Solutia Inc. (Board decision, February 13, 2002)

Plain-English summary

Solutia Inc. sought reimbursement for costs incurred while complying with an EPA Region II administrative order requiring cleanup at the Morgan Materials, Inc. Superfund Site in Buffalo, New York. The Board had previously found that Solutia was not liable for response costs under CERCLA section 107(a) and granted its reimbursement petition. In this final order, the Board approved $439,891.40 in reasonable cleanup costs and $62,686.71 in accrued interest, authorizing payment of $502,578.11. Additional interest was authorized at $45.98 per day from the order date until payment.

Decision snapshot

• Cited authorities: 42 U.S.C. §§ 9606(a), 9606(b)(2)(A), and 9607(a); 40 C.F.R. § 1.25(e)(1).
• Outcome: Reimbursement of $502,578.11 was authorized, with additional interest accruing at $45.98 per day until payment.
• Key point: The Board approved documented cleanup costs and accrued interest after EPA Region II did not contest the reasonableness of the submission.

Full text (EPA EAB public release)

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

______
)
In re: )
)
Solutia Inc.
) CERCLA 106(b) Petition No. 00-1
)
Order No. II-CERCLA-98-0213 )
______)

FINAL ORDER
DETERMINING REIMBURSABLE COSTS AND AUTHORIZING PAYMENT

On November 6, 2001, the Environmental Appeals Board

(“Board”) issued its Final Decision and Order Granting

Reimbursement in the above-referenced matter. See In re Solutia

Inc., CERCLA § 106(b) Pet. No. 00-1, slip op. (EAB, Nov. 6,

2001), 10 E.A.D. ___ (“Final Decision”). The Final Decision

found that Solutia Inc. was not liable for response costs under

section 107(a) of the Comprehensive Emergency Response,

Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9607(a),

and granted Solutia Inc.’s petition for reimbursement, with

respect to compliance with CERCLA section 106(a) Administrative

Order No. II-CERCLA-98-0213 (“UAO”) issued by the United States

Environmental Protection Agency Region II (the “Region”) to

Solutia Inc. (“Petitioner”) on September 28, 1998. The UAO 2 ordered Petitioner to remove and dispose of certain hazardous

substances from the Morgan Materials, Inc. Superfund Site in

Buffalo, New York.

The Board’s Final Decision set a schedule for Petitioner to

file documentation of reasonable costs incurred in complying with

the UAO and for the Region to file a response. Id. at 33-34.

That schedule was extended twice to allow settlement discussions

to proceed. See Order Granting Joint Request for Schedule Change

with Respect to Cost Filings (EAB, Dec. 4, 2001); Order Granting

Joint Request for Schedule Change with Respect to Cost Filings

(EAB, Dec. 19, 2001).

On January 18, 2002, Petitioner timely filed its cost

documentation with the Board. See Petitioner’s Brief in Support

of the Reasonableness of Costs Incurred in Implementing UAO

Issued to Solutia Inc. by Region II (Jan. 18, 2001) (“Costs

Filing”). Petitioner’s Cost Filing documents cleanup costs of

$439,891.40 and requests payment of this sum plus interest

accruing daily since the dates of expenditure. On February 11,

2002, the Region filed its response to Solutia’s Costs Filing. 3

See Region II’s Response to Petitioner Solutia Inc.’s Cost Filing

(Feb. 11, 2002) (“Response”). The Region indicates in its

Response that it “has reviewed the Petitioner’s January 18, 2002

cost submission and does not contest the reasonableness of the

costs submitted and documented therein.” Response at 2.

The Board has considered Petitioner’s Costs Filing and the

Region’s Response thereto. Based on those filings, the Board

concludes that Petitioner has incurred reasonable costs in

complying with the Region’s UAO and is entitled to reimbursement

in the amount of $439,891.40, plus $62,686.71 in interest that

has accrued up to and including the date of this Order.1

Accordingly, the Board hereby authorizes payment in the amount of

$502,578.11. The Board further authorizes the payment of such

additional interest as may accrue between the date of this Order

and payment of the foregoing amount. Such additional interest

shall accrue daily, at a rate of $45.98 per day, from the date of

this Order until the payment is made.

1
Pursuant to 42 U.S.C. § 9606(b)(2)(A), interest accrues daily from the date of expenditure. In this case, pursuant to the rate of return that obtains under 42 U.S.C. § 9606(b)(2)(A), interest is currently accruing at a rate of $45.98 per day. 4 Petitioner may obtain reimbursement by presenting this Order

to:

Mel Visnick
U.S. Environmental Protection Agency
Washington Financial Management Center
1200 Pennsylvania Avenue, N.W. (MC2734R) Washington, D.C. 20460

So ordered.

Dated: 02/13/02
ENVIRONMENTAL APPEALS BOARD2

By: /s/
Edward E. Reich
Environmental Appeals Judge

2
The three-member panel deciding this matter is comprised of Environmental Appeals Judges Scott C. Fulton, Ronald L. McCallum, and Edward E. Reich. See 40 C.F.R. § 1.25(e)(1). CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Final Order Determining Reimbursable Costs and Authorizing Payment in the matter of Solutia Inc., CERCLA 106(b) Petition No. 00-1, were sent to the following persons in the manner indicated:

By Certified Mail,
Return Receipt Requested:

Eric Berry, Esq.
Husch & Eppenberger LLC
100 North Broadway
Suite 1300
St. Louis, Missouri 63102

By Pouch:

Brian E. Carr
Assistant Regional Counsel
Office of Regional Counsel
U.S. Environmental Protection Agency, Region II 290 Broadway
New York City, New York 10007
(212) 637-3104 (fax)

Marianne L. Horinko
Assistant Administrator
Office of Solid Waste and
Emergency Response (MC 5101)
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460-0001

Mel Visnick
U.S. Environmental Protection Agency
Washington Financial Management Center
1200 Pennsylvania Avenue, N.W. (MC 2734R) Washington, DC 20460

Dated: 02/13/02
/s/
Annette Duncan
Secretary