United States
                       Environmental Protection
               Office of Site Remediation
               Enforcement (2271 A)
               Washington, DC 20460
SEPA     cleanupnews
         Spring 1999
         Issue #2

 Guidance          2
 Getting Y2K Ready    3
 Fairmont Coke Moves
   Toward XL Project  6
 All About CEPPO      7
 In the Courts        8
 ADR             9
 Brownfields and
   Taxes         10
 National Notable
   Awards        11
 Announcements     12
  Cleanup News is an occa-
  sional newsletter highlighting
  hazardous waste cleanup
  cases, policies, settlements,
  and technologies.
Superfund  Reforms
Are  Paying  Off
      Anew EPA report on Superfund ac-
      complishments finds  that  three
      rounds of reforms over the last five
years have made the Superfund program
"faster, fairer, and more efficient" The re-
forms have touched  on every part of the
program, from expediting cleanups and in-
creasing liability fairness to promoting envi-
ronmental justice and innovative technology.
  A useful indication of the reforms' suc-
cess is the number of sites on the Super-
fund National Priorities List (NPL) where
the construction of cleanup remedies has
been completed. In FY97 and FY98, EPA
completed construction at 175 sites on the
NPL, exceeding the target of 130 com-
pleted  sites for those years.  These 175
sites account for 30 percent of the total 585
sites completed since the program's incep-
tion in 1980.
  In FY98, the Superfund enforcement

A  Civil  Action

   It has been called  "an American version
   of a Greek tragedy." The movie, "A
   Civil Action," opened on December 25,
1998, based on the award-winning book by
Jonathan Harr of the same title. Both book
and movie bring to  life  the lengthy and
complex lawsuit surrounding the contami-
nation of drinking water wells in Woburn,
Massachusetts and the illnesses that de-
veloped among the families living nearby.
The families sued W.R. Grace and Beatrice
The Industri-Plex site in North Wbum, Mass-
achusetts, illustrates Supefund's effectiveness
in returning sites to productive use. Once a
                                                                   health and the environment, the site is now
                                                                   poised to become a major commercial and
                                                                   retail district.

                                                                   program secured private party commit-
                                                                   ments that exceeded $1 billion. This
                                                                   brings the cumulative value of  private
                                                                   party commitments since the program's
                                                                   inception to approximately $15.5  billion.
                                                                                   continued on page 4
Foods, both of which had plants located
close to municipal wells. W.R Grace set-
tled with plaintiffs for almost $9 million
after the first phase  of the trial, and the
two companies ended up paying nearly
$70 million for cleanup. The Wells G&H
site was listed on EPA's National Priorities
List in 1982.
  Several websites are available online to
provide the public with more information.
                 continued on page 6
                                                                                    Printed on recycled paper


Cashouts Available for
Peripheral Parties

EPA and Justice Issue CERCLA
Section 122(h) Guidance

   In September 1998,  EPA  and the
   Department of Justice jointly  is-
   sued   guidance   on  CERCLA
§122 (h) administrative response costs
settlements, along with five model set-
tlement documents. EPA hopes that
use of these models will lead to speedy
and consistent settlements across the
country. The guidance  explains the
various uses of the 122 (h) authority,
ranging from limited past cost recov-
ery settlements  to broad,  site-wide
"cashout"  settlements for qualifying
   Expedited "cashout" settlements
will be available for "peripheral par-
ties." Peripheral parties  are those par-
ties who, for reasons of finances or fair-
ness,  are not the focus of  CERCLA
enforcement activities. Although not
technically de minimis or de mictomis,
peripheral parties include those with a
documented inability to pay and those
for whom unresolved CERCLA liability
is not only an extreme burden, but also
whose  request for  settlement is sup-
ported by compelling equities. Offer-
ing these peripheral players an  early
cashout settlement will  reduce  their
transaction  costs, provide them with
peace of  mind, and make the Super-
fund process fairer for all concerned.
The guidance discusses in more detail
when these peripheral  party settle-
ments  may be appropriate and when
the administrative forum is  the  right
one for such settlements.
   The cashout option does not repre-
sent a change in EPAs enforcement
policy. EPAs central goal has been and
continues to be obtaining performance
of site cleanups  from potentially  re-
sponsible  parties.  Most  Superfund
sites have multiple PRPs, and these
parties are encouraged and expected
by EPA to join together and undertake
response  action cooperatively pur-
suant to a judicial consent decree or, in
instances where removal action is in-
volved, an administrative order on con-
sent. Cashout settlements are  an addi-
tional  CERCLA   settlement  tool,
limited to situations in which EPA be-
lieves the settling PRP is not in a posi-
tion to undertake a response action ei-
ther individually or collectively with
other PRPs, but is able to make a cash
payment to address past and future re-
sponse costs at the site.
   The guidance, entitled, "Guidance
on Administrative Response Cost Set-
tlements under Section 122 (h)  of CER-
CLA and Administrative Cashout Set-
tlements  with Peripheral  Parties
under Section 122 (h) of CERCLA and
Attorney General Authority," includes
model  administrative agreements for
past cost  recovery,  for cashing out
ability to pay peripheral parties, and
for cashing out non-ability to  pay pe-
ripheral parties. For more informa-
tion,    contact    Janice   Linett
(EPA/OSRE) at 202-564-5131,  or Tom
Mariani (DOJ) at 202-514-4620.

Model  Language for
Federal  PRPs
EPA has been using a model  consent
decree for remedial design/remedial
action since July 1995. However, revi-
sions to the model were needed for
CERCLA liability claims against the
United States that are based on the ac-
tions of federal agencies that are  po-
tentially responsible parties (Federal
PRPs). In  December 1998, EPA and
DOJ revised the model to address the
most common settlement  circum-
stance, where federal PRPs do not per-
form the work, but instead  make  a
lump-sum payment to cover an allo-
cated share of the costs of the work
and other response costs at issue.
   The key changes are in certain def-
initions, the payment provisions, the
covenants, reservations, and contribu-
tion protection. Because they are cash-
ing out, the federal PRPs' payment will
generally include a premium to cover
the risk that the work will cost more
than expected, and a further premium
to the extent that federal PRPs are ex-
cluded  from liability for additional re-
sponse actions. Where a different pay-
ment procedure  for a federal  PRP
settlement is used (such as a "pay-as-
you-go" settlement where private PRPs
perform the work and bill the federal
PRPs periodically), additional changes
to the payment provisions will be nec-
   Federal PRP payments to resolve li-
ability or judgments against the U.S.
government generally are made by the
Department of the Treasury from the
Judgment Fund as soon as reasonably
practicable after the consent decree is
entered.  With  respect to response
costs incurred  by EPA,  those  pay-
ments will be made directly to the Haz-
ardous  Substances  Superfund; the
transfer will be made using the federal
government's  inter-agency electronic
funds transfer system. If such  pay-
ments are not made within the time pe-
riod  provided for private PRP  pay-
ments,  interest on the Federal  PRP
share will be paid to  the Superfund
commencing on the effective date of
the consent decree (this is an earlier
interest commencement date than for
private  PRP payments).
   These model revisions should ex-
pedite the drafting and negotiation of
settlements in which federal PRPs par-
ticipate. For more information, contact
John Wheeler, OSRE, 202-564-4284.
         2   Cleanup News

Superfund  Takes  Steps  to
Prepare  Sites  for Y2K
   It seems nothing is out of the reach
   of the Year 2000 Millennium Bug,
   including Superfund  sites. The
Ott/Story Cordova  Superfund  site
near Muskegan,  Michigan was re-
cently surveyed by  the  U.S. Army
Corps of Engineers for Y2K problems.
The Corps found that critical plant con-
trol software, if not updated, could dis-
rupt the effective treatment of contam-
inated groundwater.  "We  are taking
Y2K very seriously," said Steve Luftig,
Director of EPA's Superfund Program.
"We need to be able to assure the pub-
lic that we have taken the  appropriate
steps to prepare all vulnerable sites for
possible Y2K problems and are ready
to respond in case  of an environmental
emergency," said Luftig.
   A Superfund Y2K Steering Commit-
tee was formed to look at remedial and
removal sites where there  may be po-
tential computer and equipment prob-
lems. The steering committee identi-
fied five basic steps the regions need to
take to ensure that Superfund sites are
Y2K prepared:
1. Notify PRPs of their responsibility
   to check sites.
2. Screen all  fund-lead sites (O&M
   and Long-term Response Action
3. Screen all other sites for potential
   problems (non-NPL removal sites,
   state-lead, federal facilities).
4. Use  CERCLIS  database  to track
   sites that have been Y2K prepared.
5. Notify communities that sites in
   their  area  have  been Y2K pre-
The removal program is  also taking
steps to prepare  for emergency re-
sponse situations as a result of Y2K
system failures. "One of the most crit-
ical elements during a Y2K response
will be the reliability of our communi-
cation devices and  response equip-
ment," said Luftig. "We are asking the
regions to check satellite phone sys-
tems and beepers for Y2K problems.
The removal program is also develop-
ing an inventory of  Y2K-prepared
equipment they may need during an
emergency response."
   Communicating Y2K information to
the public is also critical. Communities
may want to know if the Superfund site
in their town is Y2K prepared.  Fact
sheets about Y2K will  be used to in-
form citizens of the status of Superfund
sites. "We also need  to pay special at-
tention to those citizens who rely on al-
ternate drinking water supplies as a re-
sult of a past  Superfund removal or
cleanup action," said Luftig.
   "It's our goal to have all of these
checks in place this summer," said
Luftig. "We've done a good job identify-
ing potential problems and response
capability. We have also done a good
job putting a lot of Y2K information on
the Internet for the public to access. We
certainly hope that all our preparations
are not put to the test in the year 2000
but we're preparing in case they are."
   For more information about Y2K
preparedness in Superfund, please visit
EPA's Y2K home page at http://www
epa.gov/year2000 or contact Helen
DuTeau at (703) 603-8761.

   For Y2K stories, articles, and ideas,
    check out OSW's newWeb site:
Enforcement Y2K  Policy
         What happens if your  Y2K
         computer testing results in
         environmental   violations?
Not to worry. EPA will waive civil penal-
ties and recommend against criminal
prosecution for any environmental vio-
lations caused during specific tests that
are designed to identify and eliminate
Y2K-related malfunctions. This policy
is  limited to testing-related violations
disclosed to EPA by February 1, 2000,
that also meet nine criteria (e.g., sys-
tematic design of testing protocols, con-
ducting the tests for the shortest possi-
ble  period   of  time   necessary,
correcting any testing-related  viola-
tions immediately, and other conditions
to ensure that protection of human
health and the environment is not com-
promised). Regulated facilities that
wish to test in advance of the Y2K dates
are encouraged first to utilize any exist-
ing regulatory or permit procedures
that would allow for timely and effective
testing (e.g., RCRA trial burn testing of
hazardous waste; R&D permits.
   EPA's policy applies not only to the
year 2000 problems but other related
computer date problems, such as
9/9/99 (which may be interpreted by
some computers as the end of a file or
infinity). For more information, consult
the full policy on the Web at http://
                                                                                             Cleanup News 3

Superfund Reforms
continued from page 1

Here is a rundown of the report's find-
Greater PRP
EPA has seen an increase in PRP in-
volvement since implementing key fair-
ness reforms.  Prior to developing ini-
tiatives  such  as  orphan   share
compensation and  special  accounts,
EPA ordered PRPs to conduct reme-
dial cleanup work in approximately 50
percent of all cases. Since the reforms,
PRPs have agreed (in consent de-
crees)  to  conduct  cleanup approxi-
mately 66 percent of the time; EPA has
had to order cleanup only 34 percent of
the time (through unilateral adminis-
trative orders).

Orphan Share
Through the  orphan share reform,
EPA shares the cost burden of the or-
phan share with settling PRPs at every
eligible  site. Through FY98, EPA of-
fered approximately $145 million in or-
phan share compensation at 72 sites.
Many of the offers made in FY98 were
in the context of cost recovery negoti-
ations, as EPA has expanded this re-
form to  include these  cases. These
numbers demonstrate EPAs commit-
ment to achieving greater fairness
even where this commitment may re-
sult in a significant reduction of the
amounts ultimately returned to the

Remedy Reform Saves
Over$1  Billion
Several reforms were aimed at review-
ing proposed high cost remedies and
updating them with the most current
science  and  technology. Since  1995,
streamlining  and improving the rem-
agers and technical experts who un-
derstand both the EPA regional and
headquarters perspectives in the rem-
edy selection process. NRRB reviews
alone have  reduced total  estimated
cleanup costs by more than $43 mil-
lion at 33 high-cost remedies. As of
October 1998, EPA and DOE have
agreed that  the Board will review all
DOE non-time-critical removal actions
estimated to cost over $30 million.
  The  Updating Remedy  Decisions
reform (see box) is one of EPAs most
successful reforms, based on its fre-
quent use and the  amount of money
saved. This reform encourages Re-
gions to revisit selected remedy deci-
sions at sites where significant new sci-
                                                   In three years, EPA and other parties updated
                                                   over 200remedies and generated future  cost
                                                   savings  estimated at over$l billion.
                                                   edy selection process has saved over
                                                   $1 billion in estimated cleanup costs
                                                   for PRPs and the Superfund program.
                                                   A National Remedy Review  Board
                                                   (NRRB) was created in January 1996
                                                   as a peer review group of EPA man-

                             Updating  Remedies
        Auburn Road Landfill,MA. New performance data provided the necessary information to update
        the selected remedy at the Auburn Road Landfill. Two years of monitoring and modeling perfor-
        mance data from the site showed that the original pump and treat remedy successfully brought
        volatile organic compounds below the cleanup levels in most areas. Updating the remedy to mon-
        itored natural attenuation saved an estimated $12 million.
        Allied Chemical/fronton Coke Site, Lawrence County, OH. The PRP at the site proposed the alter-
        native remedy after data collected during the engineering design phase showed that contamination
        levels in the soils were not as high as previously thought. The revised remedy will replace in-situ
        bioremediation of over 450,000 cubic yards of soil with hot spot excavation and wetland development,
        and replace incineration of other lagoon materials with recycling, treatment, and/or disposal of waste
        materials in an approved off-site hazardous waste facility, with some remaining soils used as an al-
        ternative fuel mixture. The new remedy will save approximately $50 million while still achieving
        cleanup levels that are protective of human health and the environment, and the constructed wetland
        will create a valuable ecological habitat for the community.
                                    entific  information,  technological
                                    advancements, or other considerations
                                    suggest an alternative remedy will pro-
                                    tect human health and the environment
                                    while enhancing the cost effectiveness
                                    of  the cleanup.  From  FY96 through
                                    FY98, EPA and other parties updated
                                    over 200 remedies and  generated esti-
                                    mated future cost savings of over $1 bil-
                                    lion. Only eight remedy updates gener-
                                    ated  cost  increases  (estimated  at
                                    approximately $65 million). The aver-
                                    age cost of cleanup  construction has
                                    dropped by almost $4 million per pro-
                                    ject — a decline of over 20 percent —
                                    over the past four years.

                                    Revitalizing the Land
                                    A high priority is the reuse of formerly
                                    contaminated properties, which  often
                                    gives an economic boost to depressed
                                    areas. EPA has developed a number of
        4  Cleanup News

different strategies to enable contami-
nated sites to be considered for rede-
velopment. They  include the Brown-
field Pilot Projects for non-Superfund
contaminated sites, which play a major
role in encouraging the redevelopment
of potentially contaminated property;
altering the inventory and listing status
of sites in EPA's CERCLIS database to
remove associated threats  of Super-
fund liability; and use of EPA's enforce-
ment discretion to remove liability bar-
riers  that might  impede site reuse
(through prospective purchaser agree-
ments and comfort/status letters). To
date,  EPA  has removed over 30,000
sites from CERCLIS and awarded 227
Brownfield Pilot  grants. Another  16
"showcase  communities" will receive
up to $1 million in grants and other aid
to support brownfield redevelopment.
               Comfort  Letter Success Stories
  •  Woburn,MA. A property owner adjacent to the Industri-Plex Superfund Site was receiving of-
     fers of less than half his asking price for his property due to potential ground water contami-
     nation. After EPA issued a comfort letter to the property owner, he received the amount he was
  •  Glendale, CA. Dreamworks, the film studio founded by Steven Spielberg, showed interest in
     buying a large parcel of land on which to build sound stages. However, the land included a por-
     tion of the San Fernando Valley Superfund Site, a contaminated aquifer subject to EPA cleanup
     activities. EPA's comfort letter was able to address Dreamworks' concern over potential Su-
     perfund liability.

  "EPA has demonstrated a steadfast commitment to reducing the anxiety of real estate investors
  interested in properties where contamination, or the threat of contamination, is present. Through
  a concerted series of EPA Superfund Administrative Reforms and associated Clinton Administra-
  tion policy initiatives, a remarkable number of previously abandoned or underutilized properties
  are now being returned to productive use."
                             —Lawrence Jacobson, Director, Commercial Real Estate Finance,
                                               Mortgage Bankers Association of America
Getting the Little
Guy Out
Since initiating the reforms program in
1993, EPA has removed thousands of
small waste  contributors from the Su-
perfund liability scheme. Recognizing
that  third-party litigation  can  inordi-
nately burden small parties, EPA has
used its settlement authority  to  get
small waste  contributors out of Super-
fund litigation. This effort decreases
transaction costs while increasing fair-
ness and  resolution speed.  Through
FY98, the government has completed
settlements with over 18,000 small vol-
ume contributors (two-thirds since the
de minimis reform was announced) at
hundreds of Superfund sites.
   EPAhas also sought to protect demir
cromis  contributors through policies
that double previous eligibility cutoffs in
an effort to discourage third party liti-
gation against de micromis parties. For
such small parties, the cost of legal and
other representation services may actu-
ally exceed the party's settlement share
of response costs. If private parties do
threaten suit against these very  small
contributors, EPA enters into  settle-
ments providing contribution protection.
By publicly offering parties a zero dollar
settlement, EPA has deterred big pol-
luters from dragging de micromis con-
tributors into litigation. The real success
of this method is measured by the un-
told number of potential lawsuits that the
Agency has discouraged. The low num-
ber of sites using de micwmis settle-
ments  (9 sites through FY98) illustrates
how EPA's 1993 and 1996 de micwmis
policies have  successfully  deterred
PRPs from pursuing small parties.

EPA believes that communities  must
have meaningful opportunities for in-
volvement early in the cleanup process
and  should stay involved throughout
site cleanup. Initiatives such as Commu-
nity Advisory Groups (CAGs), Techni-
cal Assistance Grants (TAGs), and job
training programs are just a few of the
ways that EPA is supporting this en-
deavor. In FY98,14 new CAGs were cre-
ated, bringing the total to 47. The CAG
concept has been  so successful that
other EPA programs have adopted this
approach. EPA released two versions of
a Community Advisory Group Toolkit
during FY98 to help communities set up
and maintain a CAG.
   Stakeholder feedback indicates that
EPA's  Superfund  Reforms have  al-
ready addressed the main areas of the
program that needed improvement.
EPA remains committed to fully imple-
menting the reforms, refining or im-
proving them where necessary,  and
broadening their impact by effectively
communicating  the scope, goal,  and
success of each initiative. As EPA eval-
uates each reform, it will continue to in-
corporate the  most  successful ideas
into the entire Superfund program.
   Copies of the Superfund Reforms
Annual Report FY 1998 may be down-
loaded from the new Superfimd Re-
forms Web site at http://www.epogov/
                                                                                                      Cleanup News 5

Fairmont Coke Works
Site: Superfund XL
Project Moves Forward
      On March 30,1999, EPA signed
      on to a final agreement on con-
      ducting a Project  XL at the
Fairmont Coke Works site in West Vir-
ginia. Participating in the project are:
Exxon  Corporation, as the project
sponsor, EPA Region 3, West Virginia's
Division of Environmental  Protection,
and the Fairmont Community Liaison
Panel. A signing ceremony is sched-
uled for May 24,1999.
   The Fairmont site is approximately
50 acres in size, located along the In-
terstate-79 corridor, and  has  been
listed  on the NPL since  December
1996. Exxon had agreed to conduct a
remedial investigation  and feasibility
study, and risk assessment at the site,
but will now conduct an engineering
evaluation and cost analysis instead.
   Under the agreement, Exxon is
committing to:
•  Without a prior finding of environ-
   mental risk, demolish and  prop-
   erly dispose of all onsite buildings
   and structures  for the aesthetic
   value to the community as well as
   to facilitate redevelopment of the
•  Attract interested developers for
   reuse of the property to facilitate
   the transfer of site ownership;
•  Help demonstrate that early consid-
   eration of future beneficial uses is a
   desirable and practical aspect of a
   Superfund remedial response and
   may assist in raising the economic
   health of the local community;
•  Ensure early local government in-
   volvement in the XL project to pro-
   vide for future land use planning ac-
   tivities and  the  identification  of
   potential land use determinations;
•  Support the dedication and part-
   nering of  the parties and  stake-
   holders involved  in the cleanup
   and as a result of the project  (as
   well as programmatic remediation
   mechanisms)  achieve  a faster,
   more efficient cleanup of the site.
The  agreement will  be published in
the Federal Registem\\h a 30-day pub-
lic comment period. For more  infor-
mation,  contact Ben  Lammie,  EPA/
OSRE, 202-564-7126.

New Technology
      The following  publications  of
      EPAs Technology Innovation
      Office can be downloaded from
the Web site at (http://clu-in.org) or
ordered free of charge from NSCEP,
U.S. EPA, P.O. Box 42419, Cincinnatti,
OH 45242, tel: (513) 489-8190 or (800)
              490-9198,  or online
              from www. epa.gov
                Technical Proto-
              col  for  Evaluating
              Natural   Attenua-
              tion of Chlorinated
              Solvents in Ground
              Water.    Provides
              guidance for environ-
              mental managers  on
              the steps that  must
be taken to understand the rate and
extent to which natural processes are
reducing contaminant concentrations
at sites that are contaminated by chlo-
rinated solvents.  Data collected with
this protocol can be used to evaluate
natural attenuation through biological
processes as part of a protective over-
all site remedy. The protocol is the re-
sult of a collaborative field and labora-
tory   research   effort   involving
researchers from U.S. EPA/ORD, the
U. S. Air Force, and the  U.S. Geologi-
cal Survey. Order #EPA 600-R-98-128.
   Field Applications  of In  Situ
Remediation     Technologies:
Ground-Water Circulation Wells.
This report  is one in a series  that
document recent  pilot  demonstra-
tions and full-scale applications  that
either treat soil and ground water in
situ or increase the solubility  and
mobility of contaminants to improve
their removal  by other remediation
technologies. It is hoped that this in-
formation will allow more  regular
consideration of new, less costly, and
more  effective technologies to ad-
dress the problems associated with
hazardous waste  sites and petroleum
contamination. Order  #EPA 542-R-
                                                                                        A Civil Action
                                                                                        continued from page 1

                                                                                        They include: http://wwwmovies. com/
                                                                                        cMactbn (Touchstone Pictures) ;MWW.
                                                                                        cM-actbn.com  (WR Grace); www2.
                                                                                        (Daniel Kennedy, a Woburn reporter);
                                                                                        and  http//www.geology.ohiastate.edu/
                                                                                        court room (a course by Dr. E.  Scott
                                                                                        Bair, Ohio State University, leading to a
                                                                                        mock trial). For information from EPA
                                                                                        contact the Superfund Hotline at 800-
               Overview of the Fairmont Coke Works site.
       6   Cleanup News

 CEPPO     "The Chemical Safety Continuum"
        According to EPA,  more than
        402,000  chemical  accidents
        have happened in  the last 12
 years in the United States. These acci-
 dents resulted in nearly 4,000 deaths,
 25,300 injuries, and 1,400 evacuations
 affecting  147,000  individuals. Eighty
 percent of these accidents occurred at
 industrial  and commercial facilities
 that store, hold, mix, blend (or other-
 wise use) chemicals.
   Facilities  that use chemicals can
 have catastrophic accidents. They also
 provide products and services that are
 vital to  our economy. EPA's Chemical
 Emergency Preparedness and Preven-
 tion Office (CEPPO) seeks to balance
 these factors by ensuring that facilities
 are doing  all they can to  thoroughly
 understand the chemical and process
 hazards at a facility, make sure all the
 elements necessary to operate  a facil-
 ity work together on a daily basis (i.e.,
 process safety management), prepare
 to quickly minimize the consequences
 of accidents that do occur, and com-
 municate this information to workers,
 the public and first responders.
   How does EPA ensure that com-
 munities  and facilities are doing all
EPA's Chemical Emergency Preparedness
and Prevention Office (CEPPO)  provides
leadership, builds partnerships, and offers
technical assistance to:
1.  prevent  and prepare for  chemical
2.  respond to environmental crises;
3.  inform the public  about  chemical
   hazards in their communities; and
4.  investigate chemical accidents.
they can to prepare for — and prevent
— catastrophic chemical accidents?
How do we ensure that companies are
looking at their activities  as  a safety
continuum? We do it by working with
our partners in state and local govern-
ment,  private industry  and the com-
munity to implement the following col-
lection of integrated  chemical safety
•  EPCRA. The Emergency Plan-
   ning  and  Community Right-to-
   Know Act is the first stop on the
   safety continuum.  EPCRA created
   State  Emergency  Response Com-
   missions and  Local Emergency
   Planning Committees,  and  re-
   quires them along  with facilities
   and communities to plan for chem-
   ical emergencies.  The Risk Man-
   agement Program will further the
   continuum  by focusing on preven-
   tion of accidents in the first place.
•  Risk  Management  Program.
   EPA  will require approximately
   50,000 facilities to provide impor-
   tant catastrophic accident preven-
   tion data to the public beginning
   June 21, 1999. The  new informa-
   tion will help facilities identify and
   control on-site  hazards through:
   hazard assessments,  including
   worst-case release and alternative
   release scenarios;  accident preven-
   tion activities, such as use of spe-
   cial safety equipment and em-
   ployee   training   programs;   a
   five-year accident  history; and fa-
   cility  emergency response  pro-
   grams and plans. The information
   will allow community members to
   see how local facilities are working
   on a  daily  basis to prevent  acci-
•  Chemical  Safety Audits.  The
   primary objective of the voluntary
   CSA program has  been to pro-
   mote hazard identification and ac-
   cident prevention at facilities han-
   dling hazardous substances. The
   audits  results — which  evaluate
   chemical process safety manage-
   ment practices and technologies
   — are available to the public. The
   CSA program has succeeded by
   encouraging  businesses to apply
   their own best judgment to their
   operations and to share their audit
   experiences  and  recommenda-
   tions with other industry partners.
•  Accident       Investigations.
   CEPPO's accident  investigators
   use existing EPA authorities to de-
   termine root causes of major acci-
   dents and then  to issue "lessons
   learned" alerts for the chemical in-
   dustry, or to consider new regula-
•  General  Duty Clause. This
   clause makes all owners and oper-
   ators of facilities that have  ex-
   tremely hazardous substances re-
   sponsible for ensuring that their
   chemicals are managed safely. Fa-
   cilities subject  to GDC  are re-
   quired  to: 1)  identify  hazards
   which may result in chemical re-
   leases; 2) design and maintain  a
   safe facility;  3)  take necessary
   steps to prevent releases; and
   4) minimize the consequences of
   releases that do occur.
   For more information, contact Julie
Vanden Bosch, 202-260-7952.

                                                                                                    Cleanup News  7

                Homestake Mining
                   In United Statesv. Homestake Min-
                   ing Company of California, Civ. 90-
                   5101, (W.D.S.D. Feb. 19,1999), the
                Court upheld EPA's final dispute deci-
                sion to conduct an  ecological risk as-
                sessment as part of its five-year review
                for the Whitewood Creek Superfund
                Site, and ordered modification of the
                consent decree to permit a limited as-
                sessment to address existing data gaps.
                  Whitewood  Creek  was  deleted
                from the NPL in November 1995, and
                the consent decree was terminated in
                January 1996. The following January,
                Homestake prepared a five year re-
                view report and status report on the
                site  and sent it to EPA  In September
                1997, EPA requested that Homestake
                conduct an ecological risk assessment
                as part of the five-year review for the
                site. Homestake argued that EPAs re-
                quest to conduct the assessment was
                outside the scope of the Record of De-
                cision and consent decree.
                  After an informal period of dispute
                resolution, EPA  concerned about de-
                lays, withdrew its request that Homes-
                take conduct the assessment and de-
                                     cided to proceed on its own. Homes-
                                     take then filed a motion with the U.S.
                                     District Court for the District of South
                                     Dakota to enforce the terms of the con-
                                     sent decree or to modify that decree.
                                     The court first determined that a dis-
                                     pute existed under the terms of the con-
                                     sent decree and in a subsequent ruling,
                                     sent the issue back to the EPA for a
                                     final administrative decision.
                                       In November 1998, EPA issued a
                                     Final Dispute Decision in accordance
                                     with the terms of the dispute resolu-
                                     tion provision of the consent decree.
                                     EPA determined an ecological risk as-
                                     sessment was necessary because:  (1)
                                     data gaps existed in the original  as-
                                     sessment conducted for the site; (2) a
                                     large amount of contaminated tailings
                                     remained on-site; (3) the state and fed-
                                     eral trustees were concerned  about
                                     the need for an assessment: and (4)  re-
                                     cent EPA guidance, which emphasizes
                                     site-specific considerations as a basis
                                     for further study  of  environmental
                                     conditions at a site, supported doing
                                     an ecological risk assessment here.
                                       The court held that EPAs Final Dis-
                                     pute Decision was not arbitrary and
                                     capricious. It noted that neither the lan-
                                     guage of the consent decree nor the
                                     statement of work limited EPAs ability
                                     to perform further studies, including an
                                     ecological risk assessment, at the site.
                                     The court explained further, however,
                                     that it was going to grant Homestake's
                                     motion to modify the decree because
                                     EPAs rinding that the original assess-
                                     ment was insufficient constituted a sig-
                                     nificant  change  in factual conditions
                                     such that a modification of the consent
                                     decree was necessary.
                                        Nevertheless, the court held that
                                     'EPA has every right to conduct tests at
                                     the Site as part of the five-year review to
                                     ascertain the efficacy of the remedy
                                     chosen." It determined that EPA could
                                     conduct a limited study to fill in the data
                                     gaps of the original assessment. It also
                                     held that Homestake should either con-
                                     duct the limited assessment or com-
                                     pensate EPA for reasonable costs.  Fi-
                                     nally, the court noted the modification
                                     did not limit Homestake's responsibil-
                                     ity to address the findings of a the  as-
                                     sessment or findings of other activities
                                     required under the five-year review.
                                        For more information, contact Ben
                                     Lammie at 202-564-7126 or Richard
                                     Sisk at 303-312-6638.
NEJAC Subcommittee
Holds Fact-finding
Tour of Waste Transfer
      On February 16-17,  1999, the
      Waste  and Facility Siting Sub-
      committee of the National En-
vironmental Justice Advisory Council
(NEJAC) hosted a two-day fact-finding
tour and forum on Waste Transfer Sta-
tions in the District of Columbia (Re-
gion 3). This was the second such ef-
fort; a similar session was held in New
York City (Region 2)  in November.
The meetings' purpose was to gather
information from every level of stake-
holder on the impact of transfer sta-
tions on the communities surrounding
them. The subcommittee is preparing
a report to NEJAC with recommenda-
tions for  EPA as it develops national
policy and guidance. Contact: Brenda
M. Williams-Robinson, 202-5644291.

$13 Million Settlement
in  Bayou Bonfouca
Case, Slidell, LA.
In February, the U.S.  and State of
Louisiana settled a CERCIA Section
107 cost recovery litigation for $13 mil-
lion against Alabama  Great Southern
Railroad Company in Region 6 (United
States v. Braselman Corporation, et al.,
CA No. 96-0872). The court had found
ACS liable as an owner (lessee) for the
period 1882 to 1886, and as an owner of
the tracks which were found to be CER-
CLA faculties from 1902 to 1972. Trial
was scheduled to begin on February
23, 1999, to determine whether ACS
was jointly and severally liable. The set-
tlement occurred following intense ne-
gotiations  supervised  by U.S. Magis-
trate Judge Alma Chasez. The terms of
the settlement will now be incorporated
in a consent decree, which the parties
have agreed will be based upon EPA's
model CERCIA consent decree.
        8  Cleanup News

ADR  Closes the   Deal   at  the
Helen   Kramer  Landfill
       Alternative  dispute  resolution
       was a useful tool in facilitating
       a settlement among the defen-
dants at the Helen Kramer Landfill Su-
perfund Site in Mantua County, New
Jersey. The litigation was complex and
contentious, but  after the mediators
became involved, the settlement talks
were able to encompass a wider group
of defendants.
  A remedy at the site was performed
by EPA through an interagency agree-
ment with the Army Corps of Engi-
neers. It involved capping over 80 acres
of landfill, encircling the landfill with an
impervious slurry wall about one and a
half miles long, and installing gas and
leachate collection and treatment sys-
tems. The cost of the work was esti-
mated at $80 million. Study, design, and
enforcement   costs increased  the
United  States' claim by an additional
$15 million, plus enforcement costs and
prejudgment interest of $29 million.
  Cost recovery litigation was origi-
nally referred to the Department  of
Justice  in 1989.  However, the judge
stayed  the litigation for four years  to
allow approximately 250  direct and
third-party defendants to perform an
allocation of liability to facilitate a set-
tlement. When the final allocation re-
port was rejected by the participants
after four years of work, EPA and the
Department of Justice litigated the lia-
bility phase of the case vigorously  to
move it toward resolution, whether by
adjudication  or,  as eventually hap-
pened,  by settlement.
  Active and zealous litigation by the
government resulted in favorable rul-
ings by the court which induced the de-
fendants to begin serious settlement
negotiations in 1997. A key court ruling
 in 1998 related to the statute of limita-
 tions allowed the United States to sue
 additional defendants. Agreeing with
 the United States arguments, the Court
 held that the United States' amendment
 of its  complaint within three years of
 completion of remedial action was  a
 "subsequent action" not barred by the
 statute of limitations. That decision
 brought several recalcitrant defendants
 with large allocated shares into the set-
 tlement process.
imis parties, defunct companies, insur-
ance companies, and 44 municipalities,
including the City of Philadelphia.
ADR facilitated the $95 million (plus
interest) settlement that included all
the United States' viable defendants
and 220 third-party defendants, includ-
ing all 44 municipalities.
   The final settlement, entered by the
Court on September  3, 1998, repre-
sents the recovery of approximately
100% of actual, out-of-pocket costs and

ADR was effective in helping the parties  ovvvme
substantial roadblocks to settlement, in a way that
supported them in their eforts
 Enter ADR
 Notwithstanding their renewed inter-
 est in settling the case as the tide of lit-
 igation began to run against them, the
 defendants remained incapable  of
 agreeing among themselves as to how
 much each should pay. At that point,
 EPA offered ADR to break the logjam,
 providing  funding  for a "convener."
 The efforts of the convener enabled a
 large group of defendants to  set their
 priorities and to  retain  two experi-
 enced mediators. ADR proved crucial.
 The lead attorney for the defendants
 was so impressed by EPA's convener
 that he wrote a letter of appreciation to
 EPA's Administrator.  The mediators
 were actively involved in the  case and
 were instrumental in bringing various
 factions into the settlement. They had
 to find ways to get the defendants to
 deal with a large orphan share, de min-
about 80% of EPA's response costs, in-
direct costs, and interest of $28 mil-
lion. In addition, a separate settlement
of natural resources damage  claims
will protect 151 acres of wetlands to re-
place those lost at the site. In addition,
the State of New Jersey will not have to
perform  long-term operation  and
maintenance for the next 26 years.
   "ADR was effective in helping the
parties overcome the substantial road-
blocks to settlement, in a way that sup-
ported them in their efforts," noted
David Batson, EPA's ADR Coordina-
tor. "It was also a very innovative situ-
ation, in that Judge Simandle, to his
credit, brought in and supported the
use of ADR.  Through the convening
process, he gave the parties the time
to explore how to  appropriately use
ADR in the case, and then gave them
the time and flexibility to design an ef-
fective ADR process."
                                                                                           Cleanup News  9

       Brownfield  Cleanups Sweetened
       by  the  Tax Code

       by Karl Alvarez & Becky Brooks

             EPA's efforts toward redevelop-
             ing  lands  which  are  aban-
             doned,  idle, or underutilized
       because of real or perceived contami-
       nation have received support from a
       very unlikely source: the U.S.  tax
       code. Well, perhaps it's not so unlikely.
       The tax code can offer financial incen-
       tives on a scale which defies all other
       sources. Section 198 of the tax code
       seeks to bring thousands of brown-
       fields properties back into productive
          Current environmental liability can
       serve as a disincentive to redevelop-
       ment of a former industrial site; less
       uncertainty exists on suburban  or
       rural greenfields. With high density in
       the urban core and existing infra-
       structure  (roads,  sewers, schools,
       mass transit), property values and
       taxes are usually higher in our inner
cities. Demolition or restoration of ex-
isting buildings and structures is often
more expensive than new construc-
tion. The bottom  line:  all of  these
trends serve as incentives to abandon
the city core in favor of less developed
suburban areas outside of town.
   In an effort  to minimize  such
trends and encourage brownfields re-
development, on August 5,1997, Pres-
ident Clinton  signed into law the Tax-
payer Relief  Act  of 1997,  which
included the  Brownfields Tax Incen-
tive provisions. The changes to the tax
code are designed to "level the playing
field" for brownfields properties. The
brownfields incentive allows taxpay-
ers to deduct from their net income
the costs of certain cleanup activities
in targeted areas in the year incurred.
Four eligibility criteria focus the in-
centive's impact on  lower income,
urban,  commercial/industrial  areas.
Eligible property must fall into at least
one of the following four categories:

1. Census tracts with a poverty rate
   of 20% or more.
2. Census tracts with populations of
   less than  2,000  people which  are
   more than 75% zoned commer-
   cial/industrial and adjacent to a
   census tract with a poverty rate of
   20% or more.
3. All federally designated Empower-
   ment Zones or Enterprise  Com-
4. EPA Brownfields Pilot sites  desig-
   nated prior to February 1997.

To assist taxpayers in determining the
eligibility of  their  specific property,
EPA has developed a fact sheet which
details all available sources of criteria
information. This fact sheet  can be
found, along with a series of additional
tax incentive information,  on the
Brownfields  home page  at  http://
www. epago v/b rownfi elds.
   On March 5, 1999, OSWER's Out-
reach and Special Projects Staff, which
is  responsible for  implementing the
Brownfields program, hosted a Na-
tional  Brownfields  Tax  Incentive
Roundtable  in Chicago, IL,  to  hear
from brownfields stakeholders on the
incentive. Bankers, lawyers,  commu-
nity activists, developers, accountants,
insurers, engineers, analysts, and pub-
lic officials  from federal,  state, and
local governments began  a dialogue
on strategies to educate taxpayers on
the incentive, increase use of the in-
centive, and strengthen the incentive
based on market and business needs.
A  summary of the Roundtable pro-
ceedings and tools for educating tax-
payers and stakeholders will soon be
available on  the  Brownfields home
   The Brownfields Tax Incentive is
an additional tool in  local efforts  to
marshal funding for revitalization and
redevelopment efforts. We recognize
that the incentive will not create rede-
velopment of brownfields, but at least
it can help "sweeten" a potential real
estate redevelopment project.

Karl Alvarez & Becky Brooks work on
the Outreach and Special Projects Staff
of the  Office of Solid  Waste and Emer-
gency Response.
1O Cleanup News

 1999  National  Notable
Achievements  Awarded
      On April 15, EPA awarded the
      1999 National Notable Achieve-
      ment  Awards to  outstanding
perfomers  in the Superfund, RCRA
Corrective Action, and Superfund En-
forcement programs.
   Superfund Enforcement winners in-
cluded the all-star cast of the Helen
Kramer Landfill in EPA Region 2:
Kathleen Abdus-Salaam, David Batson,
Lawrence Granite, Delmar Karlen, Bev-
erly Kolenberg, and Deborah Schwenk,
with assistance from Department of Jus-
tice staff John Joseph, Francis Lyons,
and Deborah Reyher, and John Pose-
rina from Army  Corps of Engineers.
(See story on page 9.)
   In the category of Technical En-
forcer, the award went to Leo J. Mullin
who has been involved in some of the
largest, most complicated,  and most
publicly prominent sites in Region 3, in-
cluding the Keystone Sanitation Site
and Palmerton Zinc  Pile Superfund
Site. Leo has been a  leader in imple-
menting Superfund administrative re-
forms, often in a creative manner. In the
Keystone case, Leo was able to share
his analysis of a PRP's financial condi-
tion with other PRPs, thereby convinc-
ing them that the ability-to-pay settle-
ment represented a fair payment based
on limited financial resources.
   The  Legal Enforcer winner was
Peter M. Felitti of Region  5 for han-
dling an almost superhuman workload
and achieving superlative results.
Peter's work at Superfund sites has in-
corporated as many administrative re-
forms as possible, in an effort to accel-
erate work at sites,  allay community
frustration, eliminate transaction costs
for peripheral parties,  and expedi-
tiously recover Superfund monies.
   In addition to handling six Super-
Superfund On-Scene Coordinator of the
Year. BUI Steuteville, Region 3, flanked by
Tim Fields, Acting Ass is tant Adminis tra-
torforOSWER, and Peter Robertson,
Acting Deputy Administrator of'ER.
fund cases, Peter led a TSCA initiative
that resulted in the filing of over 60 ad-
ministrative penalty actions, filed  a
multi-media complaint at the  LTV
Steel site, negotiated two administra-
tive orders for air violations by Gen-
eral Motors, and negotiated adminis-
trative settlements in both an EPCRA
and RCRA matter.
   William Steuteville, Region 3, re-
ceived the 1998 On-Scene Coordinator
award for his remarkable control over
complex cleanup  and community is-
sues during two  removal actions in
1998 at the Diamond Salvage site in
Wilmington, DE, and the Unattributed
Residential Lead site in Portsmouth,
VA. These  complex sites required
high profile removal actions and con-
cerned multiple environmental justice
issues. Ensuring open communication
and quickly determining the source of
contamination, Bill won the trust of
the Mayors' offices, City Council, com-
munity groups, and residents in Wilm-
ington and Portsmouth.
   Remedial Project Manager of the
Year was Robert L. Stites, Region 8
for his outstanding efforts at the  Hill
Air Force Base in  Ogden, Utah,  and
Warren Air Force Base in Wyoming.
Recipients of the Outstanding Adminis-
trative Innovation Award  (RCRA CA)
included Carl Warren, Region 9, who
turned a complex cleanup assignment
at the Chevron refinery site in Hawaii
into a resounding success. Working in
partnership, Chevron, EPA and  the
State of Hawaii moved from diagnosis
to remedy in just three years — several
years faster than at comparable sites —
which saved Chevron $7-10 million.
Word of the partnership's collaborative
efforts has spread through the re-
gional industry and another Hawaii re-
finery has inquired about doing a simi-
lar voluntary corrective action.
  Congratulations to the other EPA award winners as well:
  Stakeholder Involvement: Stephanie Carr,
    Region 1
  Leader/Mentor of the Year: Maureen
    Essenthier, Region 3
  Administrative Innovation: Estena McGhee,
    Region 3 (joint)
  Teams of the Year: Safety Kleen Chester
    Remediation Team, Region 3, and RCRA
    Amoco-Casper CATeam, Region 8
  Environmental Indicator: Lael Butler, Region 4
     Technical Innovation: Carol Ann Witt-Smith,
       Region 5
     Friend of the State: Ray Saracino, Region 9
     Site Assessment Manager: Dennis Munhall,
       Region 2
     Grants/Contracts: Carol Hemington, Region 2
     Teams: Tar Creek, Eagle Richer, Region 6
     Community Involvement Coordinator: Diana
       Hammer, Region 8
     Lead/Mentor: Laura Williams, Region 8
                                                                                             Cleanup News 11

Upcoming Internal
EPA Meetings
Contact: Bob Cianciarulo, 617-918-1330 or
June 22-24
Superfund Focus Forum
Albuquerque, NM

July 20-22
Brownfields Coordinators
Boston, MA

July 27-29
National Superfund Policy Managers
Kansas City,  MO

August 17-19
Wildlife Applications  to
Remediation Decision-Making
Denver, CO
Sponsors:NIEHS, Texas Tech University, ATSDR, US Air
Force,EPA Region 8, DOE. Focus on wildlife exposure
and effects, and their rde in remediation prioritization
success criteria. Contact: Ellen H. Roots, Institute of
Environmental and Human Health, 806-885-4549

Sept. 13-15
Industrial Site Recycling Conference
Pittsburgh, PA
Sponsors:EPA, PA Dept. Env. Protection, Society of
Western PA.Contact: Engineering Society of Western
PA,412-261 -0710,http://www.eswp.com.
Alternative Dispute

Emergency Response,
Compensation, and
Liability Act
(Superfund law)

Department of Energy

Department of Justice

Emergency Planning and
Community Right-To-
                                                           Cleanup News is a publication of EPA's Office
                                                           of Site Remediation Enforcement, in cooperation
                                                           with the Office of Emergency Response and
                                                           Remediation,Office of Solid Waste,Office of
                                                           Underground Storage Tanks, Chemical Emergency
                                                           Preparedness and Prevention Office, and the
                                                           Technology and Innovation Office.
National Priorities List

Office of Site Remediation
Enforcement (EPA)

Potentially Responsible

Resource Conservation
and Recovery Act
(hazardous waste)

Environmental Project
                                     EPA Review Board: Rick Popino, Paul Connor,
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