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HomeMy WebLinkAboutMemoCITY OF MIAMI OFFICE OF THE CITY ATTORNEY MEMORANDUM TO: The Honorable Mayor and Members of the City Commission FROM: Julie O. Bru, City Attorney";, IAI DATE: June 29, 2009 RE: Proposed Resolution for City Commission Meeting — July 9, 2009 Authorizing the expenditure of attorney's fees and costs for outside counsel to represent the City of Miami regarding remedial actions and proceedings pertaining to Petroleum Products Corp. Superfund Site Matter ID No.: A-9900462 File No. 09-00747 The attached proposed Resolution seeks authorization to expend attorney's fees to engage outside counsel, Michael Goldstein, Esquire and Akerman Senterfitt, P.A., for the purposes of representing the City of Miami in response to enforcement action by the Environmental Protection Agency ("EPA") resulting from alleged violations at the Petroleum Products Corp. ("PPC") Superfund site which is listed on the EPA's National Priorities List, with funds allocated from Account No. 00001.980000.531010.0000.00000. This is a complex environmental case that has been pending since 2001. The Office of the City Attorney has monitored this matter while it was previously being handled by the firm of Greenberg Traurig. To ensure proper compliance by the City of the decree issued by the Environmental Protection Agency ("EPA") and anticipated future decrees, legal and technical expertise in this field should be retained. The recommendation of the City Attorney is that outside counsel be retained to represent the City of Miami in this matter. There are reasons to believe that the PPC Superfund site will be more active in 2009. By way of a brief history, the PPC site is located in Broward County, Florida, and occupies approximately 7 acres. It was operated from the late 1950's until approximately 1984 or 1985 as a used oil refinery and later as a fuel blending and processing facility. It was listed on the EPA's National Priorities List on July 22, 1987. The City of Miami was included as one of several potentially responsible parties for the cleanup because the City was found to have transported used oil to the site. The EPA broke down the site into three operable units ("OU") for cleanup. OU1 addresses free floating product in groundwater. OU2 addresses soils. OU3 addresses groundwater impacts. In 1990, a Record of Decision ("ROD" - which results in the selection of a remedy) was announced only for OUL The Cooperating Parties Group ("Group"), of which the City is a member, was formed and worked with the Settling Federal Agencies to respond to EPA's good faith offer to conduct the remedy for OUL Following entry of a Consent Decree in December 1991, the Group and the Settling Federal Agencies implemented the OU1 remedy. The Group continues to work with the The Honorable Mayor and Members of the City Commission June 29, 2009 Page 2 of 2 Florida Department of Environmental Protection ("FDEP") and the EPA to conduct the remedy through the Group's onsite contractor, Environmental Consulting Technology ("ECT"). The site is currently in the State's used oil reimbursement program called the Pre -Approval Program, which covers the bills for the remedial work. However, the Pre -Approval Program does not cover the Group's counsel's bills, project coordinator bills, certain of the bills of the onsite contractor, ECT, nor EPA's oversight costs. The Florida Department of Environmental Protection ("FDEP") has retained a firm under contract to evaluate the ongoing work and has required that consideration be given to enhancement of the remedial action system. As a result, a Remedial Alternatives Evaluation Report has been prepared and submitted to FDEP by ECT. FDEP is currently considering the information presented in the Report. EPA has not yet issued a ROD for OU2. Once EPA issues a ROD for OU2, Special Notice Letters will go out inviting the Group members and Settling Federal Agencies to enter into a Consent Decree to undertake OU2. The Group will continue to operate the remedy under the Pre -Approval Program and will also continue to look for opportunities to move EPA towards issuance of RODs for OU2 and OU3. We have been advised that at some point a final allocation will occur and the Group will true up the dollars for everyone. The plan has apparently been to true up everyone when EPA issues RODs for OU2 and OU3, and we go through the next Consent Decree negotiations for those operable units. It is estimated that the EPA has a past costs claim in the neighborhood of $5 million. When RODs are issued for OU2 and OU3, there will be a settling up with EPA on its recoverable past costs as well. Outside environmental counsel will clearly be required to protect the City's interests regarding these actions. c: Pedro G. Hernandez, City Manager Elvi Gallestegui, Agenda Coordinator Warren Bittner, Deputy City Attorney Henry J. Hunnefeld, Assistant City Attorney Doc. No.: 179575.doc