSIONS TO EPA

A. Introduction

A crucial method of implementing a remedial negotiation strategy is the careful crafting of every submission to EPA. Every submission must be written in a manner that advocates the remedial proposal of the PRPs and reserves, for the record, the PRP's defenses, and still does not undermine the PRP's credibility with EPA.

B. The Use Of Advocacy

Submissions written for Superfund remedy selection need to be written in a different style than research papers. Such submissions must be written as precisely, forcefully, and directly, as is consistent with the evidence. The audience should viewed as an intelligent layperson not a sophisticated engineer or risk assessor. The technical staff at EPA and eventually a judge are the two primary audiences.

Since these submissions are advocacy pieces (at least at some level), they must be written to convince. By advocacy, of course, we do not mean to suggest that an expert should state that the glass is half full if it is only one quarter full. However, if it is more favorable to the client to call a glass half full rather than half empty, the submission should do so. Where the evidence does not preclude it, conclusions, even if tentative, may still be drawn rather than throwing up one's hands in frustration and, in effect, implying that the evidence is hopelessly confused.

C. To Call EPA "Arbitrary And Capricious" Or Not, That Is At Least One of The Questions

There is a fine line between advocacy and aggravation. Given the limited negotiating clout of a PRP, one must always reassess where this line lies. There are terms, particularly those with legal meaning, that often must be used. For example, EPA's action must be upheld unless "the objecting party can demonstrate, on the administrative record, that the decision was arbitrary and capricious or otherwise not consistent with law." ⁽²⁶⁾ EPA costs are recoverable if they are "not inconsistent with the national contingency plan." ⁽²⁷⁾

EPA's negotiation and litigation position is that any cost actually incurred is presumptively consistent with the NCP. Increasingly, courts have held that the government's response action is "inconsistent with the NCP," if EPA acted "arbitrarily and capriciously" in choosing the remedy. ⁽²⁸⁾

Thus, if disagreements with EPA cannot be resolved, PRPs must inevitably characterize those EPA actions as "arbitrary and capricious" or, by definition, the PRP group has no valid basis for not complying with an administrative order requiring implementing the remedial action. ⁽²⁹⁾ Thus, if one fails to allege that EPA has acted arbitrarily and capriciously, the PRP will have even less "negotiating" clout and may be unable to defend a cost recovery action.

D. Expert Opinion

An expert is someone with special knowledge whose opinion may aid the ultimate factfinder, a judge or a jury. Often, the expert provides a report to support testimony. In other cases (e.g., Superfund submissions), parties submit documents to government agencies initially for administrative purposes. Such submissions, however, can also provide evidence in civil litigation, e.g., Superfund litigation. In such cases, the submissions submitted to EPA or other regulatory agency could become the basis of expert testimony.

Such submissions do not need to demonstrate a proposition by "conclusive" evidence. Such terminology indicates a much higher level of support than typically needed for an expert's conclusions in a cost recovery action.

E. The Level Of Scientific Need In An Administrative Proceeding

The scientific support for the subject of the submission (e.g., the identification of the source of hazardous substances at a Superfund site) need be no stronger than the normal level of support used in civil litigation, a somewhat more relaxed standard than employed typically by scientists.

In civil litigation, a fact need only be demonstrated to be more likely than not by a preponderance of the evidence for it to be taken as established. ⁽³⁰⁾ The level of support in civil litigation is not the same as the level of support used by scientists. In civil litigation, a scientist only needs "50.1% certainty," ⁽³¹⁾ i.e., a judgment that with a reasonable degree of scientific certainty, it is "more likely than not" that something is true or there is a causal association. ⁽³²⁾

In the context of proving harm from exposure to chemicals, however, a chemical must not only have the capacity to cause harm generally, but also be shown to have caused harm to a particular individual, with a reasonable degree of scientific certainty. ⁽³³⁾

F. Distinction Between Statistical Confidence Levels And Proof

The level of support required for civil litigation is not the same as the confidence level used in a statistical evaluation of data. Statistical confidence levels provide information to scientists concerning the likelihood that a positive finding is the result of chance rather than an effect caused by the specific factor being studied. Only in the rarest of situations does a particular piece of evidence, no matter how statistically significant, prove causation. The final decision on causation, therefore, must be a scientific judgment based on the weight of the evidence.

Historically, some scientists, as a matter of preference, prudence or tradition, have not been willing to state an opinion unless the weight of the evidence overwhelmingly favored the conclusion. Some scientists use qualitative measures of the weight of proof necessary (e.g., "strong evidence," "to a high degree of scientific certainty," "clear and convincing," among others) and others use quantitative measures (e.g., a 95% or 99% level of certainty). These qualitative and quantitative characterizations of the weight of proof communicate a overwhelming sense of the probability that the conclusion is correct. A 95% or 99% level of certainty, however, is not necessary in litigation. ⁽³⁴⁾

G. Principles Of Causal Association

Submissions seeking to identify a source of chemicals need not rely on unique chemical analyses. Although such chemical analyses are important in identifying chemicals in environmental cases, "conclusive evidence," if there is such a thing, is at best rare in environmental science (e.g., the one unique chemical that is the one and only cause of a particular disease). Almost always, evidence is a piece of a causal mosaic. When added together, the evidence may prove a particular proposition. Each piece of evidence has a certain degree of weight that can be characterized (e.g., strong, weak, questionable, or solid). We should keep separate, however, the concepts of evidence and conclusions (which are matters of judgment that are reached after weighing all of the evidence).

A determination of the source of a particular substance found at a site requires a professional judgment based on the weighing of all of the relevant evidence and consideration of the general principles for evaluating causal associations. In 1965, the now universally accepted principles of causal associations were annunciated in the context of evaluating whether the accumulated epidemiological studies and other scientific literature on the relationship between smoking and cancer proved a causal relationship.

In 1992, EPA's Science Advisory Board adapted these principles for using ecological studies to determine whether there is a causal relationship between exposure to manmade chemicals and environmental harm. These principles, although first applied to epidemiological evidence, provide an overarching scientifically sound basis for drawing causal conclusions from separate pieces of evidence in this situation.

As adapted to a Superfund causal questions, these criteria would be:

• Strength: The concentration of chemicals in the soil is high and similar to other releases and not at a level corresponding to background or ambient levels of such chemicals.
• Consistency: The presence of the chemicals in the soil is consistent with the chemical and physical characteristics of the chemical released. For example, one would not expect to find high levels of very soluble chemicals in soil many years after a spill. On the other hand, one would expect to find high levels of chemicals with high partitioning coefficients many years after a release. In these situations, the association between the presence of the chemical in soil and the release of the potential source of the chemical is repeatedly observed. ⁽³⁵⁾
• Specificity: There is a high correlation between the type of chemicals in the soil sample and the known composition of a potential source of the release.
• Temporality: The chemical thought to be the source was manufactured prior to the detection of the release and a likely release occurred prior to the detection of the chemical in the soil.
• The Presence Of A Chemical Gradient: There is a positive correlation between the release of the chemical thought to be the source and the chemicals found.
• Coherence: The hypothesis does not conflict with the laws of physics and chemistry that govern migration of the chemical.
• Experimental Evidence: Sampling data in the laboratory and the field support the hypothesis.
• Analogy: Release of similar chemicals results in similar soil contamination.

The application of these factors to the facts of a particular site requires considerable skill and advocacy.

V. CONCLUSION

The suggestions provided in this paper illustrate the complexities of negotiating a remedy at a Superfund site. Although an aggressive strategy does require time and effort to prepare submissions, the potential savings and ability to control cost increases in most cases more than compensates for any increased negotiating costs.

ENDNOTES

1. 42 U.S.C. ' 9607(b)(3).

2. New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985); United States v. Chem-Dyne Corp., 572 F. Supp. 802, 808, 822 (S.D. Ohio 1983).

3. Violet v. Picillo, 648 F. Supp. 1283 (D.R.I. 1986). But see nn. 10-12.

4. Violet v. Picillo, 648 F. Supp. at 1290-93 (citing the legislative history, prior cases and common sense); United States v. Ward, 618 F. Supp. 884, 895 (E.D.N.C. 1985); United States v. Wade, 577 F. Supp. 1326, 1333 n.3 (E.D. Pa. 1983); United States v. Conservation Chemical Co., 619 F. Supp. 162, 234 (W.D. Mo. 1985).

5. O'Neil v. Picillo, 682 F. Supp. 706 (D.R.I. 1988); see 126 Cong. Rec. 26,783 (1980) (Statements of Rep. Gore).

6. United States v. Conservation Chemical Co., 619 F. Supp. at 234; O'Neil v. Picillo, 682 F. Supp. at 728.

7. Missouri v. Independent Petrochemical Corp., 610 F. Supp. 4, 5 (E.D. Mo. 1985).

8. United States v. A & F Materials Co., 582 F. Supp. 842, 844-45 (S.D. Ill. 1984) (although a bona fide sale, i.e., for recycling into a commercially valuable product, would not result in liability).

9. United States v. Ward, 618 F. Supp. at 895 (PCB wastes from several states deposited along a roadside in North Carolina); United States v. Bliss, No. 84-2086C(1) (E.D. Mo. Sept. 27, 1988), 16 Chem. Waste Lit. Rep. 1061, 1065 (Nov. 1988) (holding a broker liable).

10. Amoco Oil Co. v. Borden, Inc., 889 F.2d 664 (5th Cir. 1989); United States v. Monsanto, 858 F.2d 160 (9th Cir. 1988).

11. United States v. Monsanto, 858 F.2d at 170.

12. U.S. v. Alcan Aluminum Corp., 990 F.2d 711 (2d Cir. 1993); U.S. v. Alcan Aluminum Corp., 964 F.2d 252 (3d Cir. 1992). See also Amoco Oil Co. v. Borden, 889 F.2d 664 (5th Cir. 1989) (holding that sending material to a site containing concentrations below cleanup levels did not cause the response).

13. National Oil Pollution and Hazardous Substances Contingency Plan, 56 Fed. Reg. 8,666 (1990).

14. 42 U.S.C. ' 9607(a).

15. Industrial Union Dept. v. API, 448 U.S. 607, 656 (1980) (plurality). See Siegel, The Aftermath of Baltimore Gas and Electric Co. NRDC: A Broader Notion of Judicial Deference to Agency Expertise, 11 Has. Env'tl. Rev. 331 (1987).

16. Browning-Ferris Ind. v. Muszynski, 899 F.2d 151, 160, 164 (2nd Cir. 1990).

17. Id. at 164. In fact, the court misrelied upon the slight advantage of steel wells in nonacidic ground water. As another court candidly stated that "[h]appily, it is not for the judicial branch to undertake comparative evaluations of conflicting scientific evidence." Natural Resources Defense Council v. Thomas, 824 F.2d 1211, 1216 (D.C. Cir. 1987).

18. For example, based on the admittedly strange way EPA often applies its risk assessments, the future risk of surface soil is the same regardless of the residential or industrial setting. If EPA assumes that in the future the soil could be used in a residential setting. EPA's position is not reasonable from a private company's point of view. No company or other of society's institutions, however, could function if such over predictive assumptions were used in day-to-day decisionmaking. Risk assumptions are not perceived as unreasonable from EPA's point of view and, unless an adequate record is established, may not be perceived as arbitrary by courts.

19. Personal communication.

20. Record of Decision, Munisport Landfill, FL, First Remedial Action - Final (EPA/ROD/R04-90/062, 1990).

21. 40 C.F.R. ' 300, 430(e)(9)(iii).

22. NCP, supra note 13, at 8,748.

23. Id.

24. Id. at 8,726.

25. Id. 8,727-8,728.

26. 42 U.S.C. ' 96, 13(j)(2).

27. 42 U.S.C. ' 9607(a)(4).

28. In the Matter of: Bell Petroleum Services, Inc. v. Sequa Corp., Civ. Act. No. 91-8080 (5th Cir., Sept. 28, 1993), Chem. Waste Lit. Rptr. 188, 1209.

29. The author raises this point because many scientists and engineers who participate in the Superfund process do not fully appreciate this necessity and object to any submission containing the phrase arbitrary and capricious.

30. The level of support, the degree of reliability, and precision necessary are different issues, determined, in large part, by the context and the legal framework. Bridge building stress and strain calculations are based on substantial experience and have a long history of reliability and precision. Such calculations might be admissible (regardless of their reliability), but they would be weighed by the factfinder based on the traditional level of reliability and precision required for such calculations.

In contrast, regulatory risk assessments are performed within a framework that provides a strong bias in favor of overestimating exposure and the predicted level of effects. Thus, such risk assessments are neither precise nor reliable proof of harm. One is not trying to prove the truth of the matter asserted in the risk assessment, but rather that the risk assessment followed the normal rules of such assessments.

The degree of reliability and precision necessary to identify the source of a tarry substance is less than required for bridge building. Furthermore, there are no legal biases built into the legal framework of a contribution action concerning the identification of chemicals. Therefore, a witness need not testify that the two chemicals are identical beyond any doubt or to a high degree of certainty. Comparisons of chemical compositions, necessarily, require a significant exercise of professional judgment. Obviously, the higher the degree of certainty, precision, and reliability the more weight will be accorded the testimony by the factfinder.

31. Ethyl Corp. v. EPA, 541 F.2d 1, 28 n. 58 (D.C. Cir. 1980) (en banc). See also National Lime Ass'n v. EPA, 627 F.2d 416, 453 n. 139, 453-4 (D.C. Cir. 1980).

32. In re "Agent Orange" Prod. Liab. Litig., 597 F. Supp. 740, 781 (E.D.N.Y. 1984), aff'd, 818 F.2d 145 (2d Cir. 1987).

33. Id. 818 F. 2d at 165. See, e.g., Sterling v. Velsicol Chem. Corp.. 955 F.2d 1188, 1199-1200 (6th Cir. 1988).

34. Obviously, conclusions should be worded as strongly and clearly as they can be stated. If there is a strong statistical confidence level supporting a particular piece of evidence, this should be stated.

35. A "plausible mechanism of action" is omitted because, in this context, it is redundant with consistency, the presence of a gradient, and coherence.