Environmental Remediation Contracting Summary of a Symposium (1994) / Chapter Skim
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CONTRACTING FOR ENVIRONMENTAL STUDIES: PITFALLS AND CAUTIONS -- CONSULTANT'S PERSPECTIVE
CONTRACTING FOR ENVIRONMENTAL STUDIES: PITFALLS AND CAUTIONS -- CONSULTANT'S PERSPECTIVE
Pages 20-28
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From page 20... ...
Cleanup firms are not responsible for the existence of waste at sites, yet the strict, joint and several liability standards of the federal Superfund law imposes liability on these firms for any association with the site. Firms can not "bet the company' and risk bankruptcy by being held responsible for the hazardous waste problems created by others.
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From page 21... ...
3 O O O HWAC believes that a reasonable risk sharing program between DOD and its environmental restoration firms is critical to the satisfactory completion of DOD's mission to restore its own hazardous waste sites. HWAC testified to this effect at the March 10, 1992 and the April 24, 1991 hearings of the Environmental Restoration Panel of the House Armed Services Committee .
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From page 22... ...
HWAC has long predicted that third-party damage suits against environmental restoration firms at Government-controlled sites would be an inevitable consequence of hazardous waste site cleanups. However, we predicted that such claims might not arise for many years after the work was performed, because many injuries alleged in such claims, like cancer and other biological harm, may not manifest themselves for decades (the so-called "long-tail" problem)
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From page 23... ...
The theories of recovery include trespass, nuisance, negligence and strict liability.6 · The residents in the area surrounding DOE's Fernald, Ohio plant sued DOE's management and operating (M&O) contractor for allowing the spread of wastes onto their properties, and obtained a settlement of $78 millions · A similar case against two DOE M&O contractors was filed in December 1991 by residents in the area of DOE's Mound plant near Dayton, Ohio.8 · The United States Court of Appeals for the Ninth Circuit has held that a site excavation and grading contractor who unknowingly disturbed hazardous wastes while grading for a planned housing subdivision was both an "operator" and a "transporter" under CERCLA.9 · The United States District Court for the Middle District of Georgia has held that the so-called Government Contractor defense does not extend to environmental restoration contractors.'° In addition, in considering whether the contractor was an agent of the government of purposes of a slightly different defense (the Government Agency defense)
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From page 24... ...
(d) CERCLA Section 119 CERCLA section 119~2 waives strict liability for cleanup firms under Federal (but not state)
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From page 25... ...
In particular, HWAC has highlighted the potential of the final guidelines to halt Superfund cleanups, in particular construction activities, and to inhibit use of innovative technologies in Superfund cleanups.
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From page 26... ...
(g) Private Sector Indemnification Private parties contracting for environmental restoration services typically are legally and financially responsible themselves for the contaminated site involved because they meet the Superfund lawns definition of "owner" and "operator." Prudent cleanup firms take care to work with clients that are likely to be able to meet those financial commitments in the future, rather than going out of business and leaving the cleanup firm as a prime target defendant for future third-party claims.
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From page 27... ...
1991~. More detailed information about the practices of private firms in performing hazardous waste cleanups can be obtained by reviewing the testimony of individual firms provided at the March 10, 1992 hearing of the Environmental Restoration panel of the House Armed Services Committee on the liabilities facing firms involved in environmental restoration of DOD bases and facilities.
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From page 28... ...
The recent acceleration of DOD hazardous waste site cleanups mandates a speedy resolution of the liability dilemma facing environmental contractors to bet the entire assets of their firm every time they agree to participate in the restoration of a DOD hazardous waste site. Not only does such a policy reduce the number of qualified firms willing to participate in these restoration programs, but it increases costs to DOD (through the factoring of risk into contract price)
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