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Investigations, Defenses and Rebuttals
Types of Investigations, Defenses, Rebuttals
1. COMPLIANCE EXPENSE: Closure, monitoring, inspection, site assessment, retrofitting, corrective action, discharge standards, and other design/operating costs are typically incurred under pending regulations irrespective of whether contamination exists and regardless of whether any cleanup is ultimately required. This could involve compliance with Federal, State, county, city or regional authorities. Often overlooked are local zoning requirements, county ordinances, and regional air and water quality authorities.
2. COMPLIANCE AVOIDANCE EXPENSE: Activities spurred by upcoming regulations that a company seeks to avoid compliance with by closing unit prior to effective date of new regulation.
3. COMPLIANCE ANTICIPATION EXPENSE: Activities driven by a desire to come into compliance with upcoming statutory or regulatory requirements.
4. ENFORCEMENT ACTIONS: Most enforcement actions under RCRA and other environmental statutes are "requirement-based" actions to bring about compliance with underlying permit or regulatory requirements. As such, these actions are merely an extension of the regulations themselves, not remediation or "cleanup" orders.
5. ROUTINE OR VOLUNTARY BUSINESS EXPENSES: Claims must be analyzed for elements involving routine or voluntary business expenditures. Often primary purpose is business expansion or efficiency enhancements that also have a secondary or collateral environmental benefit.
6. MAINTENANCE EXPENSE: Costs associated with maintenance irrespective of actual or potential releases.
7. EQUIPMENT REPLACEMENT DUE TO EXPIRATION OF USEFUL LIFE: Frequently units included in a claim such as wastewater plants are 40-50 years old and have reached the end of their useful life. It is not unusual for refineries to push their oil storage tanks to 80+ years.
8. MANAGEMENT INITIATIVE TO KEEP PACE WITH COMPETITORS, LIABILITY AVOIDANCE, PUBLIC RELATIONS: Firms will occasionally undertake environmental initiatives in order to gain a competitive, public relations, or liability advantage over their competitors, irrespective of actual releases from the facility.
9. TRI REPORTING: An increasing motivation for firms to change their land disposal practices is the annual Toxic Releases Inventory (TRI). The less wastes that are discharged to the land, the lower the annually reported number, the better for the image of the company.
10. EXCESSIVE COST BEING BILLED FOR REMEDIAL ACTIVITIES: Firm may bill for remedial costs that are out-of-line for the type of project being pursued.
11. SALE OF PROPERTY, ENHANCE INVESTMENT VALUE: One of the hidden motivations for capital expenditures at a facility may be management’s belief that they need to decrease perceived future environmental liabilities in light of potential purchase or outside investment. Situations have occurred where firms undertook remediation activities even in the absence of releases in order to “spruce up” the balance sheet.
12. INDUSTRY KNOWLEDGE (EXPECTED OR INTENDED): Company either knew or should have known that their activities and/or neglect caused the release of and/or exposure to harmful contaminants. (Detailed analysis of factors involved in this analysis is available).
13. GOVERNMENT KNOWLEDGE: Increasingly firms are maintaining that they are only required to know or only knew what the Government knew about waste disposal and groundwater contamination, despite having detailed knowledge of this relationship in advance of regulatory or legislative efforts.
14. “OPERATIONAL” v. “REMEDIAL”: This argument advances the premise that compliance requirements can be categorized according to whether they are "operational" or "remedial." This strategy attempts to reclassify RCRA regulatory compliance requirements such as unit closure, monitoring, assessment, discharge and/or corrective action activities as "remedial" and presumably akin to Superfund actions, ignoring the fact that these are all permit compliance requirements and in turn business maintenance activities.
15. RCRA CORRECTIVE ACTION = SUPERFUND: A relatively new argument that attempts to morph all RCRA permit-related corrective action activities as the functional equivalent of a "would be" Superfund action. This premise ignores the fact that the vast majority of RCRA Corrective Action compliance activities are undertaken regardless of whether contamination exists, and irrespective of whether any real cleanup is ultimately required.
16. “ENVIRONMENTAL HARM” = THREAT OF CONTAMINATION: A new plaintiff's argument that "environmental harm" has occurred when the mere threat of potential contamination has been identified. This definition attempts to skew the claim to include initial investigations and all subsequent activities even where no property damage has occurred and/or where no cleanup is required. This manufactured definition seeks to override the fact that permit compliance dictates many such investigative activities even when “cleanup” is not required.