Office of Site Remediation Enforcement (2271 A) Washington, DC 20460 Summer 2005 EPA300-N-05-005 Issue #21 Environmental Protection Agency inside Highlights Centredale Manor Pioneer Smelting In the Spotlight Nease Chemical Performance-Based Contracting Enforcement News Employee Pleads Guilty Superfund News Syosset Landfill PCC Strategy In the Courts Adobe Lumber v. Taecker Syms v. Olin Tidbits ER3 Partners Calendar Glossary cleanup ^^^^_ CleanupNews is a quarterly newsletter highlighting hazardous waste cleanup cases, policies, settlements and technologies. EPA Places Superfund Lien, Hopes to Recover $27 Million in Costs EPA has placed liens on 554 acres of land at a former mine in Clear Lake, California in order to recu- perate $27 million for past cleanup costs. EPA's response ac- tions to-date include stabilizing waste piles, erosion control mea- sures, removal of contaminated soil, site investigations, and the emergency closure of some geo- thermal exploration wells. The Agency estimates that it may cost $40 million more to complete the remaining cleanup activi- ties. Liens are legal actions that can bar a property owner from sell- ing a property without the lien enactor's permission. The Com- prehensive Environmental Re- sponse, Compensation, and Li- ability Act (CERCLA) at 42 USC 9607(1) provides EPA with the authority to enact a lien against the title of the property upon which response actions have been taken. Liens are placed on remediation sites to recover cleanup costs already incurred by EPA and to ensure that poten- tially responsible parties do not profit from the increased value of property improvedby EPA through the cleanup process. The property is part of the former Sulphur Bank Mercury Liens help recover costs and ensure PRPs do not benefit from post-cleanup property value increases. Mine and is owned by Bradley Min- ing Company and Worthen Brad- ley Trust. Mining activities at the site began in 1865 and continued off and on until the site was aban- donedin 1975. Mercury ore was the primary product after the site was initially mined for sulfur. The re- maining waste piles contain heavy metals including mercury, arsenic, and antimony and are the source of mercury polluting the local ground and surface water. The site also includes an open pit mine known as the Herman Impoundment where acidic water con- taminated with heavy metals has ac- cumulated. The site has been on the National Priorities List since 1990. The impact of contamination from the mine on the local environ- ment has been documented prima- rily through the bioaccumulation of mercury found in plants, animals, and soils in the nearby Clear Lake ecosystem. The State of California has issued fishing advisories for Clear Lake due to the high mercury levels. The heavy metals contami- nating the site, including antimony and mercury, are toxic to people and the environment. For additional information, contact Larry Bradfish, EPA Region 9, bradfish. larrv@eDa.sov. § Printed on recycled paper ------- Settlements Will Help Clean Up Centredale Manor Restoration Two proposed settlements worth approximately $3.6 million will help clean up con- tamination at the Centredale Manor Restoration Project Site in North Providence, Rhode Island. The owners of the Centerdale Manor and Brook Vil- lage apartment buildings—which provide low-cost housing to the eld- erly—agreed to the settlement through separate consent decrees. Both proposed con- sent decrees are sub- ject to a 30-day public comment pe- riod. If the consent decrees are final- ized, the settlers will "cash out" their liability, meaning that EPA will re- lease the apartment complex owners of any further responsibility related to the existing contamination at the site. The settlements will be paid to EPA, the State of Rhode Island, and the De- partment of the Interior; a portion will also be placed in an escrow account. The settlement agreements should en- sure that the settlors remain finan- cially viable, thereby ensuring that low- cost housing will continue to be avail- View of the Centredale Manor Restoration Project looking North along the Woonasquatucket River. able for 223 elderly residents. From 1943 to 1971, Atlantic Chemi- cal Company (renamed Metro-Atlan- tic, Inc. in 1953) operated a woolens mill on the site. The New England Con- tainer Company ran incinerators on the site as part of its drum-reconditioning operation at different times from 1952 to 1971. In 1972, a fire burned almost all of the existing buildings. The Brook Village and Centerdale Manor apart- ments were constructed on the site in 1977 and 1983 respectively. Di- oxin contamination was identified in the Woonasquatucket River, which is adjacent to the site, in 1996, and the site was added to the National Pri- orities List on February 4, 2000. The Woonasquatucket River was designated an American Heritage river in 1998 and has been the focus of cleanup efforts for several contaminants in- cluding dioxin since 1996. To date, EPA has com- pleted several initial re- moval actions to limit expo- sure to the contaminants and reduce downstream migra- tion. These actions include construct- ing soil caps, reconstructing a dam, and fencing off contaminated areas. EPA continues to conduct its reme- dial investigation for the long-term cleanup of the site and seek assis- tance in cleaning up the site from other responsible parties. Foradditionalinformation, contact Eve Vaudo, EPARegion 1, vaudo.eve@epa.gov. Site Work Completed at Pioneer Smelting EPA has removed 24,000 tons of contaminated soil and de- bris from the Pioneer Smelt- ing site in Chatsworth, New Jersey. Although no groundwater contamina- tion was detected, concentrations of lead in the surface soil were between 2 cleanupnews 67 ppm and 18,200 ppm. Cleanup ac- tivities began in July 2003 and in- cluded the dismantling, decontamina- tion and disposal of several buildings and structures as well as the excava- tion and treatment of lead-contami- nated soil. An onsite pug-mill was usedto treat 24,000 tons of contami- nated material. 4,000 tons of waste were sent off-site to a regulated haz- ardous waste disposal facility. Cleanup efforts also included recy- cling 340 tons of scrap metal and re- moving 300 feet of asbestos contain - continued on page 7 ------- Innovative Cleanup Strategies Proposed for Nease Chemical EPA Region 5 is advising use of nanotechnology to clean up ground water contamination at the Nease Chemical Site in Columbiana County, Ohio. The plan involves using iron nanoparticles, which range in size from l/500th to 1/5,000th the width of a human hair. Because of their microscopic size, nanoparticles can reach contamination in small spaces more effectively than some traditional treatments. When the nanoparticles come into contact with ground water contaminants, oxidation occurs, pro- ducing harmless or less toxic by-prod- ucts. In addition to the ground water remedy, EPA is recommending "strip- ping/stabilization/solidification" or S/ S/S to address contamination in sev- eral former ponds. The process in- volves stripping chemicals and solidi- fying the soil using a cement-like sub- stance to prevent migration of remain- ing contaminants. The other ponds would be covered with plastic to pre- vent the spread of contaminants, and Iron nanoparticles are a less expensive, highly effective new treatment strategy. These microscopic particles come into contact with contaminants and produce harmless by-products. shallow groundwater would be pumped and treated. Comments on the rem- edies received during the public com- ment period, which endedin June, will be considered before the cleanup plan is finalized. From 1961 to 1973, Nease Chemical produced household cleaning agents. fire retardants, and pesticides at the site. Some of the products contained mirex, a chemical banned for use in the US in 1978 because of detrimental health effects. Mirex, volatile organic compounds, and other contaminants seeped into groundwater and soil from unlined ponds and leaking drums. In 1977, Ruetgers Organ- ics Corp. acquired the property. though the company never used the site. Ruetgers has been evaluating on-site contamina- tion through EPA and Ohio EPA guidance and assisted both agen- cies in selecting the site rem- edies. Nease Chemical has been on the National Priorities List since 1983. The proposed cleanup strategies are explained in a Region 5 fact sheet entitled "'Cutting-Edge' Techniques Proposed for Nease Cleanup" avail- able online at: http://www.epa.gov/ region5/sites/neasefs200506.pdf. For additional information, contact Mary Logan, Remedial Project Man- ager, (312) 886-4699. U.S. Army Uses PBC to Clean Up Hazardous Waste Sites By Janet Kim, U.S. Army Environmental Center s Technical Lead for PBC Implementation The U.S. Army is dedicated to cleaning up contaminated property from past practices by promoting the use of safe, effective. and efficient cleanup and procure- ment methods. To that end, the Army has turned to Performance-Based Contracting (PBC) to expedite por- tions of its remediation work. Under PBC guidelines, a contrac- tor must achieve identified cleanup objectives for a fixed price. PBC con- tractors must meet these objectives. which are detailed in the Performance Work Statement, as well as comply with existing Federal Facility Agree- ment schedules and commitments. Contractors have an incentive to work proficiently and complete remedial work on or ahead of schedule because shorter timeframes generally trans- late into increased corporate profits. Most often the work is awarded to continued on page 4 cleanupnews 3 ------- 0) o Employee Pleads Guilty to Mail Fraud and Making False Statement On May 31, 2005, Michael Klusaritz of Whitehall, Pennsylvania, pleaded guilty in district court to mail fraud and making false statements. Klusaritz could be sentenced to up to 30 years in prison, a $750,000 fine, three years supervised release, and a mandatory $300 special victim/wit- ness assessment. While an employee of Boyko's Petro- leum Services, Inc., Klusaritz falsified laboratory reports, forged signatures. and prepared false underground stor- age tank (LIST) closure reports. Be- tween October 2001 and October 2003, Boyko's billedits customers more than $110,000 for the false reports. Klusaritz had a previous conviction for falsifying environmental test re- sults. Army Uses PBC, continued from page 3 contractors at a price that is lower than the Army's planned cost-to- complete; as such, PBC allows the Army to increase the buying power of its annual cleanup bud- get, which in turn accelerates the overall cleanup program as cost avoidances can be reinvested to clean up sites at other in- stalla- tions. Regu- lators also benefit under PBC. For example, benefits to regulators include streamlined and consistent documentation produced by "A-team" contractors who have an incentive to finish the cleanup work rapidly and cor- rectly. Regulators also have the confidence of knowing that the Army maintains ultimate liabil- ity for the remediation. While PBC may be used in privatization projects, it is not a By using PBC, the Army has procured more than $400 million in environmental requirements and achieved a cost avoidance of approximately 20 percent while safely conducting cleanup. privatization effort. The Army uses these contracts on land that will be turned over to local authorities as well as land the Army will retain for its own use. The Army piloted the program at several installations in Fiscal Years 2000 and 2001. To date, almost 50 PBC contracts, covering projects in all 10 EPA regions, have been awarded for work at Base Realign- ment and Closure (BRAG) sites and ac- tive installations. By using PBC, the Army has procured more than $400 million in environmental requirements and achieved a cost avoidance of ap- proximately 20 percent while safely conducting cleanup. PBC provides advantages to the three main parties involved in con- tracted environmental remediation projects — the Department of Defense, regulators and contractors. Want to join us in conserving paper? It's fast and simple. lomoliani Go to the CleanupNews page at: ^^^ , enter your email address, and click "Submit." When new issue of CleanupNews comes out, you'll receive it in HTML—right to your desktop! Note: Signing up for electronic issues does not automatically cancel your hard copy subscription. Send hard copy subscription change requests to cleanup ------- Syosset Landfill Deleted from National Priorities List On April 28, 2005, EPA re- moved the Syosset Landfill Superfund site in Nassau County, New York from the National Priorities List (NPL) because the site no longer poses a threat to human health or the environment. The Town of Oyster Bay worked with EPA to design and install a synthetic land- fill cap, a project that was completed in October 1996. The cap covers 6.7 million tons of contaminated mate- rial left onsite. The town also im- proved the existing gas venting sys- tem in order to lower landfill gas emis- sions to non-detectable levels. EPA certified that construction for the cleanup was complete at the site in September 1998. A fence was in- stalled around the perimeter of the property and restrictions put in place to prevent human exposure to the capped landfill material. The Town of Oyster Bay operated Syosset Landfill from 1933 to 1975. Various types of wastes were dis- posed at the site, including industrial sludges contaminated with heavy metals. The landfill stopped accept- ing waste when Nassau County de- tected ground water contamination. At the time the site was listed on the NPL, two private wells and one public well had elevated levels of volatile or- ganic compounds. Although the town of Oyster Bay continues monitoring the local ground water, EPA deter- mined that no ground water remediation was necessary because limited offsite contamination did not pose a threat to the surrounding com- munity. For additional information, contact SherrelD. Henry, Remedial Project Man- ager, henry.sherrel@epa.sov. EPA Outlines Strategies for Ensuring Post Construction Completion Activities are Effective 0) In May 2005, the Office of Solid Waste and Emergency Response (OSWER) released its recommen- dations for ensuring the long-term ef- fectiveness of post con- struction completion activities at Superfund sites. The draft docu- ment, entitled "Na- tional Strategy to Manage Post Con- struction Completion Activities at Superfund Sites" (PCC Strategy), has been sent to stake- holders for review and may be revised based on comments received. The final strategy should be released in late summer 2005. After a site remedy is constructed. post construction completion activities are sometimes implemented to ensure that the remedy remains protective of human health and the environment (e.g., site fencing) or to achieve greater protection levels (e.g., ongoing ground- water treatment). Post construction completion activities include, but are not limited to, operation and mainte- nance, five-year reviews, institutional Five goals of the draft PCC Strategy * ensure that remedies remain protective and cost-effective * ensure that institutional controls required as part of the remedy are implemented and effective * assure adequate financing and capability to conduct post construction completion activities * support appropriate reuse of sites while assuring remedy reliability * improve site records management to better ensure remedy reliability controls (ICs), NPL deletion, and re- use. The PCC Strategy outlines five goals for ensuring post construction completion activities are effective. First, EPA is encouraging the review of remedies overtime and to allow for changes in remedy decisions where appropriate to achieve protection and cost-effectiveness. EPA is also rec- ommending the review of ICs to en- sure they give long-term protectiveness and are not so restrictive as to pre- vent redevelopment of a site, where feasible. With regard to funding, EPA will see that po- tentially re- sponsible par- ties (PRPs) ful- fill their O&M re sp on sibilitie s and that the states—who are often respon- sible for guaran- teeing that long- term O&M occurs at Fund-financed sites—have long-term O&M funding available. EPA will also support site reuse by ensuring that unnecessary barriers to reuse are eliminated and encouraging the use of "Ready for Re- use" determinations, easy-to-read re- ports that notify developers of a site's continued on page 7 cleanupnews 5 ------- o 0) District Court Recognizes Private Party Contribution Claim Under Section 107 of CERCLA Adobe Lumber v. Taecker, (No. CVS02- 186 GEE GGH, E.D. Ca. (May 24, 2005). By David Dowton, Office of Site Remediation Enforcement Ruling on cross-motions for partial summary judgment, the district court for the Eastern District of California has recognized that a private party may bring a contribution action under Section 107 of CERCLA. After dis- missing Adobe's claim under Section 113 as Adobe had not been the sub- ject of a civil action under Sections 106 or 107 as required under Cooper In- dustries, Inc. v. Aviall Services, Inc. (125 S. Ct. 577 (2004)), the Court went on to address whether Adobe could bring a claim under Section 107. The dis- trict court found that Adobe could not proceed on a claim for joint and sev- eral liability under Section 107 but noted that Adobe is not prevented from pursuing a recovery action on some form of liability other than joint and several. The Court started its analysis by pointing out that the Supreme Court in Aviall did not rule on whether con- tribution is available for a private party under Section 107 and therefore. Ninth Circuit precedent governs. The Court turned to the Ninth Circuit's decision in Final Creek Group v. Newmont Mining Corp. (118 F.3d 1298 (1997)), where the Ninth Circuit found that "the essence of a claim for contri- bution ... is imbedded in the text of § 107." This was further explained by the Ninth Circuit in Western Proper- ties Service Corp. v. Shell Oil Co. (358 F.3d678). Quoting Western Properties the district court wrote, "Final Creek held that the enactment of § 113 in 1986 did not replace the implicit right to contribution many courts recog- nized in § 107(a); rather, § 113 deter- mines the 'contours' of § 107, so that a claim for contribution requires the rjoint operation' of both sections." Based on this Ninth Circuit precedent. the district court denied defendant's motion for partial summary judgment finding that in the wake of Aviall. Adobe's Section 107 claim is con- strued as it was before the enactment of Section 113. The district court. however, also denied Adobe's motion as it did not address all the elements of a Section 107 contribution claim. Second Circuit Acknowledges Dilemma for Parties Seeking Contribution under CERCLA for Voluntary Cleanup Costs Syms v. Otin, 2005 U.S. App. LEXIS 8885 (2™1 Cir. 2005). By David Dowton, Office of Site Remediation Enforcement Finding that plaintiffs had not been sued under Section 106 or 107 of CERCLA, the Second Circuit ruled that plaintiffs were not eligible to seek contribution under Section 113(1) pur- suant to the Supreme Court's decision in Cooper Indus, v. Aviall Servs. (125 S. Ct. 577 (2004)). The Court, how- ever, remanded to the district court the issue of whether a liable party may bring an action under Section 107(a) to recover costs. The Second Circuit hadpreviously ruledin Bedford Affili- ates v. Sills (156 F.3d 416 (1998J) that a liable party may not bring a cost recovery action under Section 107(a) but notedthat the rule put forth in Bedford might no longer be viable in light of the Supreme Court's ruling in Aviall. In a lengthy footnote, the Court acknowledged the dilemma cre- ated by the Supreme Court's de- cision in Aviall and the Second Circuit's previous ruling in Bedford. The Court noted that together the two decisions "leave a PRP with no mechanism for re- covering response costs until pro- ceedings are brought against the PRP. This might discourage PRPs from voluntarily initiating a clean-up, contrary to CERCLAs stated purpose." The Court went on to say that a PRP that remediates a facility on its own initiative reduces the likelihood that it will be the subject of a Sec- tion 106 or 107 action and thereby jeopardizes its opportunity to seek contribution from other PRPs. The Court concludedin the footnote that if the Bedford deci- sion remains unchanged it would "create a perverse incentive for PRPs to wait until they are sued before incurring response costs." Although the Court acknowl- edged the dilemma parties like the plaintiffs face, they declined to rule on whether the Bedford decision is still viable in light of Aviall due to the fact that Aviall was decided after oral argument was held and the parties did not have an opportunity to brief the issue. Therefore, the Court elected to vacate the judgment and remand the issue to allow the dis- trict court an opportunity to ad- dress the plaintiffs' eligibility to sue under Section 107(a) of CERCLA. For additional information, con- tact David Dowton, OSRE, (202) 564-4228. cleanupnews ------- Partners with Expertise in Sustainable Development Sought for ER3 The Office of Site Remediation En- forcement (OSRE) is organizing a net- work of organizations with sustainable development expertise as part of the Environmentally Responsible Rede- velopment and Reuse (ER3) Initiative. OSRE announced the plan to form the network in an April 22, 2005 Federal Register notice. ER3, an effort to en- courage sustainable redevelopment of former contaminated sites, was launchedin September 2004. The en- visioned ER3 partner network will in- clude non-profit organizations, univer- sities, and other entities that will pro- vide assistance to redevelopers wish- ing to incorporate conservation- minded practices. Partners have to have experience in various areas of sustainable development such as the use of renewable resources for energy, reduction of pollution and energy use, and the promotion of recycling. Par- ticipating entities will not be given fi- nancial compensation by EPA for the assistance they provide. They may choose, however, to contract for paid services to incorporate recommenda- tions into a project design. Organizations wishing to participate were asked to submit statements of interest by June 22, 2005. These in- clude details on their qualifications to help redevelop contaminated land with sustainable methods. OSRE will select partners in the weeks following the deadline and post its partners on the ER3 website at: www.epa.gov/com- pliance/cle anup/re develop/er 3/ For additional information, contact Phil Page, Office of Site Remediation Enforcement, Dase.Dhil@eDa.sov. Pioneer Smelting, continued from page 2 ing material. The facility was built in 1939 by the New Jersey Zinc Company, which conducted zinc smelting and metal reclamation activities at the site. Several entities owned the facility prior to its purchase by the Pioneer Smelting Company in 1973. The facility was used by several lessees for various recycling and metal recovery operations until it was abandoned in 1996. In June 2001, the New Jersey Department of Environmental Protection (NJDEP) responded to a fire and found hundreds of deteriorating drums and a massive slag pile. NJDEP asked EPA to conduct an assessment of the site, and in July 2002, EPA's Emergency Response Team conducted an Expedited Removal Assessment. The site is located within the New Jersey pinelands, and there was evi- dence of public use prior to cleanup in- cluding motorcycle and all-terrain ve- hicle tracks. Access to the site contin- ues to be restricted although the con- tamination and structural hazards have been abated. Future site use is under consideration by the current owner, local government, and EPA at- torneys. Additional information is available on the EPA's On-Scene Coordinator website at: http://www.epaosc.org/ site Drofik.asp?site id=SJ. Aerial view of Pioneer Smelting prior to site cleanup. EPA Strategies, continued from page 5 status. And EPA is recommending improving recordkeeping through stan- dardizing recordkeeping procedures and managing data electronically. The draft PCC Strategy is available on Superfund's Post Construction Com- plete web site at: http://www.epa.gov/superfund/action/ postconstruction/index.htm. For additional information, contact Tracy Hopkins, OSRT1, hopkins. tracy@epa. sov. deanupnews 7 ------- July 12-15, 2005 2005 Community Involvement Conference and Training http ://www. epancic, org/2005/ overview.cfm Buffalo, NY August 7-10, 2005 College & University Hazardous Waste Conference http://center.uoreqon.edu/ronferences, September 19-23, 2005 20th Annual Hazardous Materials Management Conference on Household & Small Business Waste http://www.nahmma.orQ/ 2005conference/ November 2-4, 2005 Brownfields 2005 http://www.brownfields2005.org/en/ Glossary BRAG Base Realignment and Closure EPA Environmental Protection Agency CERCLA Comprehensive Environmental Response, Compensation, and Liability Act DOD Department of Defense ER3 Environmentally Responsible Redevelopment and Reuse ICs Institutional controls NPL National Priorities List O&M Operation and maintenance cleanupne CleanupNews is a quarterly publication of EPA's Office of Site Remediation Enforcement, in cooperation with the Office of Superfund Remediation and Technology Innovation, Office of Underground Storage Tanks, and Office of Emergency Prevention, Preparedness and Response. Past issues of CleanupNews can be found at http://www.epa.qov/conipliance/ resoiirces/iiewsletters/deaniip deaiuipnews.htnii OECA Office of Enforcement Compliance and Assurance OSRE Office of Site Remediation Enforcement OSWER Office of Solid Waste and Emergency Response PBC Performance-Based Contracting PCC Post construction completion PRPs Potentially responsible parties USAEC US Army Environmental Center UST Underground storage tank ^^^ww,epa.gov/compliance/abouVoffices.'.>. -. Richard W. Popino, PhD REM, Editor in Chief EPA Review Board; Diane Bartosh, Sandra Connors, Karen Ellenberger, Elliott Gilberg, Jeff Heimerman, Kenneth Patterson, Neilima Senjalia, Suzanne Wells Christine Rueter and Cheryl Mueller, DPRA Inc., writers Mary Spencer, DPRA Inc., designer ml To comment on the newsletter contact Richard W. Popino, PhD REM, at MC-2271A, U.S. EPA, 1200 Pennsylva- nia Ave., NW, Washington, DC 20460, emaihpopino.rick® epa.gov. To be added or deleted from the subscriber list, contact Christine Rueter at christine.rueter@dpra.com. To receive CleanupNews by email, subscribe at http://www.epa.gov/compliance/resources/listserv/ cleanup.html. 008$ ^uATj^ joj jfyjuua^ ssauisng JEIOIJJO 9E-9'ON Ill/\iy3d VcB aiVdS33d1S39VlSOd ssvioisyid 09tOS OQ ' (VILLZ) AoueSy uoi ------- |