Now What? Key Assumptions Underlying Centredale Manor Remedy Found Arbitrary and Capricious

Dealing a blow to the government, Rhode Island District Court Chief Judge William E. Smith, in the second phase of the litigation over the Centredale Manor Superfund Site, found certain assumptions underlying the Environmental Protection Agency's (EPA) remedy to be arbitrary and capricious. (The decision in Emhart Industries, Inc. v. New England Container Co. is dated August 17, 2017. The United States filed a motion for reconsideration on October 4, 2017. As of the date of submission of this paper, the motion had not been fully briefed or decided.) Emhart Industries had challenged the selected remedy, estimated by the EPA to cost about $104 million, after Emhart was found jointly and severally liable in Phase 1 of the proceedings. In its 108-page Phase 2 decision, the court left it to the EPA as to how to address the identified deficiencies. The government, in its motion for reconsideration, emphatically stated that it does not intend to take any further administrative deliberation or process on the remedy. Notwithstanding this apparent standoff, and the uncertainty that remains over the nature and cost of the remedy, Phase 3 of the litigation, involving Emhart’s and the United States’ claims against other potentially responsible parties, will commence shortly.