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Jones Walker Environmental Team Wins First Ever Reimbursement from EPA Superfund
August 20, 2001

Jones Walker's Environmental Team won a first ever CERCLA cost reimbursement from the EPA Superfund for client, Tiger Shipyards, Inc. (now, Louisiana Dock, LLC). EPA's Environmental Appeals Board (EAB) issued a preliminary ruling in April 2001 that Tiger Shipyards had met its burden of proof and was not responsible for dumping drums containing hazardous substances into the Mississippi River adjacent to its facility north of Baton Rouge. As a result, Tiger and EPA Region 6 reached a Consent Agreement on July 3, 2001, which was approved by the EAB on July 17, 2001, by which EPA Region 6 repaid Tiger for the full amount claimed in the reimbursement petition.

The matter arose as an EPA criminal investigation in which Tiger was accused of dumping dozens of drums containing hazardous waste into the river over a period of years. EPA's Region 6 civil CERCLA enforcement office then issued a CERCLA Unilateral Administrative Order to Tiger requiring a search and retrieval operation to recover the suspected drums from the river bottom. Tiger complied with the EPA order at a cost of approximately $1.4 million, and then sought reimbursement from the Superfund, contending that it was not responsible for any of the 35 drums it had recovered during the operation. Tiger maintained that any drums located in the retrieval area were placed there by its predecessor at that location or by unknown third parties. On behalf of Tiger, Jones Walker prevailed in proving Tiger was not responsible for any illegal disposal of drums.

On behalf of Tiger, Jones Walker also prevailed on the U. S. Attorney's office to decline to prosecute Tiger criminally regarding the drum disposal allegations.

Additionally, Jones Walker prevailed, on behalf of Tiger, in a Freedom of Information Act appeal to U. S. District Court for documents which helped prove Tiger's claims before the EAB.

Jones Walker helped break new ground in CERCLA reimbursement matters. On motion by Jones Walker on behalf of Tiger, the EAB ordered the first-ever evidentiary hearing to take testimony and evidence on critical factual issues. A five-day evidentiary (trial-like) hearing was held before an EAB-appointed EPA hearing officer. The EPA hearing officer issued to the EAB a lengthy written recommendation, largely supporting Tiger and refusing a number of EPA allegations, but finding Tiger had not proven that four of the recovered drums could not have originated from Tiger's operations.

The EAB's April 2001 ruling exonerated Tiger completely, reversing the EPA hearing officer's recommendation that Tiger had not demonstrated that it was not responsible for the four contested drums. The EAB ruled that Tiger had met its burden of demonstrating that it was not responsible for any of the recovered drums. As a result, the EAB's decision entitled Tiger to recover its response costs against the EPA Superfund, which Tiger documented as amounting to more than $1.4 million. This was the first such ruling ever by the EAB against EPA and for an petitioner in a CERCLA Section 106(b) reimbursement matter. In re Tiger Shipyard Inc. Tiger Marine Site, Environmental Appeals Board Docket: CERCLA 106 (b), Petition Number 96-3. The matter was handled by partners Mike Chernekoff and Pauline Hardin; associate Greg Latham assisted with the evidentiary hearing.

The EAB's ruling can be found at:$FILE/tiger.pdf