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Effective Public and Private Partnership Allows for Expedited Cleanup and Redevelopment of Former Defense Site

Summary

    

A Midwestern city was trying to expeditiously redevelop an approximately 3,000 acre site by implementing a new urbanism concept focused on mixed residential, commercial, civic and educational site use. In the 1940’s, the U.S. Army had operated a large ammunition facility on this site. As a result of historic onsite disposal activities, portions of the site showed some low-level contamination, and a fifty acre site parcel owned by the City was perceived by the public to be more heavily contaminated. EPA assumed oversight responsibility for the cleanup of this parcel and notified the City, the Army and our client, a large manufacturer, of their potential liability for the site cleanup. The City indicated that without the cleanup of this fifty acre parcel, the redevelopment of the entire property could not proceed. As a result, the building activities and the home show planned for this area later during the year were at risk.

It became clear that the cleanup of this parcel would be challenging due to the environmental regulators’ initial view that site cleanup would require off-site disposal of large quantities of contaminated soils. Off-site disposal was estimated to cost more than $20 million. To complicate the situation, some community members did not trust the site cleanup process. Further, the Army was only willing to minimally contribute to the site cleanup costs because it believed that it had only very minor cleanup liability, if any. The Army also refused to sign an administrative cleanup agreement with EPA, the City, and our client because they were concerned about EPA’s authority to enter into certain administrative agreements. Lastly, the Army indicated that only minimal government funds were available for site cleanup.

To support the City’s aggressive redevelopment schedule, Spencer Fane’s legal team developed a strategy to expedite site cleanup. Spencer Fane created a productive partnership with the City by reaching an early site cleanup cost allocation agreement. After removing any potential disagreements and concerns regarding cost allocation between the City and Spencer Fane’s client, the City, the client and Spencer Fane’s legal team, worked on reaching an agreement with the City on a cost-effective and protective site cleanup and reuse of the site as park land. The proposed site cleanup and site reuse plan was then also agreed to by the Army and then selected by EPA after review by the community.

In the meantime, Spencer Fane obtained access to government records to gather evidence to prove the Army’s liability for site cleanup. Further, Spencer Fane’s legal team was able to work effectively with both staff and managers from different governmental agencies in an effort to persuade the Army to sign the administrative cleanup agreement with EPA, the City, and Spencer Fane’s client. As a result of Spencer Fane’s efforts and the efforts of our client’s consultant, the cleanup costs, initially estimated to be more than $20 million decreased to approximately $8 million. While coming up with a lower cost strategy was a relief for all parties involved, we were also pleased to hear that the remedy selected by EPA as initially proposed by Spencer Fane’s client was accepted by the community members.

Spencer Fane’s persistency and ability to work effectively with the regulators resulted in the Army agreeing to fund a large portion of the remedial costs under the administrative cleanup agreement proposed by Spencer Fane. Once we reached an agreement with the Army on cleanup cost allocation, the cleanup was conducted by Spencer Fane’s client in partnership with the City. The site cleanup is paid for by federal, state and local, as well as private funds, contributed by Spencer Fane’s client.

Spencer Fane’s attorneys significantly contributed to the success of this cleanup project. Our attorneys are strategic thinkers who focus on getting positive results by working effectively together as a team. We use our in-depth knowledge of state and federal cleanup requirements and policies to persuade regulators to accept pragmatic and results-based site cleanup remedies. If you would like more information about the firm’s Environmental Practice, please contact Baerbel E. Schiller