Summary of Morgan-Lewis meeting on EPA’s regulation development for CERCLA 108(b) 

Date/time: 1/22/10, 12:00 pm – 1:45 pm, 

Location: Morgan-Lewis law offices at 1111 Pennsylvania Ave., Washington, DC 

Attendees: Jim Berlow, Ben Lesser, David Hockey, Michael Steinberg of Morgan Lewis, 

representatives of Waste Management, FMC, DuPont, Chevron, Freeport-McMoRan, GE, 

United Technologies. 

Berlow: (Sketches out the scope of the CERCLA 108b effort and general timeline for 

proposed rules publication.) 

Steinberg: If the agency under CERCLA developed its HRS and set the score level at 28.5, 

how does it make sense for the agency to now come in to say that it may require financial 

responsibility of sites that rank below that level of concern? 

Waste Management: Existing RCRA protections are arguably (and should be) protective; the 

Risk Assessment that was prepared to support them was, if anything, conservative. Why this 

now? 

Hockey/Berlow: Lots of discretion in the statute; room for flexibility. We are building a 

very good database to hold whatever data the group members contribute 

DuPont: A lot of private money is going into CERCLA settlements; DuPont fully funds all 

that it is engaged in—no federal funding is used.. 

Hockey: We would like to have any of that information to help us in developing our rule. 

Steinberg: Are federal agencies / POTWs covered? 

Berlow: No decisions have been made. 

GE/Steinberg: Suggest establishing a web site asking specific questions on which you want 

comments and functioning as a portal for submissions. 

DuPont: Please try to be clear and transparent so that individual facilities don’t have to 

have their own individual risk assessments. 

Waste Management: How can Best Management Practices (BMPs) be incentivized? A 

requirement that is equal for all and does not give credit for BMPs disincentivizes them. 

Steinberg: Just because one vessel fails, for example, how can you extrapolate to the idea 

that others will necessarily fail and therefore justify a prospective financial responsibility 

requirement? 
Hockey: We will run Monte Carlo analyses for every contingency. 

Berlow: It depends on whether we allow a Financial Test. 

Waste Management: Strongly hope you do use one. You could require a secure test—maybe an 

investment-grade security. 

GE: One problem we run into with states is their frank admission that they don’t have the 

resources to properly evaluate the financial test for adequacy. Consider establishing a Center of 

Excellence at EPA that could perform this task or transfer knowledge to states. 

Waste Management: Another problem with states is apparently arbitrary variations in policy 

with no rational explanations. 

Steinberg: Suggest investigating Licensed Site Professionals (as in MA) as 3rd party certifiers 

or approvers of effective financial assurance. This works well. 

Lesser: You might try brainstorming ways to apply the financial test in ways that won’t ride 

roughshod over concerns of, say, EPA’s enforcement office. Also, if you want BMPs 

incentivized, give us specific suggestions for which ones and how that might be done. 

The meeting adjourned.