The Valley Chemical Site, Shell Oil Company (Board decision, August 26, 1998)

Plain-English summary

Shell Oil Company petitioned for reimbursement of approximately $1.25 million in costs it said it incurred while carrying out a removal action under an EPA unilateral administrative order at the Valley Chemical Site in Mississippi. Shell and EPA negotiated a settlement that resolved the petition without further litigation or adjudication of the pending factual or legal issues. The Environmental Appeals Board approved and incorporated the Consent Agreement and authorized payment of $625,000 to Shell from the Superfund. The order also includes mutual covenants and conditions governing the settlement.

Decision snapshot

• Cited authorities: 42 U.S.C. § 9606(b); 42 U.S.C. § 9606(b)(2).
• Outcome: The Consent Agreement was approved and a $625,000 reimbursement payment was authorized.
• Key point: The EAB may approve a CERCLA section 106(b) reimbursement settlement and authorize payment from the Superfund.

Full text (EPA EAB public release)

BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C.

In the Matter of:
The Valley Chemical Site 1 CERCLA 5 106(b) Petition No. 97-5 Shell Oil Company

ORDER APPROVING CONSENT AGREEMENT
AND AUTHORIZING PAYMENT

Pursuant to 5 106(b) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, ("CERCLA") , 42 U.S.C. § 9606(b), on July 23, 1997, petitioner, Shell Oil Company, filed a petition for reimbursement of approximately $1.25 million for costs allegedly incurred in complying with a unilateral administrative order issued by U.S. EPA Region IV on March 1, 1994. Since that 'time, the parties have sought and obtained extensions of time from the Board for submission of a substantive response from the Region in order to initiate and pursue settlement negotiations.
On July 31, 1998, Shell Oil and the Region filed a joint motion asking this Board to approve a consent agreement evidencing a settlement reached by the parties in this matter, and to issue an order directing the Hazardous Substances Superfund ("Fund") to pay Shell Oil $625,000 pursuant to the consent agreement.l Joint Motion for Approval of COnSent

'The authority to make determinations on petitions for (continued...)
 2

Agreement ("Joint Motion"). As grounds for the motion, the

parties represent that during the course of the lengthy
negotiations they:
considered numerous factors including but not limited to the litigation risks for both sides, including the risk associated with potential appeals, and the desire of both parties to minimize the cost and delay of continued litigation. The proposed Consent Agreement is the result of good faith, arms length negotiations between EPA and Petitioner, and reflects the parties' careful -and informed assessment of the relative merits of each other's claims while taking into consideration the costs and risks associated with litigating complex issues. Compromise is the essence of settlement. This Consent Agreement embodies significant compromise on both sides.

Joint Motion at 2 (citation omitted). In addition, the motion

states that "EPA's Office of Enforcement and Compliance

Assurance, and its Office of General Counsel have worked closely

with the Region assessing the case and developing parameters for

this settlement. Both the Region and Headquarters believe the

proposed settlement is fair, reasonable and in the public

interest." Id. at 1.

Upon consideration, the Board grants the parties' joint

motion. We hereby approve the consent agreement in the above-

captioned matter and authorize a payment of $625,000 to Shell Oil

‘(. . . continued) reimbursement under CERCLA S 106 was delegated by the President of the United States to the Administrator of EPA in 1987, and re- delegated to the Environmental Appeals Board in June 1994. See Executive Order No. 12580 (Jan. 23, 1987), 52 Fed. Reg. 2923 (Jan. 29, 19871, and EPA Delegation of Authority No. 14-27 (June 1994). 3

from the Fund in accordance with the provisions of the Consent

Agreement, which is hereby incorporated into this order.

So Ordered.

ENVIRONMENTAL APPEALS BOARD

By:
Ronald L. McCallum
Environmental Appeals Judge
 I.
-. .

BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, 9;qJ ,-,. l 1 ,‘.. :;: 58

In the Matter of:

THE VALLEY CHEMICAL SITE
>
Greenville, Mississippi
>
>
SHELL OIL COMPANY
1 CERCLA $106(b) Petition No. 97-5
)
Petitioner
>
)
>

CONSENT AGREEMENT

I. Jurisdiction

1. This Consent Agreement (“Agreement”) is entered into by the United States Enviromnental Protection Agency (“EPA”, “ Respondent”), and Shell Oil Company (“Shell”, “Petitioner”), for the matter relating to the Petition for Reimbursement (“Petition”) filed before the Environmental Appeals Board (“EAB”) pursuant to Section 106(b)(2) of the Comprehensive Environmental Response, Compensation, and Liability Act of I980 (“CERCLA”), as amended, 42 U.S.C. Section 9606(b)(2).

2. EPA and- Shell agree that the EAB shall retain jurisdiction over the matter until such time as the parties fulfill all obligations under this Agreement.

II. Parties

3. This Ageement is entered into by EPA and Shell. Shell is the Petitioner in this matter and EPA is the Respondent. Shell consents to and will not contest EPA’s jurisdiction to enter into this Agreement or to implement or enforce its terms.

111. Backwound

4. This Agreement concerns the Valley Chemical Site (“Site”) located in Greenville, Washington County, Mississippi.

5. On March I, 1994, in response to the release or threatened release of hazardous substances at or from the Site, EPA issued a Unilateral Administrative Order (“UAO”), docket number 94-41-C, pursuant to Section 106(a) of CERCLA , 42 U.S.C. 9 9606(a), to Shell and ; five other companies ordering performance of a removal action at the Site. The UAO became effective on April 1, 1994.

6. Petitioner, and two other companies which were recipients of the UAO, undertook a removal action at the Site. The removal action was completed by the performing parties on July 15, 1997, when EPA approved the Final Closure Report for the PRP Removal Action at the Site, thereby concluding the activities required by the UAO.

,7. On July 23, 1997, Petitioner submitted to the EAB its petition for reimbursement of approximately $1.2 million incurred performing the removal action required by the UAO.

IV. Determination

8. EPA and Petitioner desire to resolve the Petition without further litigation and without the adjucation or submission of any issue of fact or law currently pending before the EAB.

V. Parties Bound

9. This Agreement shall be binding only upon EPA and the Petitioner. Each signatory to this Agreement certifies that he or she is authorized to enter into the terms and conditions of this Agreement and to bind legally the party represented by him or her.

VI. Definitions

10. Unless otherwise expressly provided herein, terms used in this Agreement which are defined in CERCLA, or in regulations promulgated under CERCLA, shall have the meaning assigned to them in CERCLA or in such regulations. Whenever terms listed below are used in this Agreement, the following definitions shall apply:
a.. “EAB” shall mean the Environmental Appeals Board, and any successor instrumentality to which authority is delegated to determine petitions for reimbursement pursuant to CERCLA Section 106(b)(2), 42 U.S.C. 5 9606(b)(Z);

b. “Response Costs” shall mean all costs, including oversight costs, accrued or paid in connection with the removal action at the Valley Chemical Site ordered by the CERCLA $106 UAO, docket number 94-41-C, which was issued March I, 1994, and became effective April 1, 1994.

C. “Site” shall mean the Valley Chemical Site, encompassing approximately 9.96 acres of real property located on North Raceway Road in Greenville, Washington County, Mississippi.
 VII. Reimbursement Of Response Costs

11. Within 90 days after EPA Region 4 receives an Order fiorn the EAB approving the Agreement and authorizing payment, EPA shall disburse funds to the Petitioner in the amount of $625,000, in full settlement of the Petition. If not timely paid, interest will begin to accrue thereafter at the rate provided by 42 U.S.C. 8 9606(b)(2)(A).

.12. Payment to Shell shall be made through an electronic fimd transfer based upon information provided to EPA by Shell.

VIII. Covenant Not To Sue BY EPA

13. EPA covenants not to sue or take administrative action against Petitioner for reimbursement of Response Costs accrued in connection with the removal action at the Site ordered by the CERCLA 6 106(a) UAO, docket number 94-4 1 -C, which was issued March 1, 1994, and became effective April 1, 1994.

IX. Covenant Not To Sue BY Petitioners

14. Petitioner agrees not to assert any claims or causes of action against the United States, or its contractors or employees with respect to Response Costs or this Consent Agreement including, but not limited to:

a. any direct or indirect claims for reimbursement, with reference to the CERCLA 4 106 UAO docket number 94-41-C, from the EPA Hazardous Substance Superfund established by 26 U.S.C. 3 9607, based on Sections 106(b)(2), 107, 111, 112 or 113 ofCERCLA ,42 U.S.C. $5 9606(b)(2), 9607,96 11,96 12, or 9613, or any other provision of law;

b. any claim arising from any response actions that have been taken at the Site pursuant to the CERCLA 4 106 UAO docket number 94-41-C; and

C. any other claim against the United States pursuant to Sections 107 and 113 of CERCLA, 42 U.S.C. 08 9607 and 9613 relating to Response Costs.

X. Reservation Of Rights Bv EPA

15. Except as otherwise provided for in this Agreement, EPA reserves, and this Agreement is without prejudice to, all rights against Petitioner with respect to all matters, including but not limited to:

a. liability for costs incurred or to be incurred by the United States that are not within the definition of Response Costs;
b. criminal liability; and
 c. liability for damages for injury to, destruction of, or loss of natural resources, and for the costs of any natural resource damage assessments.

16. Nothing in this Agreement is intended to be, nor shall it be construed as a release, covenant not to sue, or compromise of any claim or cause of action, administrative or judicial, civil or criminal, past or future, in law or in equity, which the United States may have against any person, firm, corporation, or other entity not a signatory to this Agreement.

XI. Effect Of Consent Agreement

17. Nothing in this Agreement shall be construed to create any rights in, or grant any cause of action to, any person not a Party to this Agreement. EPA and Petitioner each reserve any and all rights-(including, but not limited to, any right to contribution), defenses, claims, demands, and causes of action which each Party may have with respect to any matter, transaction, or occurrence relating in any way to the Site against any person not a Party hereto.

(Signatures on next page)
The UNDERSIGNED SETTLING PARTY enters into this Consent Agreement in the matter of the Valley Chemical Removal Site, Greenville, Washington County, Mississippi.
CERCLA 106(b) Petition No. 97-5.

IT IS SO AGREED:

SHELL OIL COMPANY

JL 9 z-, /s98’
Date:

(Signatures continued on next page)
The UNDERSIGNED SETTLING PARTY enters into this Consent Agreement in the matter of the Valley Chemical Removal Site, Greenville, Washington County, Mississippi.
CERCLA 106(b) Petition No. 97-5.

IT IS SO AGREED:

U.S. ENVIRONMENTAL PROTECTION AGENCY

(Signatures continued on next page)
 CERTIFICATE OF SERVICE

I hereby certify that copies of the forgoing Order Approving Consent Agreement and Authorizing Payment in the matter of The Valley Chemical Site, Shell Oil Company, CERCLA $4 106(b) Petition No. 97-5, were sent to the following persons in the manner indicated:

By First Class Mail
Postage Prepaid:
Debra S. Benjamin
Associate Regional Counsel
U.S. EPA Region IV
Atlanta Federal Center
61 Forsyth St.
EAD-13th Floor
Atlanta, GA 30303

Phillip L. Conner
Ogletree, Deakins, Nash,
Smoak & Stewart, P.C.
300 N. Main St.
P.O. Box 2757
Greenville, SC 29602

Dated: A1 ,- - \

AUG 26 1998
AnnettWfi
, \

Secretary