United States Environmental Protection Agency Office of Site Remediation Enforcement (2271 A) Washington, DC 20460 SEPA cleanupnews Spring 1999 EPA300-N-99-008 Issue #2 inside 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 ------- o o (0 ;o O) 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 parties. 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- essary. 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 B 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 sites). 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- pared. 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: www.epa.gov/epaoswer/ osw/y2k/stories.htm 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:// www.epa.gov/yeor2000. Cleanup News 3 ------- 0) a Superfund Reforms continued from page 1 Here is a rundown of the report's find- ings. Greater PRP Involvement 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 Fund. 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 asking. • 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. Community Involvement 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/ superfund/programs/refoms/indexMm. Cleanup News 5 ------- I 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 property; • 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; and • 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 Publications 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 /ncepihom/order- pub.html. 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- 98-009. A Civil Action continued from page 1 They include: http://wwwmovies. com/ cMactbn (Touchstone Pictures) ;MWW. cM-actbn.com (WR Grace); www2. shore.net/~dkennedy/woburn.html (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- 553-7672. 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 emergencies; 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 activities: • 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- dents. • 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- tion. • 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. 2 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. 0) £ $ O 0) NEJAC Subcommittee Holds Fact-finding Tour of Waste Transfer Stations 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 use. 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- munities. 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 page. 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: RCRA 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 SUPERFUND 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 ------- I 0) 0) o Upcoming Internal EPA Meetings Contact: Bob Cianciarulo, 617-918-1330 or cianciarulo.bob@epa.gov. 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 x230,http://www.iehh.ttu.edu/wildlife. 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. Glossary ADR CERCLA Alternative Dispute Resolution Comprehensive Emergency Response, Compensation, and Liability Act (Superfund law) Department of Energy Department of Justice Emergency Planning and Community Right-To- KnowActof1986 eleanupnews 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. NPL OSRE PRP RCRA SEP National Priorities List (Superfund) Office of Site Remediation Enforcement (EPA) Potentially Responsible Party Resource Conservation and Recovery Act (hazardous waste) Supplemental Environmental Project EPA Review Board: Rick Popino, Paul Connor, Reggie Cheatham, Suzanne Wells, Jeff Heimerman, Julie Vanden Bosch Gilah Langner, writer Robin Foster, SciComm lnc.,designer To comment on the newsletter, contact Rick Popino (MC-2271A), U.S. EPA.401 M Street SW, Washington.DC 20460,fax:202-564-0094,e-mail:popino.rick@epa.gov. For mailing list inquiries.contact Sarah Wallis.SciComm Inc.,7735 Old Georgetown Rd, Bethesda.MD 20814,fax:301 -652-7001 ,e-mail:swallis@scicomm.com. United States Environmental Protection Agency (2271A) Washington, DC 20460 Official Business Penalty for Private Use S300 FIRST CLASS POSTAGE & FEES PAID EPA PERMIT NO. G-35 Address Service Requested ------- |