PRP Access to Superfund Sites: A Primer
By Lloyd A. Gelwan
A company which has been named a Potentially Responsible Party (PRP) pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) which is unable or unwilling to perform the cleanup has a considerable incentive to monitor the Government's cleanup expenditures.
First, the United States Environmental Protection Agency (EPA), which oversees cleanups under CERCLA, and is under a statutory direction to select remedies that are “cost effective”, has been criticised by federal watchdog agencies for dramatic accounting failures and for inability to control cleanup cost overruns. Defendants who hope to minimize their exposure in EPA cost recovery actions will want to present to the finder of fact a detailed picture of the exorbitance of the EPA's remedy and the imprecision of its accounting procedures.
Second, courts have not been sympathetic to PRP defendants attempting to demonstrate inconsistency with the National Contingency Plan (NCP) by challenging EPA's remedy or cost accounting procedures at trial without having specific facts and figures to support their attack. Courts have been particularly unsympathetic to PRPs who have failed to perform discovery on these issues.
Third, PRPs have no ability to challenge EPA's remedial design or particular expenditures prior to the inception of a cost-recovery action. The federal courts have consistently held that CERCLA does not permit pre-enforcement review of response actions, even before Congress codified this bar in the 1986 amendments to CERCLA.
Fourth, CERCLA holds a PRP liable for a wide variety of costs including: all costs of removal or remedial action incurred by the United States, a state, or an Indian tribe not inconsistent with the NCP; any other necessary costs of response incurred by any other person consistent with the NCP; damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction or loss; the costs of performing any health assessment or health effects study pursuant to CERCLA section 9604(i); and interest on all amounts recoverable under CERCLA. Prior to completion of a response action, the Government may obtain a declaratory judgment establishing its right to recover future costs of cleanup. In March 1990, EPA estimated the average cost of remediating a hazardous waste site under CERCLA, excluding oversight and management costs, to be approximately $27.8 million. Last year, EPA concluded over $1 billion in settlements under CERCLA.
Fifth, defenses to a CERCLA cost recovery action are few and difficult to sustain. A PRP may avoid liability under CERCLA only if it can show by a preponderance of the evidence that the release or threat of release of a hazardous substance and resulting damage was caused solely by: an act of God; an act of war; an act or omission of a third party other than the PRP's employee, agent or contractor. The PRP must also show that he exercised due care with regard to the hazardous substance and took precautions against the third party's foreseeable acts and omissions and foreseeable consequences of such acts and omissions.
Sixth, CERCLA has been interpreted to impose strictliability. Even the selection of a responsible waste hauler does not bring the generator PRP within the third party defense. Also, liability is joint and several unless the PRP can establish that the injury caused by its contribution of a hazardous waste to a Superfund site is divisible or otherwise subject to apportionment.
One way to monitor the Government's expenditure of funds is to serve EPA with discovery requesting the detailed accounting records EPA is required to maintain throughout the cleanup process under CERCLA. This method, however, has built-in problems due to EPA's record of poor bookkeeping. Moreover, the paper record may not necessarily reveal inefficiencies in the contractor's performance of the remediation, or the extent to which the typical remedial tasks, such as soil sampling, were performed with excessive zeal and at excessive cost.
Contractor zealousness is a major source of concern for PRPs. EPA's agreement with the remedial contractor may compensate the contractor per unit of waste removed. The contractor's compensation and the total cost of the cleanup could rise drastically depending on the manner of sampling and removal of waste. For instance, a pattern and practice of removing a uniform volume of soil surrounding every item of debris may be unnecessary depending upon the location and topography of the waste site. The wastefulness of removing this volume of soil, or of a myriad of other contractor functions, may not be apparent from a review of EPA records. Typically, the PRP will want his expert or an expert retained by a committee of PRPs to oversee the contractor's work as a firsthand means of documenting inefficiencies and unnecessary work.
The limited procedural and substantive rights of PRPs to monitor the contractor remedial actions is another source of concern. The huge cost associated with CERCLA cleanup creates opportunity for waste and necessitates close monitoring by PRPs. EPA's internal procedures encourage PRP participation in development of an administrative record (submission of comments and relevant information), but EPA Regions have the discretion to limit PRPs' access to cleanup sites, validated data and draft reports based on “safety and other relevant considerations.”
The EPA exercised this discretion in one recent instance relating to a Pennsylvania landfill. The agency erected a small open-air observation platform fifty to a hundred feet above the base of its contractor's remedial operations which could safely accommodate only two or three observers. It supplied the PRPs' attorneys and their experts with binoculars to observe the contractor's activities, six hundred to a thousand feet away.
When the PRP committee protested these restrictions, they were advised that more proximate supervision of the contractor's work would interfere with the progress of the remediation. The PRP committee responded with a lawsuit against EPA to compel more meaningful access, which the federal district court was prepared to grant when EPA settled the matter by stipulating to a degree of proximate PRP oversight. In light of the number of hazardous waste sites and the frequency of cost recovery actions, it is surprising that no reported cases discuss the procedural tools that PRPs may use to gain access to the site of a remediation they may be forced to finance.
While no provision of CERCLA speaks to the issue of PRP access to a waste site, CERCLA and the 1986 SARA amendments arguably provide EPA with abundant authority to enter upon and secure a hazardous waste site. Section 104(a)(1) of CERCLA provides that:
[T]he President is authorized to act, consistent with the National Contingency Plan, to remove or arrange for the removal of, and provide for remedial action relating to such hazardous substance, pollutant, or contaminant at any time (including its removal from any contaminated natural resource), or take any other response measure consistent with the National Contingency Plan which the President deems necessary to protect the public health or welfare or the environment.
Section 104(b)(1) provides that the President:
may undertake such investigations, monitoring, surveys, testing, and other information gathering as he may deem necessary or appropriate to identify the existence and extent of the release or threat thereof, the source and nature of the hazardous substances, pollutants or contaminants involved.... In addition, the President may undertake such planning, legal, fiscal, economic, engineering, architectural, and other studies or investigations as he may deem necessary or appropriate to plan and direct response actions, to recover the costs thereof, and to enforce the provisions of this chapter.
These provisions would be of little avail without legislation establishing the EPA's right of access to a hazardous waste site to investigate and determine the existence of hazardous substances which have been released or which threaten a release. Therefore, Congress amended Section 104(e) of CERCLA to establish the EPA's right of access to a hazardous waste site to inspect records and take samples upon the Government's request. While the statute permits the EPA access to a hazardous waste site, it provides no mechanism to accomplish entry. One lower court concluded that an ex parte administrative warrant proceeding is the proper vehicle to secure access, only to be reversed by the court of appeals, the opinion of which was vacated by the Supreme Court in light of the SARA amendments.
PRPs are made aware early on that EPA may require their assistance in compiling information on their contribution to a hazardous waste site. Often, the first notice that a company has of EPA's interest in a hazardous waste site is receipt of a “Section 104(e) letter” from EPA, requiring the company to furnish EPA with information on the company's hazardous waste and disposal practices, along with its ability to perform a cleanup.
The CERCLA provisions which provide generally for the EPA's mandate to protect the public health and welfare and the safety of workers engaged in cleanup activities arguably confer the right to exclude other than response authorities. However, a PRP lawyer may seek to challenge EPA's control with traditional litigation tools which have had considerable success in securing access to cleanup sites.
Even before litigation commences, a PRP may make use of the discovery provisions available to all civil litigants.
Federal Rule of Civil Procedure 27 provides, in part:
(a) Before Action.
(1) Petition. A person who desires to perpetuate testimony regarding any matter that may be cognizable in any court of the United States may file a verified petition in the United States District Court in the district of the residence of any expected adverse party.
(3)
Order and Examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order ... [providing for the taking of depositions] ... and the court may make orders of the character provided for by Rules 34 and 35.
Federal Rule of Civil Procedure 34(a), in relevant part, empowers the district court:
to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b).
A Rule 27(a) petition may also seek the depositions of EPA, Army Corps of Engineers and/or remedial contractor representatives who are familiar with the execution of the Remedial Investigation Feasibility Study (RI/FS), which is required by CERCLA before any remedial work is performed and before formulation of the remedial design. A subpoena duces tecum can secure access to critical documents that pertain to the RI/FS and the design conception.
The only known decision which addresses PRPs' access to a hazardous waste site does not analyze the Rule 27 procedure. In City of Philadelphia v. Stepan Chemical Co., the PRPs sought access to a CERCLA site under remediation by the City of Philadelphia after the City brought suit to recover its cleanup costs. The PRPs utilized a traditional discovery request to enter upon the site and, after the City's refusal, filed a motion to compel discovery pursuant to Federal Rule of Civil Procedure 37. The City argued that PRP access would pose dangers to the PRPs' representatives and interfere with remediation. Nonetheless, the Court ordered the City to permit immediate access by the PRPs' representatives for the purposes of:
taking samples from test wells, drums, containers and other materials on the site; observing the conduct of excavation and clean-up operations on the site, and photographing the site....
The court further ordered the City to permit the PRPs to:
inspect, copy or otherwise utilize all information obtained during clean-up and excavation of the site to date, including but not limited to all photographs taken, all drums or other containers obtained from the site, all samples taken from the site and all results of tests taken on such samples.
In Northeast Landfill (discussed supra), in which the EPA proposed that the PRPs observe the remediation of a Pennsylvania landfill from a distant tower, EPA had not yet filed suit when the PRPs filed a discovery motion relying on Rule 27. After a hearing, EPA and the petitioning PRPs entered into an agreement resolving the access issue, which the court approved. The agreement provided a detailed scheme of PRP representatives' access to different areas of the hazardous waste site, including:
(1) PRP representatives' initial use of the remote observation deck to observe remedial activities;
(2) closer inspection of remedial activities only after concluding that remote observation is unsatisfactory;
(3) 48 hours prior notice to EPA in the event that closer observation is desired with shorter notice in extraordinary circumstances;
(4) limitation on the number and identity of PRP representatives who can enter into particular cleanup areas;
(5) PRP representatives' compliance with applicable health and safety regulations;
(6) PRP representatives' accompaniment by an escort and a health and safety technician to be supplied by the remedial contractor;
(7) PRP representatives' submission to all instructions given by the remedial contractors' employees;
(8) PRP representatives' limited access to an on-site sampling laboratory and execution of a confidentiality agreement;
(9) PRP representatives' restricted communications with remedial contractors' employees;
(10) PRP representatives' provision of all field observation notes and evaluative reports to EPA;
(11) the PRP committee's reimbursement of EPA for the costs of access, including health and safety technician services, rental and use of equipment and decontamination facilities and the remedial contractor's laboratory briefing; and
(12) the PRPs' execution of a release for any harm that befalls PRP representatives during site inspection, other than harm arising from intentional, reckless or gross tortious conduct on the part of the EPA or its contractor.
Pursuant to Federal Rule of Civil Procedure 41(a), the parties moved for voluntary dismissal of the action, but the court retained jurisdiction to oversee the enforcement of theagreement.
Nothing in the Northeast Landfill consent agreement guarantees uninhibited access to a remedial waste site, nor does it permit EPA to so tightly circumscribe PRPs' access as to make it meaningless. The court evidently found the agreement to be a reasonable compromise between EPA's and the public's interests in a speedy cleanup and the PRPs' interest in access to evidence critical to their defense.
Lawyers representing PRPs and the Government may find such compromises increasingly necessary to resolve disputes before a remedial action gets under way. The NCP, which prescribes general requirements for cleaning up Superfund sites, was recently amended to provide for greater reliance on “aggressive use of treatment technologies.” The new NCP also favors maximal destruction of toxic wastes and immobilization or deconcentration of contaminants. Finally, the new NCP encourages public participation in the remedial process to a greater degree than ever before, which may place greater pressure on the EPA to favor extensive and expensive remedies that placate public concern over lingering contaminants. Nothing in the revised NCP, however, so much as mentions PRPs' monitoring access to remedial sites. Indeed, EPA's response to public comment on the proposed revised NCP affirms that EPA considers PRPs' opportunity to perform cleanups or, should they choose not to perform the cleanups and/or to participate in development of the administrative record, to be sufficient.
In light of the overwhelming task this nation faces in restoring its natural resources to a healthful state, EPA and PRPs have every interest in cooperating to accomplish the goal of remediating hazardous waste sites with a minimum of litigation. The Northeast Landfill suit (full-blown litigation over PRPs' right to observe a remediation for which the Government has demanded the PRPs pay) does not serve as a shining model of a short path to this goal. EPA should either promulgate rules facilitating PRP monitoring access or at least issue more definite guidance to its Regions to reduce the likelihood of EPA's imposition of arbitrary restrictions on PRP access. EPA has little need for arbitrary limits on PRPs' preparation of their defense in an area of the law already so heavily weighted in the government's favor. Indeed, EPA might benefit from allowing PRPs to monitor cleanup contractors' work as a check on remedial expenses which, to date, have been difficult to control.
First, the United States Environmental Protection Agency (EPA), which oversees cleanups under CERCLA, and is under a statutory direction to select remedies that are “cost effective”, has been criticised by federal watchdog agencies for dramatic accounting failures and for inability to control cleanup cost overruns. Defendants who hope to minimize their exposure in EPA cost recovery actions will want to present to the finder of fact a detailed picture of the exorbitance of the EPA's remedy and the imprecision of its accounting procedures.
Second, courts have not been sympathetic to PRP defendants attempting to demonstrate inconsistency with the National Contingency Plan (NCP) by challenging EPA's remedy or cost accounting procedures at trial without having specific facts and figures to support their attack. Courts have been particularly unsympathetic to PRPs who have failed to perform discovery on these issues.
Third, PRPs have no ability to challenge EPA's remedial design or particular expenditures prior to the inception of a cost-recovery action. The federal courts have consistently held that CERCLA does not permit pre-enforcement review of response actions, even before Congress codified this bar in the 1986 amendments to CERCLA.
Fourth, CERCLA holds a PRP liable for a wide variety of costs including: all costs of removal or remedial action incurred by the United States, a state, or an Indian tribe not inconsistent with the NCP; any other necessary costs of response incurred by any other person consistent with the NCP; damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction or loss; the costs of performing any health assessment or health effects study pursuant to CERCLA section 9604(i); and interest on all amounts recoverable under CERCLA. Prior to completion of a response action, the Government may obtain a declaratory judgment establishing its right to recover future costs of cleanup. In March 1990, EPA estimated the average cost of remediating a hazardous waste site under CERCLA, excluding oversight and management costs, to be approximately $27.8 million. Last year, EPA concluded over $1 billion in settlements under CERCLA.
Fifth, defenses to a CERCLA cost recovery action are few and difficult to sustain. A PRP may avoid liability under CERCLA only if it can show by a preponderance of the evidence that the release or threat of release of a hazardous substance and resulting damage was caused solely by: an act of God; an act of war; an act or omission of a third party other than the PRP's employee, agent or contractor. The PRP must also show that he exercised due care with regard to the hazardous substance and took precautions against the third party's foreseeable acts and omissions and foreseeable consequences of such acts and omissions.
Sixth, CERCLA has been interpreted to impose strictliability. Even the selection of a responsible waste hauler does not bring the generator PRP within the third party defense. Also, liability is joint and several unless the PRP can establish that the injury caused by its contribution of a hazardous waste to a Superfund site is divisible or otherwise subject to apportionment.
One way to monitor the Government's expenditure of funds is to serve EPA with discovery requesting the detailed accounting records EPA is required to maintain throughout the cleanup process under CERCLA. This method, however, has built-in problems due to EPA's record of poor bookkeeping. Moreover, the paper record may not necessarily reveal inefficiencies in the contractor's performance of the remediation, or the extent to which the typical remedial tasks, such as soil sampling, were performed with excessive zeal and at excessive cost.
Contractor zealousness is a major source of concern for PRPs. EPA's agreement with the remedial contractor may compensate the contractor per unit of waste removed. The contractor's compensation and the total cost of the cleanup could rise drastically depending on the manner of sampling and removal of waste. For instance, a pattern and practice of removing a uniform volume of soil surrounding every item of debris may be unnecessary depending upon the location and topography of the waste site. The wastefulness of removing this volume of soil, or of a myriad of other contractor functions, may not be apparent from a review of EPA records. Typically, the PRP will want his expert or an expert retained by a committee of PRPs to oversee the contractor's work as a firsthand means of documenting inefficiencies and unnecessary work.
The limited procedural and substantive rights of PRPs to monitor the contractor remedial actions is another source of concern. The huge cost associated with CERCLA cleanup creates opportunity for waste and necessitates close monitoring by PRPs. EPA's internal procedures encourage PRP participation in development of an administrative record (submission of comments and relevant information), but EPA Regions have the discretion to limit PRPs' access to cleanup sites, validated data and draft reports based on “safety and other relevant considerations.”
The EPA exercised this discretion in one recent instance relating to a Pennsylvania landfill. The agency erected a small open-air observation platform fifty to a hundred feet above the base of its contractor's remedial operations which could safely accommodate only two or three observers. It supplied the PRPs' attorneys and their experts with binoculars to observe the contractor's activities, six hundred to a thousand feet away.
When the PRP committee protested these restrictions, they were advised that more proximate supervision of the contractor's work would interfere with the progress of the remediation. The PRP committee responded with a lawsuit against EPA to compel more meaningful access, which the federal district court was prepared to grant when EPA settled the matter by stipulating to a degree of proximate PRP oversight. In light of the number of hazardous waste sites and the frequency of cost recovery actions, it is surprising that no reported cases discuss the procedural tools that PRPs may use to gain access to the site of a remediation they may be forced to finance.
While no provision of CERCLA speaks to the issue of PRP access to a waste site, CERCLA and the 1986 SARA amendments arguably provide EPA with abundant authority to enter upon and secure a hazardous waste site. Section 104(a)(1) of CERCLA provides that:
[T]he President is authorized to act, consistent with the National Contingency Plan, to remove or arrange for the removal of, and provide for remedial action relating to such hazardous substance, pollutant, or contaminant at any time (including its removal from any contaminated natural resource), or take any other response measure consistent with the National Contingency Plan which the President deems necessary to protect the public health or welfare or the environment.
Section 104(b)(1) provides that the President:
may undertake such investigations, monitoring, surveys, testing, and other information gathering as he may deem necessary or appropriate to identify the existence and extent of the release or threat thereof, the source and nature of the hazardous substances, pollutants or contaminants involved.... In addition, the President may undertake such planning, legal, fiscal, economic, engineering, architectural, and other studies or investigations as he may deem necessary or appropriate to plan and direct response actions, to recover the costs thereof, and to enforce the provisions of this chapter.
These provisions would be of little avail without legislation establishing the EPA's right of access to a hazardous waste site to investigate and determine the existence of hazardous substances which have been released or which threaten a release. Therefore, Congress amended Section 104(e) of CERCLA to establish the EPA's right of access to a hazardous waste site to inspect records and take samples upon the Government's request. While the statute permits the EPA access to a hazardous waste site, it provides no mechanism to accomplish entry. One lower court concluded that an ex parte administrative warrant proceeding is the proper vehicle to secure access, only to be reversed by the court of appeals, the opinion of which was vacated by the Supreme Court in light of the SARA amendments.
PRPs are made aware early on that EPA may require their assistance in compiling information on their contribution to a hazardous waste site. Often, the first notice that a company has of EPA's interest in a hazardous waste site is receipt of a “Section 104(e) letter” from EPA, requiring the company to furnish EPA with information on the company's hazardous waste and disposal practices, along with its ability to perform a cleanup.
The CERCLA provisions which provide generally for the EPA's mandate to protect the public health and welfare and the safety of workers engaged in cleanup activities arguably confer the right to exclude other than response authorities. However, a PRP lawyer may seek to challenge EPA's control with traditional litigation tools which have had considerable success in securing access to cleanup sites.
Even before litigation commences, a PRP may make use of the discovery provisions available to all civil litigants.
Federal Rule of Civil Procedure 27 provides, in part:
(a) Before Action.
(1) Petition. A person who desires to perpetuate testimony regarding any matter that may be cognizable in any court of the United States may file a verified petition in the United States District Court in the district of the residence of any expected adverse party.
(3)
Order and Examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order ... [providing for the taking of depositions] ... and the court may make orders of the character provided for by Rules 34 and 35.
Federal Rule of Civil Procedure 34(a), in relevant part, empowers the district court:
to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b).
A Rule 27(a) petition may also seek the depositions of EPA, Army Corps of Engineers and/or remedial contractor representatives who are familiar with the execution of the Remedial Investigation Feasibility Study (RI/FS), which is required by CERCLA before any remedial work is performed and before formulation of the remedial design. A subpoena duces tecum can secure access to critical documents that pertain to the RI/FS and the design conception.
The only known decision which addresses PRPs' access to a hazardous waste site does not analyze the Rule 27 procedure. In City of Philadelphia v. Stepan Chemical Co., the PRPs sought access to a CERCLA site under remediation by the City of Philadelphia after the City brought suit to recover its cleanup costs. The PRPs utilized a traditional discovery request to enter upon the site and, after the City's refusal, filed a motion to compel discovery pursuant to Federal Rule of Civil Procedure 37. The City argued that PRP access would pose dangers to the PRPs' representatives and interfere with remediation. Nonetheless, the Court ordered the City to permit immediate access by the PRPs' representatives for the purposes of:
taking samples from test wells, drums, containers and other materials on the site; observing the conduct of excavation and clean-up operations on the site, and photographing the site....
The court further ordered the City to permit the PRPs to:
inspect, copy or otherwise utilize all information obtained during clean-up and excavation of the site to date, including but not limited to all photographs taken, all drums or other containers obtained from the site, all samples taken from the site and all results of tests taken on such samples.
In Northeast Landfill (discussed supra), in which the EPA proposed that the PRPs observe the remediation of a Pennsylvania landfill from a distant tower, EPA had not yet filed suit when the PRPs filed a discovery motion relying on Rule 27. After a hearing, EPA and the petitioning PRPs entered into an agreement resolving the access issue, which the court approved. The agreement provided a detailed scheme of PRP representatives' access to different areas of the hazardous waste site, including:
(1) PRP representatives' initial use of the remote observation deck to observe remedial activities;
(2) closer inspection of remedial activities only after concluding that remote observation is unsatisfactory;
(3) 48 hours prior notice to EPA in the event that closer observation is desired with shorter notice in extraordinary circumstances;
(4) limitation on the number and identity of PRP representatives who can enter into particular cleanup areas;
(5) PRP representatives' compliance with applicable health and safety regulations;
(6) PRP representatives' accompaniment by an escort and a health and safety technician to be supplied by the remedial contractor;
(7) PRP representatives' submission to all instructions given by the remedial contractors' employees;
(8) PRP representatives' limited access to an on-site sampling laboratory and execution of a confidentiality agreement;
(9) PRP representatives' restricted communications with remedial contractors' employees;
(10) PRP representatives' provision of all field observation notes and evaluative reports to EPA;
(11) the PRP committee's reimbursement of EPA for the costs of access, including health and safety technician services, rental and use of equipment and decontamination facilities and the remedial contractor's laboratory briefing; and
(12) the PRPs' execution of a release for any harm that befalls PRP representatives during site inspection, other than harm arising from intentional, reckless or gross tortious conduct on the part of the EPA or its contractor.
Pursuant to Federal Rule of Civil Procedure 41(a), the parties moved for voluntary dismissal of the action, but the court retained jurisdiction to oversee the enforcement of theagreement.
Nothing in the Northeast Landfill consent agreement guarantees uninhibited access to a remedial waste site, nor does it permit EPA to so tightly circumscribe PRPs' access as to make it meaningless. The court evidently found the agreement to be a reasonable compromise between EPA's and the public's interests in a speedy cleanup and the PRPs' interest in access to evidence critical to their defense.
Lawyers representing PRPs and the Government may find such compromises increasingly necessary to resolve disputes before a remedial action gets under way. The NCP, which prescribes general requirements for cleaning up Superfund sites, was recently amended to provide for greater reliance on “aggressive use of treatment technologies.” The new NCP also favors maximal destruction of toxic wastes and immobilization or deconcentration of contaminants. Finally, the new NCP encourages public participation in the remedial process to a greater degree than ever before, which may place greater pressure on the EPA to favor extensive and expensive remedies that placate public concern over lingering contaminants. Nothing in the revised NCP, however, so much as mentions PRPs' monitoring access to remedial sites. Indeed, EPA's response to public comment on the proposed revised NCP affirms that EPA considers PRPs' opportunity to perform cleanups or, should they choose not to perform the cleanups and/or to participate in development of the administrative record, to be sufficient.
In light of the overwhelming task this nation faces in restoring its natural resources to a healthful state, EPA and PRPs have every interest in cooperating to accomplish the goal of remediating hazardous waste sites with a minimum of litigation. The Northeast Landfill suit (full-blown litigation over PRPs' right to observe a remediation for which the Government has demanded the PRPs pay) does not serve as a shining model of a short path to this goal. EPA should either promulgate rules facilitating PRP monitoring access or at least issue more definite guidance to its Regions to reduce the likelihood of EPA's imposition of arbitrary restrictions on PRP access. EPA has little need for arbitrary limits on PRPs' preparation of their defense in an area of the law already so heavily weighted in the government's favor. Indeed, EPA might benefit from allowing PRPs to monitor cleanup contractors' work as a check on remedial expenses which, to date, have been difficult to control.
