Remedy decisions are almost always won or lost at the agency level. Once the ROD issues, a PRP’s chance of having the selected remedy overturned in court is slim to none – a point that was driven home in a recent decision in the Lower Fox River case.
There, the government had engaged in a decade-long remedy selection process which began as a $325 million PCB dredging project. When the estimated costs of that dredging program skyrocketed, the government voluntarily amended the ROD at the PRPs’ request to utilize capping as well as dredging. When the estimated costs of that capping and dredging remedy rose to almost three-quarters of a billion dollars, the PRPs petitioned the government to consider anew the remedy. Declining to amend the ROD a second time, the government issued an Explanation of Significant Differences which merely acknowledged the increase in projected remedy costs. The parties then cross-moved in the pending cost-recovery litigation for summary judgment as to the propriety of the remedy.
Viewing the dispute through the deferential standard that a remedy decision can only be overturned if it is arbitrary and capricious, the federal court found the PRPs had failed to carry their burden. The court rejected the argument that a mere increase in cost, even an increase of hundreds of millions of dollars, could ever require a ROD amendment without a basic change in the nature of the remedial action being implemented. The court also refused to find that disagreements about assumptions or factual errors were sufficient to support the conclusion that the remedy was arbitrary and capricious. In the end, the court pronounced that in the context of remedy selection “perfection is unattainable” and found that it was enough that the government had attempted in good faith to pick a reasonable remedy after weighing alternatives and considering the arguments from the public and the PRPs.
Plainly, anyone hoping to influence remedy selection should not be keeping his powder dry for judicial review.