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