Once the Record of Decision is signed on your Superfund site, cleanup can seem cut and dried. But the reality is that inevitable technical, administrative, and legal knots must be untied along the way. In all phases of the remedy implementation, from design to construction to operation and maintenance, and beyond, a myriad of issues must be favorably resolved. And, just when you think that the work on the site is done, there is always the unexpected, such as Hurricane Irene’s flooding of a number of Superfund sites along the east coast last summer.
Tip No. 2: To Tackle Superfund’s Complexity, Assemble a First-Rate Team. The key to addressing multidisciplinary and complex issues over the extended period it will take to implement a Superfund remedy is a committed, competent, and creative team. The first, and often most important, member of the team should be a client contact who can maintain continuity and an understanding of site history. In our experience, when a company cannot commit an employee (or retiree from a company leadership position) to the project, having a law firm with a dedicated Superfund practice is essential to maintaining this sense of continuity.
Next, because the core issues associated with the remedy implementation will be technical, retain a talented environmental consulting firm as your project manager, again, with a view toward a long-term relationship. Technical competence in engineering, hydrogeology, risk assessments, etc. is assumed. The consultant must also be an excellent communicator to convey technical developments to the clients, the government, and third-parties. Importantly, the consultant’s ability to maintain consistently good working relationships with all agencies involved is essential, despite any disagreements and agency-employee turnover. Being willing to rework dated or inadequate solutions in order to propose creative and more cost-effective approaches, while working within the rigid bureaucratic administrative structures at the federal and state levels, is a superb challenge that a top-notch consultant can address adroitly.
The final principal member of the team, an environmental attorney or common counsel, will need to deal with legal issues and interpretations of the site’s Consent Decree or Order, as well as the potential applicability of new case law, regulations, guidance, policies, and Five-Year Reviews. Aside from environmental law, Superfund site counsel should proactively manage a broad range of issues in real estate/access, bankruptcy, litigation, and tax matters as they unfold over time. Counsel’s primary focus, however, will be to work closely with the environmental consultant to formulate the overall strategy for remedy implementation, site delisting, and termination of the Consent Decree or Order. This requires a capacity to respond to changing data, site conditions, financial pressures, and agency requirements.
Amid the complexities of a lengthy Superfund cleanup, hiring a first-rate team to shepherd the site to its completion is a simple step in the process and an investment that reaps synergistic value over time.