Office of Site Remediation Enforcement (2271 A) Washington, DC 20460 Spring 2005 EPA300-N-05-004 Issue #20 &EPA United States Environmental Protection Agency inside ^^^^^^^^^^••••^H^^^^Er? Notable Achievement Awards 1C Strategy Plymouth State Fines Triad Approach Southeast Federal Center Remedy In the Courts Cooper v. Aviall Update Companies Fined Tidbits Hazardous Waste Rules Call for Presentations Calendar Glossary cleanupne CleanupNews is a quarterly newsletter highlighting hazardous waste cleanup cases, policies, settlements and technologies. Bush Selects Johnson as Administrator President George W. Bush announces Stephen Johnson as his nominee for EPA Administrator in the Roosevelt Room at the White House Friday, March 4, 2005. Current Acting EPA Ad- ministrator Stephen Johnson has been se- lected for the permanent post by President Bush. At the March 4th nomination announcement at the White House, the President described Johnson as "a talented scientist and skilled manager with a lifelong commitment to en- vironmental stewardship" and welcomed his experience as a sci- entist in helping "set clear, ratio- nal standards for environmental quality." In his remarks, Johnson said that he was "deeply honored" by the nomination. He also ac- knowledged the contributions of former Administrators Michael Leavitt, now head of Health and Human Services, and Christine Todd Whitman. If confirmed by the Senate, Johnson would be the first EPA employee to become Administrator. In his 24 years of service with the Agency, he has held a number of posts, including Deputy EPA Ad- ministrator and Assistant Admin- istrator of EPAs Office of Preven- tion, Pesticides, and Toxic Sub- stances. Johnson's biography is available at: http://www.epa.gov/adminweb/ administrator/biography .htm. EPA Marking 35th Anniversary of Earth Day In a 1980 EPA Journal ar- ticle, Senator Gaylord Nelson, Earth Day founder, said his main motivation for cre- ating Earth Day "was to show the political leadership of the Nation that there was broad and deep sup- port for the environmental move- continued on page 3 & Printed on recycled paper ------- 2005 National Notable Achievement Award Winners to be Honored The Office of Superfund Remediation and Technology Innovation has announcedthe winners of the 2005 National Notable Achievement Awards. The recipients will be honored in a ceremony at 1:30 pm at the Crystal Plaza Hotel in Crys- tal City, Virginia on April 27, 2005. Award winners will receive a cash award and plaque. The Notable Achievement Awards acknowledge individual and collabo- rative Regional achievements in: Brownfields, Emergency Manage- ment, Superfund, Superfund Enforce- ment, RCRA Corrective Action. Regional Science, Underground Storage Tanks, Federal Facilities Response, Environmental Justice. Cross Program Land Revitaliza- tion, and Resource Conservation Challenge. Here are some high- lights: would bring an enforcement action. For the GE-Pittsfield Site, he revised the consent decree's model deed restric- tions to facilitate redevelopment while protecting human health and the envi- ronment. Superfund - Technical Enforcer Technical Enforcer of the Year Carlyn Winter Prisk of Region 3's Hazardous Site Cleanup Division. Carlyn is in- volved in all parts of enforcement, in- cluding PRP investigations and settle- ment negotiations. She has effectively used ability to pay evaluations to in- The winners of the Enforcement Team award used mediation to achieve a consent decree for the Tennessee Products Superfund Site worth more than $23 million. Superfund - Legal Enforcer Each year, the Agency gives four awards for Superfund Enforcement: Legal Enforcer, Technical Enforcer. Financial Management, and Enforce- ment Team. This year's Legal En- forcer award will be presented to John Kilborn of Region 1's Office of Envi- ronmental Stewardship, Superfund Legal Office. John used his real es- tate expertise to assist with the rede- velopment of the Raymark Site in Stratford, Connecticut, including en- couraging a local bank to use "green building" principles when construct- ing a new branch on the former site. He also crafted a "comfort letter" to municipalities that were concerned about converting former railroad tracks to bike trails for fear that EPA vestigate potentially responsible par- ties (PRPs). For the AIW Frank Site, Carlyn discovered that the PRP was gambling significant sums of money while asserting an inability to pay EPA for costs at the site. In addition, Carlyn helped identify PRPs to the Maryland Sand Gravel & Stone Site and negoti- ated a consent decree worth over $20 million. Superfund - Financial Manage- ment Team The Region 3 Special Accounts Man- agement Team—Laura Janson, Bar- bara Borden, Linda Baric, Leslie Vassallo, Millie DeLeon-Ramos, Robin Faux—will receive the Financial Man- agement Team of the Year Award for reviewing all Region 3 special accounts. with a combined worth of $54 million. Special accounts are Superfund sub- accounts containing settlement money to be used at particular sites, and in some cases money remains unused in accounts. The team held site-specific meetings for each account, identified more effective ways to manage the accounts, and produced comprehen- sive site-by-site analysis. They iden- tified 24 out of the 32 accounts re- viewed that could be paid down, for a payroll benefit of nearly $1 million. They also developed procedures for managing special accounts that can be adopted by other Regions. Superfund - Enforcement Team The winners of the Enforcement Team Award accomplished a con- sent decree for the Tennessee Prod- ucts Superfund Site in Chatta- nooga, Tennessee worth over $23 million. The consent decree requires the potentially responsible parties to perform the remedy and reimburse EPA for some of its past costs. The team members from EPA Region 4— Nestor Young, Janice Thomas, Cheryl Smout, Kent Mayo, William Sapp. and Stacey Haire—were able to con- vince the defendants to settle because they assembled and presented com- pelling evidence in the negotiations. The team, assisted by David Batson of EPA's Conflict Prevention and Reso- lution Center, also effectively used alternative dispute resolution to ne- gotiate the consent decree, thereby affording lengthy and costly litigation. For additional information, contact Dr. Richard W. Popino, (202) 564- 5136. cleanupnews ------- Earth Day, continued from page 1 ment." Reflecting back on that first Earth Day, April 22, 1970, and the nearly 20 million people that partici- pated, Nelson said that even he was surprised by the overwhelming public support. Today, several hundred million par- ticipants from over 100 countries join in Earth Day activities each year, from cleanup efforts to environmental film festivals. If you are interested in a volunteer opportunity or participating in an Earth Day event, the Earth Day Network, available online at: http:// www.earthday.net/programs/find/ searchEvent.aspx, offers an extensive list of US and international events. EPA will be involvedin many events across the United States. EPA Re- gion 3 and the Fairmount Park Com- mission will host a special 35th An- niversary Earth Day Celebration in Center City, Philadelphia. The edu- cational event, featuring regional en- vironmental organizations and inter- active exhibits, will take place in Love Park (15th and JFK Boulevard) be- tween 10 am and 2 pm on April 22, 2005. For additional information, contact Jordan Parman at Darman.iordan@eDa.gov. And EPA Earth Day founder Gaylord Nelson (right) with Administrator William K. Re illy, Earth Day 1990. Region 2 will present its Environmen- tal Quality Awards honoring individual and group achievements in late April. Information regarding the awards is available at: http://www.epa.gov/re- gion2/news/2005/05006.htm. Earth Day Resources EPAs Earth Day website at: http://www.epa.gov/earthday provides a variety of information resources. EPAs Superfund Office has a kids Earth Day page with a recom- mended reading list at: http://www.epa.gov/superfund/kids/ earthdav.htm. Region 5 has a "Happy Earth Day Coloring and Activities Book," http://www.epa.gov/region5/pubhcations/happy/happy.htm US Army Environmental Center's Earth Day website at: http:// aec.army.mil/usaec/publicaffairs/earthdayOO.html offers educa- tional materials, including a "disaster cleanup exercise." Institutional Controls Implementation Strategy Announced The Office of Site Remediation Enforcement, the Office of Superfund Remediation and Technology Innova- tion and the 10 EPA Regional Offices have launched a nationwide effort to review institutional controls (ICs) at all Superfund sites where remedy con- struction activities have been com- pleted. ICs are non-engineeredinstru- ments, such as administrative and legal controls, that help minimize hu- man exposure to contamination and protect the integrity of the remedy. The offices and Regions announced a strat- egy to review ICs in a September 2004 memorandum, "Strategy to Ensure In- stitutional Controls Implementation at Superfund Sites." The strategy calls for identifying.priority sites with poten- tial 1C issues and developing Region- specific action plans; outlines site-spe- cific follow-up activities; establishes a new 1C coordination and communica- tion structure; and describes steps to improve EPAs capacity for evaluat- ing 1C effectiveness. Through a com- bination of priority reviews and regu- larly scheduled Five-Year Reviews, EPA anticipates a five-year schedule to evaluate all potential 1C issues at Superfund sites where remedy con- struction activities are complete. Recently, EPA has imp roved its ap- proach to ICs by issuing guidance, continued on page 4 cleanupnews 3 ------- Controls, continued from page 3 adding IC-related language to model documents (e.g., the Model RD/RA Consent Decree), developing the Insti- tutional Controls Tracking System (IGTS), identifying both program and legal 1C coordinators for each region. and forming the national Management Advisory Group for ICs. These im- provements, however, have tended to benefit recently remediated sites. The strategy ensures that sites addressed earlier in the Superfund program also receive the benefit of subsequent 1C experience. Because 1C information at older sites is sometimes not cen- tralized or reliable, EPA gathered baseline information about ICs at 899 construction complete sites, and iden- tified and prioritized sites where 1C implementation either had not oc- curred or might have been per- formed incorrectly. EPA expects that evaluation and corrective measures will be initiated at priority sites within one year af- ter issuance of the strategy. EPAis also working on improving 1C use and ensuring that all construction completion sites are critically evalu- atedin the next five year review and all sites in the future receive ad- equate 1C evaluations. In FY 2005. EPA plans to supplement the five- year review and operation and main- tenance plan guidance, provide fo- cused training on ICs and ICTS, and conduct outreach activities to in- volve other parties in identifying and resolving IC-related issues. EPA has also begun developing guidance for Institutional Controls Implemen- tation and Assurance Plans, devel- oping guidance for calculating the full life-cycle costs of ICs, and revising model CERCLA and RCRA enforce- ment documents to reflect new 1C guidance. The memorandum outlining the strategy is available at http:// www.epa.gov/compliance/resources/ policies/cleanup/superfund/ic-strat- egy-04.pdf. For additional information, contact K.C. Schefski, OSRE, (202) 564-8213 or Michael E. Bellot, OSRT1, (703) 603-8905. Plymouth State University Fined for Hazardous Waste Violations EPA has proposed penalizing Plymouth State University $171,050 for hazardous waste violations observed during a June 2003 inspection. Through the inspection. EPA found that the university was not making hazardous waste determina- tions or properly storing waste. There was also a lack of "no smoking" signs. and spill and fire control equipment were not maintained. Universities and colleges typically store hazardous waste for use in labo- ratories and university operations. Region 1 has been aggressively iden- tifying college non-compliance and en- couraging schools to conduct self-au- dits through its College and Univer- sity Initiative, an initiative that re- cently closed. Schools in the Region can still take advantage of EPAs Audit Policy to ensure that they are meeting all federal requirements. For additional information, contact Sheryl Rosner, EPA Region 1, (617) 918-1865or rosner.shervl@eDa.sov. Want to join us in conserving paper? eive CleanupNews by email! It's fast and simple. Go to the CleanupNews page at: , enter your email address, and click "Submit." When a new issue of CleanupNews comes out, you'll receive it in HTML—right to your desktop! Note: Signing up for electronic issues does not automatically cancel your hard copy subscription. Send hard copy subscription change requests to cleanup ------- Triad Approach Streamlines Site Activities and Reduces Costs By Ann Eleanor, Office ofSuperfund Remediation and Technology Innovation EPA's waste programs, and a number of other practitioners in the waste cleanup commu- nity, are exploring the Triad approach to site cleanup. Triad replaces the tra- ditional prescriptive approach to site characterization, cleanup, and moni- toring with a more dynamic and com- prehensive approach that is flexible and recognizes site-specific decisions and data needs. This approach incor- porates advancing science, technology. and lessons-learned from the field. EPA's Technology Innovation Program minedpractitioner experiences for tech- niques leading to successful, effi- cient and less expensive remedial projects. The Triad approach was assembled around the common factor that made projects success- ful: management of all sources of uncertainty in project data. The three elements of Triad—sys- temic project planning, dynamic work strategies, and real-time measure- ment technologies—are integrated to attain more efficient and affordable project management. By including 'if- then' approaches, scientifically sound site models can be developed and cor- rected in real-time, streamlining site activities and cutting life-cycle costs and lifespan by a third or more. Sys- tematic planning keeps all concerned parties informed, involved, and fo- cused on project objectives through- out the cleanup process. Triad was used successfully for the The Navy estimates it saved $2.5 million using the Triad approach for a chlorinated solvent source investigation at Camp Pendleton. Milltown Redevelopment Project for the New Jersey Department of Envi- ronmental Protection. Through sys- tematic planning, stakeholders were continuously involved which enabled efficient resource distribution be- tween planning phases, and the sample collection phase was stream- lined. EPA's Environmental Re- sponse Team used a freeware data- base decision-support tool to manage data and direct real-time sampling for organic compounds and metals. After more than a year of planning, the ac- tual field work took only eight weeks. The redevelopment company is very pleased with the Triad approach and the time saved. The continuously-re- fined conceptual site model has al- lowed the developer to re-examine site reuse and efficiently align reuse de- signs with site conditions. For a chlorinated solvent source in- vestigation at Camp Pendleton Ma- rine Corps Base, this approach helped manage decision uncertainty and ex- pedite the site management pro- cess. Direct-push deployed in situ sensors provided real-time, high- density data sets to delineate sub- surface contamination, confirming a very small solvent mass that regulators readily agreed posed no threat to receptors. The Navy esti- mated that Triad saved $2.5 million and cut the project schedule by three years. Additional information on Triad is available through the Triad Resource Center at: http://www.triadcentral.org. The center contains a growing selec- tion of resources for design, implemen- tation, and legal defensibility of the Triad approach. EPA Proposes Groundwater Remedy for Southeast Federal Center EPA is proposing long-term treatment and monitoring of groundwater and institu- tional controls preventing use of groundwater for drinking water for the Department of Transportation par- cel of Southeast Federal Center. The proposed remedy will eventually re- store groundwater at the site to drink- ing water standards. Drinking water is currently pumped in from a local utility. The Department of Transportation (DOT) parcel constitutes 11 acres of the 55-acre Washington Navy Yard. a former military ordnance produc- tion site on the Anacostia River in DC that is being cleaned up and rede- veloped. Construction of a new 1.35- million-square-foot DOT headquarters at the site began in 2004, following the excavation and removal of contami- nated soils. The building is scheduled to open in 2006. The public comment period for the proposed remedy ends March 28, 2005. cleanupnews 5 ^^^ ------- District Courts Digest Cooper v. Aviall Ruling By David Dowton, Office of Site Remediation Enforcement On December 13, 2004, the Supreme Court held in Cooper Industries v. Aviall Services 125 S. Ct. 577, that the plain language of CERCLA Section 113(f)(l) allows a potentially respon- sible party to seek contribution only "during or following" a "civil ac- tion" under CERCLA Sections 106 or 107(a). Two recent district court decisions cited the Supreme Court's decision when denying private party claims to recover cleanup costs. In AMWMat'ls Testing, Inc v. Town of Babylon, 348F.Supp.2d4 (E.D.N.Y, 2004), the district court denied AMW and the property owner's claim to re- cover costs from the cleanup of haz- ardous substances discovered after a fire in AMWs paint room. The plain- tiffs argued that the Town and local fire department were liable as opera- tors under CERCLA. The plaintiffs asserted causes of action under CERCLA Sections 107 and 113 and certain common law theories. The court held that the plaintiffs: (1) had not offered material evidence that the defendants were CERCLA operators; (2) could not bring a claim under Sec- tion 107 because they were not inno- Two recent New York District Court decisions cite Cooper v. Aviall when denying private party claims to recover cleanup costs. cent parties; and (3) pursuant to Aviall, could not bring a contribution claim under Section 113 because they had incurred cleanup costs voluntarily and in the absence of "judicial or adminis- trative measures to compel cleanup." The Southern District of New York reached the same conclusion on the is- sue of whether a liable party can bring a claim under Section 107. In Elementis Chenis., Inc. v. TH Agriculture & Nutri- tion, 2005 U.S. Dist. LEXIS 1404 (S.D.N.Y., 2005), the district court found that Elementis could not bring a claim under Section 107 to recover costs it had incurred per- forming a voluntary cleanup. Fol- lowing the Supreme Court's Aviall decision, the Plaintiff acknowl- edged in a supplemental brief that it could not recover its vol- untary costs under Section 113(f) because it had not been subject to a Section 106 or 107 action. Elementis maintained. however, its claim under Section 107, arguing that the Aviall deci- sion effectively overruled prior Sec- ond Circuit case law holding that a liable party could not bring such a claim. The Court disagreed and held that Elementis had no valid CERCLA claim under Section 107. For additional information, con- tact David Dowton, OSRE, (202) 564-4228. Companies Fined for Violations of RCRA Order A group of current and former owners of a south Seattle. Washington industrial site will be required to pay $720,250 to EPA for the failure to abide by the cleanup terms of a 1993 Administra- tive Order. This industrial site manu- factured and processed a wide variety of chemicals until closing in April 1991. From the 1930s through 1986, chemical products were manufactured at the site including glues, resins, and hardeners. Beginning in 1952, the fa- cility was usedto make vanillin, which is used in flavoring foods and manu- facturing drugs. These manufactur- ing processes have resulted in a long history of above and below ground re- leases of contaminants such as tolu- ene, arsenic, cadmium, copper, mineral oil, sulfuric acid, and other pollutants. Sampling at the site has detected con- tamination of groundwater flowing into the Lower Duwamish River, a Superfund site. The group of companies which in- clude the current site owner Container Properties LLC., as well as Bayer CropScience (the successor of Rhone- Poulenc Inc.) and Rhodia, Inc., were required by the 1993 Administrative Order, issued under the authority of the Resource Conservation and Recov- ery Act, to follow a work plan to con- struct and operate facilities to prevent contaminants from entering the Lower Duwamish River. The companies failed to comply with several require- ments of the Order, including failing to construct the approved groundwa- ter treatment system and to conduct sampling in accordance with the ap- proved Work Plan. EPA will now con- sider each company as a Significant Non-Complier, a term usedto identify chronic violators or those who deviate substantially from the terms of an or- der. In both 1998 and 2000, the same companies paid penalties of $320,000 and $159,500, respectively, for failing to conduct required cleanup work at this site. For additional information, contact Shawn Blacker, EPA Region 10, b locker. shawn@epa. sov. cleanup ------- Two New Hazardous Waste Rules Finalized By Diane Bartosh, Office of Solid Waste Hazardous Waste Manifest Streamlined On January 27, 2005, EPAimproved the tracking of hazardous waste ship- ments by establishing a nationally standardized manifest form. This new form makes the nation's hazardous waste tracking system more efficient by replacing differing state formats with one national form. This stream- lined approach will benefit waste han- dlers and regulators by reducing the costs and time associated with man- aging multiple forms, while maintain- ing the safety of EPA's well-estab- lished cradle-to-grave hazardous waste tracking system. EPA estimates the change in paper- work burden resulting from this rule will save states and industry between $12-20 million annually. More than 139,000 businesses in approximately 45 industries are expected to achieve time and cost efficiencies through the new tracking system. These busi- nesses ship approximately 12 million tons of hazardous wastes annually and use between 2 and 5 million Hazard- ous Waste Manifests. By using a streamlined and consis- tent national standard, hazardous waste handlers can better track com- plicated shipments, such as container residues, rejected wastes and inter- national shipments. The new form also makes it easier to collect data for hazardous waste reporting. The new form will be phased in over an 18-month transition period. Once the new form is in place, handlers will be able to obtain new forms from any source that has registered with EPA to print and distribute them. The rule was published in the Federal Register March 4, 2005. More information is available at: http://www.epa.gov/ epaoswer/hazwaste/gener/manifest/ index.htm. Some Dye and Pigment Pro- duction Waste Is Listed as Hazardous In a final rule signed on February 15, 2005, EPA took steps to better protect ground water resources and human health by listing certain wastes generated by the dye, pig- Call for Presentations for Brownfields 2005 rownfields 2005 will be held in Denver, Colorado, Novem- ber 2-4. Conference co-sponsors EPA and ICMA are seek- ing suggestions for presentations, sessions, marketplace roundtables, and best practice case studies. Ideas can be submitted online, or there is a "Call for Presentations" form that can down- loaded at: http://www.brownfields2005.org/en/Ideas.aspx. The submission deadline is April 29, 2005. ment, and food, drug and cosmetic in- dustries as hazardous waste K181. While listed hazardous waste must be strictly managed under Subtitle C of the Resources Conservation and Recov- ery Act (RCRA), the Agency is using a flexible regulatory approach that fo- cuses on total quantities of chemical constituents of concern in a waste that present the greatest risk. The K181 listing focuses on seven hazardous con- stituents. Waste that contains less than the specified threshold levels of constitu- ents of concern are not hazardous (e.g.. aniline levels below 9,300 kg/yr). More- over, regulatory exemptions are pro- vided for waste either sent for disposal in landfills that meet specific design standards or treated in an approved combustion unit. Waste that does not qualify for these exemptions, and that meets or exceeds the specified thresh- olds for any of the specific constituents of concern, must be managed as listed hazardous waste K181. These dye and pigment classes are commonly used for coloring textiles, paper, plastics. leather, inks, paints/coatings, food. drugs, and cosmetics. EPA estimates that about 36 facilities annually gen- erate about 36,000 metric tons of po- tentially affected waste. This rule was published in the Federal Register on February 24, 2005. This regulation is a major milestone for EPA because it is the final action resulting from a lawsuit filed by the Environmental Defense Fund (now En- vironmental Defense) in 1989. The lawsuit was filed to enforce EPA's le- gal deadlines under the 1984 Hazard- ous and Solid Waste Amendments for listing hazardous waste. Additional information is available online at: http://www.epa.gov/epaoswer/ hazwaste/id/dyes/index.htm. cleanupnews 7 ------- CO O April 13, 2005 Waterfront Redevelopment Conference and Deal Flow Exhibition New York, NY http://ny-brownfields.com/ index.htm April 20-21, 2005 ASTSWMO Mid-Year Meeting Keystone, CO http://www.astswmo.org May 3-4, 2005 National Corrective Action Conference Denver, CO http://www.nationalcaconf.com/ home.html May 15-19, 2005 2005 International Oil Spill Conference Miami Beach, FL http://www.iosc.org/index.asp July 12-15, 2005 2005 Community Involvement Conference and Training Buffalo, NY http://www.epancic.org/2005/ overview.cfm Glossary ASTSWMO Association of State and Territorial Solid Waste Management Officials CERCLA Comprehensive Environmental Response, Compensation, and Liability Act DOT EPA ICs ICTS OECA Department of Transportation Environmental Protection Agency Institutional controls OSRE OSRTI OSWER PRP RCRA Institutional Controls Tracking System RD/RA Office of Enforcement Compliance and Assurance Office of Site Remediation Enforcement Office of Superfund Remediation and Tecnology Innovation Office of Solid Waste and Emergency Response Potentially Responsible Party Resource Conservation and Recovery Act Remedial Design/Remedial Action cleanupne CleanupNews is a quarterly publication of EPA's Office of Site Remediation Enforcement, in cooperation with the Office of Superfund Remediation and Technology Innovation, Office of Underground Storage Tanks, and Office of Emergency Prevention, Preparedness and Response. Past issues of CleanupNews can be found at http://www.epa.qov/conipliance/ resoiirces/iiewsletters/deaniip deaiiiipnews.htiiil http://www.epa,gov/compliance/about/of"Lv.r./0:, ^^^^^^•••M~~ Richard W. Popino, PhD REM, editor-in-chief EPA Review Board; Diane Bartosh, Paul Connor, Sandra Connors, Karen Ellenberger, Elliott Gilberg, Jeff Heimerman, Kenneth Patterson, Neilima Senjalia, Suzanne Wells Christine Rueter, Don Allen, and Jon Kallen DPRA Inc., writers Mary Spencer, DPRA Inc., designer To comment on the newsletter contact Richard W. Popino, PhD REM, atMC-2271A, U.S. EPA, 1200 Pennsylva- nia Ave., NW, Washington, DC 20460, emaihpopino.rick@epa.gov. To be added or deleted from the subscriber list, contact Christine Rueter at: christine.rueter@dpra.com To receive CleanupNews by email, subscribe at http://www.epa.gov/complianc6 cleanup.html. 008$ ^uATj^ joj jfyjuua^ ssauisng I^PIJJO 9E-9'ON Ill/\iy3d VcB aiVdS33d1S39VlSOd ssvioisyid 09tOS OQ ' (VILLZ) AoueSy uoi ------- |