Here is a fictional scenario. Let’s imagine that your company recently acquired a division of another company. Along with all the assets came a landfill with a less than stellar environmental history. In short order, your company receives a notice from the Environmental Protection Agency that the site is covered under the federal Superfund Act and is liable for remediation of the site’s hazardous condition.
Once the law department learns of the Superfund issue, activity begins by opening a matter in the matter management system (“MMS”). This should include assigning internal law department staff who will be responsible for working on the matter. The business partners in whose jurisdiction the Superfund site exists should also be assigned to the matter.
A brief description of the matter should be entered in narrative form. This description will be useful for communicating the details of the matter to others who may have a need to know.
Any documents received from the EPA should be attached to the matter. At a minimum, this should include the Preliminary Assessment/Site Inspection (PA/SI), which involves records reviews, interviews, visual inspections, and limited field sampling. The site’s Hazard Ranking System (HRS) score should also be recorded in the MMS to determine the CERCLA status of the site. The score will determine the type and level of remediation that will be required by the EPA.
Relevant dates (e.g., date first notified by the EPA of your company’s liability; date when the EPA designated the location as a Superfund site) should also be added to the matter. Similarly, dates in the future when tasks need to be completed should also be considered and entered into the MMS.
As cleanup activity progresses, there are three types of information that should be collected and entered into the law department’s MMS:
A narrative chronology of activity at the site that records progress;
Any documentation provided by the EPA, third parties or company representatives related to the cleanup;
Key dates as to when significant events occurred. The calendar function within the MMS should also be used to schedule future actions that need to be taken as part of the cleanup process.
Another useful tracking element that can be employed is to develop a checklist of tasks that are to be performed. This will help ensure compliance with established guidelines. As various tasks are completed, they should be so noted, along with the date of completion, along with any special comments that may be applicable.
As the cleanup at the site comes to a conclusion, there may be one or, more typically, several Remedial Action (RA) inspections to be performed and reports to be completed. The inspection results and related reports should all be entered in the MMS. I am including a link to a document prepared by the EPA that can be used as a general reference for activities related to closure of the Superfund site:
By entering information described above, law department and business partner personnel will have a central repository to access what happened and when, as well as what is scheduled to occur in the future. Also, the law department will be well positioned to promptly document and defend that appropriate actions took place according to established guidelines.
As always, this information is available to use as you see fit. Or, Orzo & Associates is available to assist your department in implementing any aspect of tracking environmental matters if you wish.