FEDERAL ENVIRONMENTAL REMEDIATION CONTRACTUAL AND INSURANCE-BASED RISK ALLOCATION SCHEMES: ARE THEY GETTING THE JOB DONE?

摘要

In recent years, the government has increasingly pushed remediation contractors to insulate it from the risks involved in federal environmental cleanups. Contractual and insurance-based risk-shifting measures, ultimately taking shape in the government's PBC initiative, have played a crucial role in effecting such a "push." Contractors have fought back-primarily, by declining to undertake certain ill-defined remediation projects, using conservative assessment methodologies backed with higher bids, making greater demands for more thorough site characterizations/investigations, and even creating skeletal corporations with limited assets for high-risk cleanup projects. Unfortunately, this preoccupation, by both parties, with shifting risks has often resulted in an "us-against-them," attack/counter-attack mentality between the government and government contractors. Consequently, though both parties recognize that they need each other to be able to remediate sites, they often seem to forget that they share the same goals. To that end, contractor successes are government successes. Likewise, contractor failures are government failures. Accordingly, there is no government victory in finding flaws or shortcomings in contractor work. Rather, the true government victory lies in rewarding contractors for meeting and exceeding expectations. Such successful contractor outcomes equate to successful government, public health, and environment outcomes. Therefore, the government should do everything in its power to help contractors fulfill remediation goals while still preserving adequate incentives to ensure contractor accountability. Striking such a balance includes ensuring that the PBC approach, though highly encouraged, does not become a "presumptive" approach. Despite its numerous benefits and obvious risk-shifting appeal, PBC is inappropriate for many cleanup projects-particularly those for which such an approach would simply be too risky for contractors to undertake. Such projects generally include cleanups that are inadequately characterized, involve groundwater remediation with no discrete end points, and require long-term operations or monitoring. Therefore, the decision to use the PBC strategy should always be site specific and carefully calculated in light of what is known about site contamination and other conditions. Blindly applying PBC, without conducting such an analysis first, will likely set contractors up to fail-a result that, as previously discussed, benefits no one. Further, even if the decision is made to use PBC for a particular project, the government must stay involved in overseeing the remediation effort. Though reduced government oversight is promoted as one of PBC's main cost and time-saving benefits, the government cannot merely hire a contractor to perform the remediation, hand that contractor the project, walk away, and expect to get the results it desires. Therefore, "tailored" oversight is a better approach.