Findley Adhesives, Inc.

Plain-English summary

Findley Adhesives sent manufacturing waste to the Reno Barrel Recycling Site in Nevada and was named in EPA Region IX cleanup orders addressing hazardous substances at the site. Findley sought reimbursement of response costs under CERCLA section 106(b). The Environmental Appeals Board held that the petition was timely, but found significant noncompliance with the orders, including missed cleanup deadlines, incomplete work within the required time, and extended periods without required site security. Because compliance with the order is a prerequisite to reimbursement, the Board denied the petition without deciding Findley's underlying liability arguments.

Decision snapshot

• Cited authorities: CERCLA §§ 104, 106, and 107; 42 U.S.C. §§ 9604, 9606, and 9607; 40 C.F.R. §§ 261.21 and 302.4.
• Outcome: The reimbursement petition was denied because Findley did not comply with the EPA cleanup orders.
• Key point: A party seeking CERCLA reimbursement must first comply with the cleanup order, even if it disputes liability for the response costs.

Full text (EPA EAB public release)

710 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
IN RE FINDLEY ADHESIVES, INC.
CERCLA §106(b) Petition No. 94-10
FINAL DECISION
Decided February 10, 1995
Syllabus

Findley Adhesives, Inc. has petitioned pursuant to CERCLA § 106(b) for reimbursement
of the response costs it incurred pursuant to orders issued by EPA Region IX on March 17,
1989, and February 14, 1991, that required Findley to participate in the cleanup of hazardous
substances at the Reno Barrel Recycling Site in Cold Springs, Nevada.

Held: The petition is denied because Findley did not comply with the cleanup orders
and therefore has not met a statutory prerequisite for reimbursement.

Before Environmental Appeals Judges Nancy B. Firestone,
Ronald L. McCallum, and Edward E. Reich.

Opinion of the Board by Judge Reich; Judge McCallum

filed a concurring opinion, post p. 14:

U.S. EPA Region IX issued an order on March 17, 1989, under
Section 106(a) of the Comprehensive Environmental Response, Com-
pensation, and Liability Act (“CERCLA”), requiring 23 potentially re-
sponsible parties (“PRPs”) to abate a threat of harm to the public
health or welfare or the environment caused by deteriorating drums
containing hazardous substances at the Reno Barrel Recycling Site in
Cold Springs, Nevada.’ The orders named the petitioner, Findley Adhe-
sives, Inc. (“Findley”), as a PRP. Findley, a manufacturer of adhesives
used in food packaging, had sent drums containing wastes from its
manufacturing operations to the site for disposal. On February 14,
1991, Region IX issued an amended order after the PRPs failed to
comply fully with the March 1989 order,

‘CERCLA § 106(a), 42 U.S.C, § 9606(a), authorizes the President to issue orders “necessary to
protect public health and welfare and the environment” when “an actual or threatened release of a
hazardous substance from a facility” poses “an imminent and substantial endangerment to the public
health or welfare or the environment." The President has delegated the authority o issue such orders
to EPA. Sec Executive Order No, 12580 (Jan, 23, 1987), 52 Fed, Reg. 2923 (Jan. 29, 1987).
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FINDLEY ADHESIVES, INC. 7
Findley has petitioned, pursuant to Section 106(b)(2)(A) of CERCLA,
42 US.C. § 9606(b(2)(A), for reimbursement of $102,369.74, plus in-
terest, for response costs it incurred pursuant to both orders.’ As dis-
cussed below, Findley’s petition is denied because Findley did not
comply with the Agency's cleanup orders’ and therefore did not satisfy
a statutory prerequisite for obtaining reimbursement.
J. BACKGROUND
A. Statutory Background
CERCLA was enacted “to accomplish the dual purpose of ensuring
the prompt cleanup of hazardous waste sites and imposing the costs of
such cleanups on responsible parties.” Dico, Inc. v. Diamond, 35 F.3d
348 (8th Cir, 1994). The statute requires responsible parties either to
conduct, or contribute to the cost of, cleanup at sites where the release
or potential release of a hazardous substance' threatens public health
or welfare or the environment. The statute establishes two procedures
for response actions. The Federal government may respond to a re-
lease or threatened release and then seek reimbursement from PRPs
pursuant to CERCLA §§ 104 and 107, 42 U.S.C. §§ 9604 and 9607. Alter-
natively, where there is an immediate and substantial threat of harm to
the public health or welfare or the environment, the Federal govern
ment may order PRPs to respond to the threat pursuant to CERCLA §
106(a), 42 U.S.C. § 9606(a).*

Petitions for reimbursement from the Hazardous Substance
Superfund for reasonable response costs incurred pursuant to an Agency
order are authorized by CERCLA § 106(b)(2(A), 42 U.S.C.

2Findley filed a Pettion for Reimbursement on August 8, 1991, secking $81,832 and a Supple-
ental Petition for Reimbursement on September 19, 1991, seeking an additional $26,870 (totalling
$108,702). It subsequently reduced the amount it requests to $102,369.74. See Letter from Findley to
Region IX, November 11, 1991

As a recipient of the Agency’s cleanup orders, Findley was responsible for performing all of
the response actions required by those orders. We recognize that Findley joined with other PRPs in
arranging for the carying out ofthese obligations and our references to “Findley’s” non-compliance
in this decision apply equally to all the PRPs subject to the orders.

“The term “hazardous substance” includes any substance identified as a hazardous substance
under CERCLA § 101(14) and any other substance identified as a hazardous substance by Agency
regulation, See CERCLA § 102, 42 US.C. §9602. list of substances EPA has designated as hazardous
substances appears at 40 CER. § 3024

S CERCLA § 106 does not identify specific classes of persons who may be subject to administra-
tive orders issued pursuant f0 its authority, It is uncontested, however, that any person who ar-

ranges for disposal of a hazardous substance and is otherwise liable under CERCLA § 107 can be
issued an order under CERCLA § 106. In this case, Region IX identified Findley as a PRP based on the
Region's determination that Findley had sent hazardous waste to the RBR site.
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712 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

§ 9606(b)(2)(A), which provides that:

Any person who receives and complies with the terms
of any order issued under subsection (a) of this section
may, within 60 days after completion of the required
action, petition the President for reimbursement from
the Fund for the reasonable costs of such action, plus
interest.

CERCLA § 106(b)(2)(C), 42 U.S.C. § 9606(b)(2)(C) states that:
[Tlo obtain reimbursement, a petitioner shall establish.
by a preponderance of the evidence that it is not liable
for response costs under section {107(a)] and that costs
for which it seeks reimbursement are reasonable in light
of the action required by the relevant order.

‘The statute also allows a petitioner who is liable for response
costs to recover those costs if it can demonstrate on the administrative
record that the President's decision in selecting the response action
was arbitrary and capricious or otherwise not in accordance with law
42 U.S.C. § 106(b(2)(D), 42 U.S.C. § 9606(b)(2)(D).

The authority to make determinations on petitions for reimburse-
ment has been delegated by the President to the Administrator of EPA,
and re-delegated to the Environmental Appeals Board.*

B. Factual Background

‘The Reno Barrel Recycling (“RBR”) Site was initially used solely to
receive and resell empty drums. By the late 1980's, it had also begun
to accept drums containing hazardous substances for disposal.” An
EPA Region IX Site Inspection Team inspected the site on October 20,
1988, and found more than 3300 55-gallon. drums “in various states of
deterioration,” of which approximately 2500 contained hazardous sub-
stances.* The drums were precariously stacked and were exposed to
the elements. Some were in “direct contact with wet soil.”” The EPA

team sampled 20 representative drums and conducted field hazard

© See Executive Order No. 12580 (Jan. 23, 1987), 52 Fed. Reg. 2923 Jan. 29, 1987), and EPA

Delegation of Authority 14-27 (Petitions for Reimbursement"), June 199%,

7 See Final Report, FPA Technical Assistance Team, November 8, 1991

• See Administrative Order 89-06, March 17, 1989, at 4

"id.

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FINDLEY ADHESIVES, INC. ge
categorization testing of their contents. According to Region IX, test
results indicated the presence of hazardous substances, including “ac-
ids, oxidizers, cyanides, and ignitable liquids.” Order at 4. In addition,
container labeling revealed the presence of the hazardous substance
perchloroethylene. id.

EPA Region IX issued Administrative Order 89-06 (“the Order”) on
March 17, 1989, effective March 27, 1989, requiring 23 potentially re-
sponsible parties, including Findley," to clean up the site. The Order
required the PRPs to:

@ Provide 24 hour a day security service
for the duration of the removal, starting
within two days of the Order's effective
date [i.e., by March 29, 1989];

Q) Submit a work plan and schedule for
completing the required work within
nine days after the Order's effective date
lie. by April 3, 1989);

@) Complete the required work “to the sat-
isfaction of EPA” within 127 days after
the Order's effective date [i.e., by Au-
gust 1, 1989].

See Order at 8 and Appendix 1 (Site Remediation Scope of Work).
Findley denied liability for the cleanup,’ but entered into an agree-
ment with the other PRPs to comply with the Order. Since the time
frame within which the response action was completed is critical to
the disposition of Findley’s petition, a brief chronology follows.

The PRPs did not complete the cleanup by August 1, 1989, the
deadline set in the Region’s Order. In response to their July 31, 1989

°° Final Report, EPA Technical Assistance Team, Nov. 8, 1991, at 1.

• An inventory of the cans and drums at the site identified over 30 of them as having been
  received from Findley. The Region maintains that the contents of one of Findley's drums was tested
  and found to meet RCRA ignitability criteria. See Letter from Region IX to the Office of Waste Programs
  Enforcement (OWPE), Feb. 26, 1992, at 6. CERCLA § 101(14) defines “hazardous substance” to include
  “any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of
  IRCRAI***.” RCRA regulations at 40 C.ER. § 261.21 identify the characteristic of ignitabilty

"Findley filed a Statement of No Legal Liability with Region IX on March 31, 1989. The crux of
Findley’s argument was that the Region did not properly test for ignitability and that the waste it sent
to the RBR site was not hazardous. See infra n.19 and accompanying text.

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714 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
request for an extension of the deadline, Region IX established a re-
vised schedule for removal activities. See Letter from Region IX to PRP
Group, August 17, 1989. The new schedule required the PRPs to re-
move all containers and visibly contaminated soil from the site by
September 15, 1989, and to implement a soil sampling plan by Septem-
ber 22, 1989. It required “site completion” by October 13, 1989, if no
additional soil removal were required after analysis of the samples,
and by November 10, 1989, if additional soil removal were required.
The PRPs did not meet the revised deadlines, and hazardous sub-
stances remained at the site throughout 1990. In January 1991, all re-
sponse activities at the site ceased." Region IX and its Technical Assis-
tance Team conducted a site inspection on January 22, 1991, and found
approximately 227 drums containing hazardous substances. Letter from
EPA Region IX to Findley, Feb. 14, 1991. No security guard was present
and access to the site was unrestricted. Moreover, the site run-off con-
tainment system had been breached, providing a route whereby haz-
ardous substances could migrate to a nearby lake. /d. The Region no-
tified all PRPs that releases of hazardous substances were continuing
to occur and that “[t]he site continues to pose a threat to public health
or welfare or the environment.” Jd.
The Region determined that “the removal action compelled by
[the March 17 Order] never was completed.” It issued an amended
order on February 14, 1991 (‘the Amended Order”), effective February
18, 1991, “specifyling] the tasks required to complete the removal ac-
tion directed by the original order” and new deadlines for performing
them."* The Amended Order emphasizes that:
Each of the tasks described in this Amended Order is
within the scope of the removal action compelled by
the original Order. Therefore, until the work required
by the Amended Order is completed, each Respondent
remains in violation of the original Order.

Amended Order at 3.

° See Letter from Region IX to OWPE, February 26, 1992, at 3; Final Report, EPA Technical
Assistance Team, November 8, 1991

“Amended Order, February 14, 1991

The Amended Order requires “each Respondent” [1.€,, each PRP] to provide security service
by February 19, 1991; remove all containerized hazardous substances and all visibly contaminated
soil within 45 days of the effective date of the Order, implement a post cleanup sampling plan
within 60 days of the effective date of the Order; and remove residual contamination within 90 days.
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FINDLEY ADHESIVES, INC. 715,
Cleanup activities resumed during the early months of 1991. On
April 18, 1991, the PRPs collected soil samples for analysis. On April
23, 1991, they removed the last containers of hazardous waste." On
july 19, 1991, Findley received a Site Remediation Summary and Soil
Analysis Report from the PRPs’ contractor stating that post-remediation
soil testing had “demonstrated no significant chemical contamination
of the ground surface thus completing the remediation process.”” Report
at 2.
C. The Petition
Findley filed a petition for reimbursement on August 13, 1991,
which it supplemented on September 11, 1991, with an additional
claim for reimbursement for attorneys’ fees as response costs."* Findley
does not deny that it sent waste to the RBR Site. Findley argues instead
that it is not liable for response costs because the waste it sent to the
site was not hazardous. Petition for Reimbursement at 2. It asserts that
it “may” have sent “kettle flush” to the site, which is the waste that is
generated when its kettles are purged with mineral oil to prevent
remnants of adhesive from one run from mixing with adhesive from a
subsequent run. See Statement of No Legal Liability at 4. Findley main-
tains that kettle flush is not a hazardous waste. Findley challenges the
Region's claim that Findley sent ignitable materials to the site, arguing
that the Region did not test the contents of Findley's drums for
ignitability using procedures that meet the requirements of RCRA regu-
lations at 40 C.RR. § 261.21.”

Region IX responded to the petition on February 26, 1992.* The
Region contends that the EAB should either not consider Findley’s

‘Letter from Region IX to OWPE, February 26, 1992, Appendix 2

"The Report is dated July 15, 1991, and date stamped “July 19, 1991.” We take the latter date to
be the date Findley received it

© See supra n.2. Findley had actually filed an earlier petition for reimbursement on April 11,
1991, which contained the statement that ‘(dhe bulk of the cleanup has now been completed.” Id.
OWPE denied Findley’s petition without prejudice, stating that Findley has not completed the re-
quired response action and therefore it “falled] to meet the threshold statutory requirement for
filing a petition." Letter from Bruce Diamond, Director, OWPE, to Godfrey & Kahn, S.C., May 10,
1991.

» See Findley Statement of No Legal Liability at 3. We note that Findley raised two additional
issues in its Statement of No Legal Liability which it does not raise in its petition. It claimed that the
March 17, 1989 order is “fatally defective” because “it fails to apportion the clean up responsibility
among the named respondents.” Id. at 7. It also claimed that Findley was prejudiced because the
Region failed to give it written notice of its potential liability before issuing that order. Id

Letter from Region IX to OWPE, February 26, 1992

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716 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

petition, or should reject it, for three reasons. First, the Region con-
tends that the petition was untimely, not having been filed within sixty
days of the “completion of the required action,” as § 106(b) requires.
‘The Region asserts that the required action was completed on April 23,
1991, the date “the transportation and disposal of the containerized
waste was completed,” and therefore Findley was required to file its
petition within 60 days of that date, by June 23, 1991.

Second, the Region maintains that Findley did not “comply with
the terms of the order,” also a statutory requirement for reimburse-
ment. According to the Region, “site remediation was sporadic, and
was characterized by financial disputes between the responsible par-
ties and their contractors, work stoppages, missed deadlines, procras-
tination and delays.” Letter from Region IX to OWPE, February 26,
1992, at 4. Moreover, “there were extensive periods during the removal
action when no security was provided at the site.” Id. at 3.

Finally, the Region argues that Findley is not entitled to reim-
bursement because it has not established by a preponderance of the
evidence that it is not liable for response costs. The Region maintains
that Findley arranged for the disposal of hazardous waste, and thus is
liable under CERCLA § 107(a)(3), since Findley’s waste exhibits the
characteristic of ignitability, based on a laboratory test that was con-
ducted in accordance with RCRA regulations which Findley has not
rebutted. Id. at 6.

The Board issued a Preliminary Decision on November 30, 1994.
In accordance with a briefing schedule established by the Board, the
Region and Findley both filed comments on the Preliminary Decision
on February 6, 1995. After due consideration of all comments received,
the Board issues this Final Decision. All comments not resulting in
changes to the Preliminary Decision are hereby rejected as irrelevant,
immaterial, or incorrect.

IL. DISCUSSION

For the reasons set forth below, we are denying Findley’s April 13,
1989 petition. Contrary to Region IX’s contention, we find that the
petition was timely filed. However, we agree with the Region that
Findley did not comply with the Agency’s cleanup orders, and there-
fore is not eligible for reimbursement.
A. Timeliness of Petition

The Region's orders required Findley to remove hazardous sub-
stances from the site; collect soil samples; perform a “residual con-
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FINDLEY ADHESIVES, INC. n7
tamination appraisal” to determine whether the soil samples met EPA-
approved cleanup criteria; and remediate any contamination that ex-
ceeded the criteria, See Site Remediation Scope of Work appended to
the March 17, 1989 Order (Appendix 1). The PRPs developed a work
plan! to implement the soil sampling and appraisal requirements of
the Order which enumerated the following four activities:

—Removal of grossly contaminated soil
—Post cleanup confirmation sampling
—Review analytical data

Further excavation (if required)

As of April 23, 1991, the last containers of hazardous waste and
the grossly contaminated soil had been removed from the site. On that
date, the PRPs’ contractor collected soil samples for analysis. On July
19, 1991, Findley received notification that post-cleanup soil samples
had been analyzed and found to be uncontaminated, and therefore
that no further soil removal would be necessary. Therefore, as of July
19, 1991, no further work was required of Findley. Findley’s petition
was filed within sixty days of July 19, 1991, and is, therefore, timely.

Region IX contends that Findley completed the action required
under the Order on April 23, 1991, the date on which the post-cleanup
confirmation sampling was conducted. Therefore, it argues that Findley
was foreclosed from filing a reimbursement petition after June 23, 1991.

We disagree. The Region's orders did not merely require Findley
to collect soil samples but also required it to analyze the samples for
contamination. The Scope of Work appended to the Order specifically
required the PRPs to perform a “Residual Contamination Appraisal”
and to remediate any contamination identified by the appraisal. See Reno
Barrel Recycling Site Remediation Scope of Work, Appendix 1 to Order.
The PRPs’ sampling plan identifies both “post clean-up confirmation sam-
pling” and “review analytical data” as required tasks.** While the analysis
was proceeding and future remediation was still possible, the PRPs clearly
continued to be subject to the obligations of the Order.

2 See Sampling QA/QC Work Plan, April 3, 1991, at 6, Appendix 4 to Technical Assistance

‘Team Final Report, November 8, 1991
2 The Amended Order also refers to the analysis of soil samples, providing that “alll sampling
and analysis” shall be consistent with OSWER Directive 0360.4-01
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718 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
As of April 23, 1991, the samples had merely been collected and
had not even reached the laboratory. Since Findley had not “appraised”
the samples for contamination as of April 23, 1991, it had not com-
pleted the required action and the time period for filing a reimburse-
ment petition had not started to run. Only upon completion of the
review of the analytical data, with no further excavation being re-
quired, was Findley’s cleanup obligation completed.
B. Compliance with the Order
CERCLA § 106(b) expressly limits the right of reimbursement to
persons who receive and comply with an Agency cleanup order.” In
fact, the addition of CERCLA § 106(b) was clearly intended as a specific
means of encouraging compliance with an order. As stated in the House
Committee on Energy and Commerce report on the legislation, CERCLA
§ 106(b) was intended to:
[Floster compliance with orders and promote expedi-
tious cleanup, by allowing potentially responsible par-
ties who agree to undertake cleanup to preserve their
arguments concerning liability and the appropriateness
of response action.”
‘Therefore, since compliance with an order is a prerequisite for peti-
tioning for reimbursement,” and since, as discussed below, the record
2s: TThe determination that a petitioner has ‘receive(d] and compliefd) with an Order is a nec-
essary precursor to the EPA's consideration of a petitioner's lability and the scope of the response
action.” Employers Insurance of Wausau v. Clinton, 848 F. Supp. 1359, 1365.
2SHLR, Rep. No. 99-253(D at 83, See also Bethlebem Stee! Corp. v. Bush, 918 F.2d 1323, 1324 7th
ir, 1990) (in enacting § 106(b), Congress intended to encourage PRPs "to conduct a cleanup expe-
ditiously and postpone litigation about responsibility to a later time ***.")
Sin his concurring opinion, Judge McCallum states that in instances where a petitioner's non-
compliance is “trivial, amounting to no more than a technical violation,” he presumes the statute
Should not be read as barring recovery under an otherwise meritorious petition, Judge McCallum
Sates further that “the Agency will also have to keep open the issue of whether substantial but less
than punctilious completion of a cleanup project” nevertheless justifies considering 2 cost recovery
petition on its merits. We agsee with Judge McCallum that the phrase “complies with the terms of ty
Prder” raises interpretive issues relative to substantial, but less than complete, compliance. However,
Since the facts of this case do not support a finding of substantial compliance, and since the issue of
whether substantial compliance satisfies the statutory criterion was not briefed by either party, we find
ho reason or basis for addressing this issue, even as to allegedly “trivial” or “technical” violations.
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FINDLEY ADHESIVES, INC. 719
clearly establishes that Findley did not comply with the Region’s cleanup orders,
its petition is not entitled to consideration on the merits,

‘The three essential components of the Region's cleanup orders were (1)
removing containers of hazardous waste from the site; (2)assuring that the soil was
free of contamination after container removal had occurred; and (3) securing the
site during the period when hazardous substances were still present. The orders
imposed strict time frames for performance of each of these tasks. However,
Findley did not comply with any of them. First, the Order initially required the
disposal of all containerized waste by July 31, 1989, a deadline the Region ex-
tended to September 15, 1989. As noted supra, the Agency imposed a further
deadline of April 4, 1991, in its Amended Order but made it clear that the new
deadline was not intended to excuse the PRPs’ violation of the earlier one. Dis-
posal of the containerized waste was not completed until April 23, 1991, more than
eighteen months afier the September 15, 1989 deadline and several weeks after
the April 4, 1991 deadline established by the Amended Order.

Second, the Order required the PRPs to excavate and dispose of visibly
contaminated soil at the site by July 24, 1989, a deadline that the Region also
extended to September 15, 1989. The Amended Order also imposed a deadline of
April 4, 1991, for compliance with this requirement, again without excusing the
PRPs’ noncompliance with the earlier order. However, the PRPs did not remove
visible contamination and perform soil sampling until April 23, 1991.

Third, the Order required the PRPs to maintain 24 houra day seaurity service
at the site until all of the hazardous waste had been removed. The requirements
for security at the site, and the Region's rationale for those requirements, were
clearly spelled out in the administrative orders. The Order required “a licensed
guard with appropriate communications equipment,” “daily sign in/sign out logs’
and documentation of any unauthorized access to the Site. Amended Order at 7.
It characterized the site as an “attractive nuisance” and expressed concem that
drums could be opened or spilled by vandals” unless access were restricted. Order
at 4, Nevertheless, according to the Region, the site was without any security guard
“for at least ten months” when hazardous waste remained at the site. Letter from
Region IX to OWPE, February 26, 1992, at 4. Daily logs were submitted only for
the period of March 24, 1989, through July 2, 1989. Jd. at 3”

*Findley contends in its comments on the Preliminary Decision that it “satisfied the statutory
threshold requirements for obtaining reimbursement” for its eesponse costs because it “achieved
substantial compliance” with the cleanup orders. Comments at 26. It argues that “(lo the best of
Findley’s knowledge atthe time, the majority of these requirements had been met as of March 1990"
(emphasis added). Findley Comments on Preliminary Decision at 6. As noted in the previous foot-
note, we reject Findley’s contention that its actions constituted “substantial compliance.”

In its comments on the Preliminary Decision, Findley does not deny thatthe site was without
a security guard between April 30, 1990, and mid-February 1991, nor does it deny that daily logs

Continued
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720 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

Findley’s failure to remove hazardous waste and failure to
remediate soil contamination more than eighteen months after the
deadlines imposed by the Region's order constitutes failure to “com-
ply” with that Order. “Compliance, in part, requires that a petitioner
correctly perform the required action within the appropriate time
frame.”** Moreover, Findley’s failure to maintain the requisite security
at the site for extended time periods constitutes further noncompli-
ance of a significant nature. The Region correctly describes the lack of
site security as “a serious violation of the Administrative Order be-
cause of the public health hazard associated with the drums.” Letter
from Region IX to OWPE, February 26, 1992, at 4.

We are aware that circumstances may arise during the course ofa
cleanup that make it difficult or impossible for the PRPs to adhere
strictly to a prescribed work schedule or requirement. Under those
circumstances, it is incumbent upon a PRP to make a timely request for
an appropriate modification to the order so that it may remain in
compliance.” In this case, we note that an extension was sought and
received in 1989.”

The Board’s decision denying Findley’s petition is consistent with
the Agency’s denial of a petition for reimbursement filed by Employers
Insurance of Wausau," which was affirmed in Employers Insurance of

Wausau v. Clinton, 848 F. Supp. 1359 (N.D. Ill 1994). In that case,
OWPE held that Wausau was not eligible for reimbursement under §
106(b) because it had not removed all of the hazardous waste from the
‘were not provided except for the period from March 24 to July 2, 1989, It merely asserts that “secu-
sity was provided atthe site on a continuous basis from the inception of the work until approxi-
mately April 30, 1990." Findley Comments on Preliminary Decision at 7.

Letter from Bruce Diamond, Director, OWPE, to Frederick S. Mueller, Johnson and Bell, Lid,
denying reimbursement petition submitted by Employers Insurance of Wausau, Jan. 28, 1993.

Findley argues that “EPA repeatedly, both explicitly and implicitly indicated to the PRP Group
that it was not overly concerned with the group's occasional inability to adhere to the rigid schedule
Set fonh in the Section 106 Order.” Findley Comments on Preliminary Decision at 10. However,
Findley has not identified any EPA document in the administrative record which supports its con
tention.

S0We note further that the Amended Order specifically provided a mechanism for seeking an
extension, based on a showing of sufficient cause (Amended Order, §8), and Findley did not seek
‘any extensions under this provision. While this would not have affected Findley’ ability to recover,
since its noncompliance dates from the September 15, 1989 deadline, Findley's failure to seek an
extension does illustrate its rather cavalier attitude toward its compliance obligations.

51 see Letter from Bruce Diamond, Director, OWPE, to Frederick 8. Mueller, Johnson and Bell,
Led, Jan. 28, 1993.

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FINDLEY ADHESIVES, INC. 721
site, and therefore had not “completed” the required action. However,
OWPE stated, as an additional ground for denying the petition, that Wausau:

(Dlid not comply with the Order because many of the

actions [required by the order] were incorrectly or par-

tially performed. Further, Wausau did not even perform

the actions it did within the allocated time-frame."?
The federal district court, in affirming OWPE’s decision, stated that
Wausau's failure to “finish its activities” at the site in a timely fashion
provides “support for the EPA’s conclusion” that Wausau failed to “com-
ply” with the cleanup order. 848 F. Supp. at 1368.

I. CONCLUSION:

For all the reasons discussed above, Findley’s petition is denied
because Findley has not “complield] with an order,” as required by
CERCLA § 106(b) as a prerequisite for reimbursement.”

Concurring Opinion by Judge McCallum:

I join in the decision of the Board.**I write simply to clarify that
while I regard Findley’s noncompliance with the Region's order under
Section 106(a) of CERCLA as sufficient reason to deny Findley’s peti-
tion, it is because the noncompliance in this instance is significant.
There may be instances where a petitioner's noncompliance is trivial,
amounting to no more than a technical violation of an order. In those
instances, I presume the statute should not be read as barring recovery
of eligible costs under an otherwise meritorious petition. Moreover,
the Agency will also have to keep open the issue of whether substan-
tial but less than punctilious completion of a cleanup project neverthe-
less justifies considering the merits of a cost recovery petition. That
also does not appear to be the case with Findley's noncompliance,
which, as just noted, is significant, not merely less than punctilious.

2d, at 36
Since the Board has determined that Findley did not comply with the orders at issue and is
therefore ineligible for reimbursement, we do not reach the merits of Findley’s petition.
By joining in the decision of the Board I naturally take no position on footnote 25 (comment-
ing on this concurrence), which represents the views of Judges Reich and Firestone exclusively.
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