Office of Site Remediation
                              Enforcement (22 71 A)
                              Washington, DC 20460
                                      Winter 2003
                                      EPA 300-N-03-0006
                                      Issue #11
SEPA
    United States
    Environmental Protection
    Agency
       cleanupnews
 inside

 News             2
   New Director of OSRE
   Libby Asbestos Update
   Fox River          3
   Cameron Station      4
   Forest Glen Redevelopment

 In the Courts          5
   S40M Sought from New Orleans
   RCRA Violators
   F.AB Grants
   US v. Alcan Appeal     6
   PRP Ordered to Pay

 News and Notes       7
   Regional Grant Application
   $13.5MDOIDebt

 Calendar
 Glossary
8
 Cleanup News ;'s a quarterly
 newsletter highlighting hazardous
 waste cleanup cases, policies,
 settlements, and technologies.
             Governor Whitman
             Announces  Brownfields
             Federal Partnership
             Action Agenda at
             Brownfields 2002
             Interagency Partnership Realized through New Memorandum of
             Understanding Between EPA and NOAA
                EPA Administrator Christie
                Todd Whitman unveiled
                the  new Brownfields Federal
             Partnership Action Agenda in remarks
             at Brownfields 2002, "Investing in the
             Future," on November 13, 2002 in
             Charlotte, North Carolina. The inter-
             agency agreement seeks to strengthen
             existing partnerships and form  new
             ones between EPA and 21 other fed-
eral agencies that have, in the
Administrator's words, "a vested in-
terest in reclaiming brownfields."
Among the agencies participating in
the agreement are the Departments
of Labor, the Interior, Justice, and
Housing and Urban Development, the
U.S. Army Corps of Engineers, and the
National Oceanic and Atmospheric
            continued on page 2
                              Breen  New OSWER
                              Principal Deputy Assistant
                              Administrator

                The Office of Solid Waste and
                Emergency Response (OSWER)
                has gained a new Principal
             Deputy Assistant Administrator.
             Barry Breen joined OSWER in Decem-
             ber 2002 and is now the senior career
             official responsible for managing the
             Agency's hazardous and solid waste
             programs including RCRA corrective
             action, Superfund, federal facilities
             cleanup and redevelopment, Brownfields,
             oil spill prevention and response,
             chemical accident prevention and re-
             sponse, underground storage tank,
             and homeland security programs.
               Mr. Breen began his career at
             EPA in the Federal Facilities Enforce-
ment Office before moving to the
(OSRE).  He was the Director of
OSRE from 1996 until his recent
move to OSWER. Before joining
EPA, he was Editor-in-Chief of Envi-
ronmental Law Reporter, the Direc-
tor of Publications at Environmen-
tal Law Institute, a trial attorney in
the Justice Department's criminal di-
vision, and Assistant to the General
Counsel for the Army.
   Mr. Breen's undergraduate de-
gree is from Princeton University
and his law degree is from Harvard
Law School. He teaches environmen-
tal law at American University as an
adjunct professor.
                                                                         Printed on recycled paper

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en
New Director  of OSRE,
Susan  Bromm
              Libby Asbestos
              Update
                   Taking the helm after years of
                   experience with OSRE as
                   Deputy Director and 20 years
              overall experience with EPA, Susan
              Bromm has deservedly assumed the
              position of Director of OSRE.  Her
              new responsibilities include oversee-
              ing enforcement aspects of EPA's haz-
              ardous waste cleanup programs includ-
              ing CERCLA (Superfund), RCRA cor-
              rective action, Underground Storage
              Tanks, and Oil Pollution Act. Bromm
              replaces Barry Breen, who recently
              became the Principal Deputy Assis-
              tant Administrator of OSWER.
                                    In addition to her previous  and
                                current leadership roles in OSRE,
                                Bromm served in the Waste Programs
                                Enforcement office, formerly part of
                                OSWER.  She brings a wealth of en-
                                forcement knowledge to her new  role
                                as OSRE Director, having helped estab-
                                lish policies on waste enforcement,  pen-
                                alties, and site cleanup while directing
                                the RCRA enforcement program.
                                Bromm holds  a law degree from
                                Georgetown University Law Center and
                                is a member of the District of Colum-
                                bia bar.
              Interagency
              Agreement
                 continued from page 1

            Administration (NOAA).  There are
            already 100 "specific commitments"
            to partnering  in place under the
            agreement, including a commitment
            by NOAA to redevelop and reuse
            ports and harbors. EPA and NOAA
            signed a Memorandum of Under-
            standing (MOU) on January 14, 2003
            in New Bedford,
            Massachusetts.
            This MOU  reaf-
            firms the partner-
            ship on brownfields
            between  the two
            agencies  that has
            been in place since
            1997.  Marianne
            Lament Horinko,
            Assistant Adminis-
            trator for OSWER,
            signed  the MOU  on behalf of EPA.
            NOAA was represented by Dr. James
            Mahoney, Deputy Administrator and
            Assistant Secretary of Commerce for
            Oceans and Atmosphere.  The MOU
            seeks to  accelerate brownfields re-
            development of coastal communi-
            ties—including the City of New
            Bedford where the MOU was signed—
                                through the collaborative efforts of both
                                agencies.  As the government agency
                                overseeing coastal  and marine re-
                                sources, NOAA plays a valuable role in
                                redeveloping coastal areas while protect-
                                ing coastal resources.  Many coastal
                                communities have been reliant on the
                                fishing industry and manufacturing, two
                                sectors hit by recent economic trends
                                and international competition. Selected
                                as a Brownfields Showcase Community
                                in 1997, New Bedford has explored tour-
                                ism as one tool to revitalize their harbor
                                                      and fuel the lo-
                   "Every time I see a ballfield
                   where a  brownfield once stood, or
                   a bustling office building where
                   an empty and abandoned factory
                   once loomed, I am reminded of
                   how much good we can do when
                   we work together as partners."
                                Christie Todd Whitman
cal economy.
In addition to
the commit-
ments  out-
lined  in the
MOU,  NOAA
will continue to
provide the
city of New
Bedford  with
                                                      a Brownfields
                                Showcase Community Coordinator who
                                will assist their brownfields initiative.
                                    The Small Business Liability Relief
                                and  Brownfields Revitalization Act,
                                signed into law by President Bush on
                                January 11, 2002, encouraged strong
                                interagency partnerships and led to the
                                specific commitments of the Brownfields
                                Federal Partnership Action Agenda.
In December 19, 2002, a federal judge
in Missoula, Montana found defen-
dants W.R. Grace & Company and
Kootenai Development Corporation
(KDC) liable under CERCLA for
cleanup costs associated with the
Libby Asbestos Superfund Site.
Judge Donald Molloy did not grant
summary judgment  on the amount
of liability.  He ruled that the amount
cannot be determined until a num-
ber of issues are resolved. EPA has
spent over $55  million in response
costs since November 1999 and has
continued emergency response activi-
ties since the site was proposed to
the NPL in February 2002. Emer-
gency remediation and restoration
work continues and should be largely
complete in 2003.  The cost recov-
ery trial began  January 6,  2003, in
Missoula.
   In ruling, Judge  Molloy rejected
three key arguments made by W.R.
Grace & Company: (1) that the EPA's
removal action was arbitrary and ca-
pricious and therefore inconsistent
with the National Contingency Plan
(NCP); (2) that the  Agency should
have conducted a remedial action to
address asbestos contamination at
the former vermiculite mine and pro-
cessing facilities rather  than a re-
moval action; and (3) that EPA ex-
ceeded a statutory limit for cleanup
actions, which would have limited the
Agency to $2 million/12  months.
Regarding the final argument, Judge
Molloy found the  Agency's actions
appropriate given the immediate and
substantial threat to public health and
welfare.  Removal actions had to be
conducted at most of the area schools.
   Vermiculite was  mined and pro-
cessed in and around the Libby site
from 1919 until the mine was closed
in 1990.  W.R. Grace & Company
owned the mine from 1963 until
1990.  KDC bought the mine site and
portions of former processing  sites


                continued on page 7
        cleanupnews

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Cleanup  Decision  Announced  for
Lower  Fox  River
                                       0)
      On January 7, 2003, EPA and
      the Wisconsin Department of
      Natural Resources (DNR)
signed a Record of Decision (ROD) es-
tablishing the final cleanup  plan for
two operable units of the Lower Fox
River site:  the Little Lake Butte des
Morts and the Appleton to Little Rap-
ids sections of the Lower Fox River.
The entire Lower Fox River site in-
cludes a total of 5 operable units (OUs)
and spans the length of the Lower Fox
River (approximately 39 miles) and part
of Green Bay.
    The selected
remedy for Little
Lake  Butte des
Morts  (GUI) in-
cludes  hydraulic
dredging of 784,000
cubic yards of con-
taminated sedi-
ment; dewatering
the sediment, treat
ing the water, and
restoring the treated
water to the river;
and disposal of the
sediment in an ap-
proved landfill.
The estimated cost of remediating
Little Lake  Butte des Morts is $66.2
million. Natural recovery has been
selected as the remedy  for the
Appleton to Little Rapids section of
the Lower Fox River (OU2),  at an es-
timated cost of $9 million.  Some
PCBs were removed from this area be-
tween 1998 and 1999, and it was de-
termined that actively cleaning this
area would not significantly reduce risk
to human health or the environment.
Also, the PCB levels in the Appleton
to Little Rapids reach are close to pro-
tective levels.
    A ROD is expected for the remain-
ing three operable units in June 2003.

Potentially Responsible Parties
Identified

Green  Bay  and the  Lower Fox River
have suffered the environmental con-
                                 sequences of years of logging and pa-
                                 per manufacturing  in the region.
                                 Seven paper mills have been identi-
                                 fied as potentially responsible parties
                                 in the  PCB contamination of the
                                 Lower Fox River and Green Bay, which
                                 occurred between 1954  and  1971.
                                 PCBs generated during the manufac-
                                 turing  and recycling of carbonless
                                 copy paper were dumped into the
                                 Lower Fox River  and eventually mi-
                                 grated to Green Bay.
                                     Weighing  concerns about  losing
                                                                          2002
                  The Wisconsin DNR fish advisory handbook currently advises certain limitations on
                  fish consumption due to the PCB contamination.  After cleanup of the Lower Fox River
                  is completed, some fish advisories will eventually be lifted.
                                 jobs in the region against effective
                                 cleanup, several state legislators in De-
                                 cember 2002 suggested that regulators
                                 consider mediation with the  poten-
                                 tially responsible parties rather than
                                 enforcement. All calls for a third-party
                                 mediator have been  rejected by the
                                 Wisconsin DNR, the lead agency at
                                 the site.

                                 One Key Cleanup Goal:  Lift
                                 Existing Fish Advisories

                                 Green Bay and the Lower Fox River
                                 are popular with recreational and sub-
                                 sistence  fishermen, though enthusi-
                                 asm about catches is dampened by fish
                                 consumption advisories. After dredg-
                                 ing and removing contaminated sedi-
                                 ment from the Lower Fox River, the
                                 Wisconsin DNR and EPA hope to be
                                 able to lift the existing fish consump-
                                 tion advisories for the Little Lake
Butte des Morts and eventually other
areas.  Current estimates are that
fishing advisories for Little Lake
Butte des Morts could be lifted 1-3
years after cleanup is complete since
the selected remedy includes aggres-
sively removing contamination.  It
may be as much as 100 years before
recreational fishing advisories posted
for Green Bay, currently selected for
natural recovery, are lifted. Fish con-
sumption advisories  have been  in
place in the region since 1976.
                 "Choose Wisely:
             A Health Guide for
             Eating Fish in Wis-
             consin," a publica-
             tion created by Wis-
             consin  DNR,  ex-
             plains the current
             fish advisories to the
             general public. It ad-
             vises  consuming no
             more than one meal
             a month or 12 meals
             per year of walleye,
             northern pike, white
             bass, white  perch,
             and  smallmouth
             bass  from the area
of the  Lower Fox River between
Little Lake Butte des Morts to the
dam at DePere.   The advisory ad-
vises avoiding consumption of carp
from this area altogether.

U.S. Army Corps of Engineers
May Play Role in Cleanup

Pending approval by the House-Sen-
ate Conference Committee, the U.S.
Senate agreed in late January  to
fund a  $200,000 U.S. Army Corps
of Engineers study of the site. The
study may ultimately result in the
Corps  partnering with Wisconsin
DNR and EPA.

    For more information, contact
James  Hahnenberg, EPA Region 5,
(312) 353 4213.
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o
c
            Cameron Station  Transformed
        With newly planted trees
        and recently built houses,
        Cameron Station-a 2,000-
unit planned community of single-fam-
ily homes, town homes, and condomini-
ums—transfigures land in Alexandria,
Virginia  once occupied by an Army
base of the same name.  The 164-acre
area includes the housing community
and two neighboring City of Alexan-
dria parks.
   Cameron Station military com-
plex, which served as a general depot
beginning in 1941 and eventually be-
came the Headquarters  for the De-
fense Logistics Agency, was slated
for closure in 1988.  During closure
activities at the site, the Army identi-
fied PCBs, dioxin,  lead, pesticides,
petroleum hydrocarbons, trichloroet-
hylene, and chlorinated hydrocarbons
in soil and groundwater at the site.
A total of 12 operable units were de-
fined for the site. Cleanup activities
included removing leaking under-
ground storage tanks and PCBs from
transformers,  excavating contami-
nated soil, cleaning sewer traps, and
asbestos removal.  A groundwater
treatment system was constructed to
                                            treat groundwater, which was found
                                            to be contaminated with trichloroeth-
                                            ylene.  Activities ceased at the com-
                                            plex and the  installation officially
closed September 30, 1995.  The
Army, state, and EPA continue to
monitor the groundwater treatment
post-closure.
    Local developer Greenvest L.C.
recognized the value of redeveloping
the land when the firm purchased 101
acres of the property from the Army
in 1996.  The Army gave the remain-
ing 63 acres of the property to the
City of Alexandria to establish a park.
Two parks have been established from
the parcel of land given to the City
of Alexandria, one on either side
of the Cameron Station community.
The parks offer residents of Cameron
Station many recreational opportuni-
ties, and through additional planned
development,  will include athletic
fields, tennis, volleyball, and  basket-
ball courts, and a regional bike trail
along the Backlick Run Stream.
   For more information contact, Mark
Stephens, EPA Region 3, (215) 814-3353.
            Innovative Approach  Proves  Key  to
            Forest  Glen  Redevelopment
                The remedy for the Forest Glen
                Mobile Home Subdivision
                Superfund Site is a first in the
            State of New York. Its remedy al-
            lows for productive land reuse, made
            possible by a groundbreaking part-
            nership between the main PRP and
            a private real estate investment fund.
            Cherokee Investment  Partners
            worked with Goodyear Tire & Rub-
            ber Company, EPA, and  state  and
            local government to ensure that the
            site  was developed.  According to
            Gloria Sosa, the Site RPM, "Eventu-
            ally [Goodyear] would have settled, but
            understanding that the site would be
            put back into productive  use really
            helped them to settle."
              The original remedy  called for
            soils contaminated with polycyclic aro-
            matic hydrocarbons and semi-volatile
            organic compounds to be contained in
            a single mound and fenced off.  When
                                Cherokee and Goodyear expressed
                                interest in developing the land, the
                                Town of Niagara and the City of
                                Niagara Falls (the site straddles both)
                                worked together to rezone the  site to
                                support commercial/light industrial
                                development.  The ROD was rewrit-
                                ten to reflect the zoning change.
                                   EPA  and  Goodyear  reached a
                                settlement in January 2001. Goodyear
                                agreed to reimburse EPA $9 million
                                for incurred cleanup costs and dam-
                                age to natural resources resulting from
                                the contamination. They also agreed
                                to pay $16 million to cover  the remain-
                                ing cleanup costs. This figure includes
                                the groundwater remedy (i.e., con-
                                structing groundwater extraction wells
                                and a system  for conveying the ex-
                                tracted water to an  off-site publicly
                                owned treatment works and construc-
                                tion of a flat, impermeable cap over
                                contaminated soil. Once the cap  is con-
                                structed, Goodyear has plans to erect
                                one building on top of it, while Chero-
                                kee has the option of building three
                                more. The structures will most likely
                                accommodate light manufacturing op-
                                erations or warehousing facilities.
                                   The soil and  groundwater rem-
                                edies are due to be completed in Sep-
                                tember 2003.  The soil remedy was
                                originally due to be completed in May
                                but has been delayed by severe win-
                                ter weather. A monitored natural at-
                                tenuation study will likely be com-
                                pleted by the end of February, and
                                the groundwater remedial design
                                should be completed in June.
                                   The 39-acre Forest Glen site in-
                                cluded a former mobile home  park.
                                153 people had to be permanently re-
                                located between 1990 and 1992. The
                                site was listed on the NPL in 1989.
                                   For more information, contact Gloria
                                Sosa, EPA Region 2, (212) 637-4283.
      cleanup e

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DOJ Seeks $40
Million From the City
of New Orleans,
Private Parties Under
CERCLA
United States v. City of New
Orleans; CFI Industries, Inc.,
formerly doing business as
Lettellier Phillips Paper Company;
Delta By-Products, Inc., Edward
Levy Metals, Inc., Civil Action No.
02-3618, E.D.  Louisiana
      he Department of Justice, on
      behalf of EPA, filed a complaint
      against the City of New Orleans
and three private companies on De-
cember  6, 2002,  for recovery of re-
sponse costs incurred by the Agency
at the Agriculture Street Landfill
Superfund Site.  The complaint was
filed under CERCLA  Section 107(a)
in the U.S. District Court for the East-
ern District of Louisiana.   The  City
owned and operated the landfill when
hazardous substances were being dis-
posed on-site. The three private party
defendants  had each  conducted sal-
vage operations at the site.
    The cost recovery action seeks re-
imbursement in excess of $42 million.
Additional  civil  penalties  of up to
$27,500 per violation per day are also
being sought from the City of New Or-
leans for their alleged failure to  com-
ply with a unilateral order for access
between March and April 1999.  The
penalties also address each day  after
January 28, 2001, when the City al-
legedly failed to respond to an infor-
mation request originally filed in No-
vember, 2000.
    The City began using the site as
a dump and disposal area for residen-
tial, commercial, and industrial waste
94 years ago in  1909. This activity
continued for at least 60 years. In
addition, from  1948  through 1969,
salvage operations were conducted on-
site under contract  with the city. Be-
tween 1977 and 1986, the site was
developed into housing, a commercial
district, and an  elementary school.
The residential areas  were built on  a
fairly thin layer of soil (often six
inches or less), and the school was
built on several feet of clean fill. The
site was evaluated  in 1986 and did
not qualify for placement on the Na-
tional Priorities List (NPL).
    In 1993, community leaders
asked that the site be re-evaluated
under the "new" Hazardous Ranking
System.  This re-evaluation led to
EPA's accelerated remedial investiga-
tion integrated with removal actions.
Fieldwork was completed rapidly, and
by May  1994, a fence had been in-
stalled around the undeveloped area
of the site and highly contaminated
soils at  a  children's play area  had
been removed. The site was proposed
to the NPL on August 23, 1994  and
formally added  on December 16,
1994. Work continued throughout
the 1990s, and close-out reports were
signed in July of 2001.
    For  more information, contact
Clarence E. Featherson, (202)564-4234.

RCRA  Violators
Sentenced

United States v. General Waste
Corporation, Emmanuel N. Ohiri,
and John Thomas Morris, District
of New Mexico

On December 19, 2002, General
Waste Corporation's CEO, Emmanuel
"Manny" N. Ohiri, was sentenced for
3 felony RCRA storage violations in
U.S. District Court. Judge Martha
Vazquez sentenced Mr.  Ohiri to 15
months incarceration and imposed a
$25,000 fine. Following his release
he will be under supervised release
for three years.
    The court's  decision to enhance
Mr. Ohiri's guideline range was due
to his leadership role in the violations
and for obstructing justice during the
execution of a federal search warrant
at General Waste.  During the No-
vember  1998 search, Mr. Ohiri  ob-
structed justice by covertly removing
hazardous waste labels  from on-site
drums and putting them in his pock-
ets.  He could not be convicted, how-
ever, because the court ruled that his
fourth amendment rights had been
violated when he was later forced to
remove the labels from his pockets.
The New Mexico Environmental De-
partment was allowed to testify dur-
ing the sentencing hearing. The la-
bels found in Mr. Ohiri's pocket could
only be admitted as circumstantial
evidence which led to the enhance-
ment of his sentencing guidelines.
The hearing lasted two days.
    The day prior to the CEO's sen-
tencing, the same judge sentenced
General Waste Corporation and their
Environmental Manager.  The com-
pany was issued a $300,000 fine, five
years probation, and an additional
$46,000 in restitution to the New
Mexico Environmental Department.
The  Environmental Manager, John
Thomas Morris, was sentenced to six
months confinement (three months
in a halfway house, three months
home confinement with electronic
monitoring) and three years super-
vised release following confinement
on that same day.  Mr.  Morris had
pleaded guilty to falsifying hazardous
waste manifests on March 20, 2002.
    On January 2, 2003, Mr. Ohiri
filed a "Motion for New Trial, New
Sentencing, or Correction of Sen-
tence." He had waived  his right to
appeal in his plea agreement. At the
time  this  article  was  submitted,
Judge Vazquez had not made a deci-
sion to set a hearing or rule on the
pleading.
    For more information, contact
Kathleen A. Kohl, Criminal Enforcement
Unit, (214) 665-3118.
EAB Grants Motion to
Dismiss Petitions for
Reimbursement

Glidden Company and Sherwin-
Williams Company, CERCLA Section
106(b) Petition Nos. 02-01 & 02-02,
EAB

The  Environmental Appeals Board
(EAB) recently decided the fate of two
petitions for reimbursement, which
sought roughly $4 million from the
Agency.  STierwin-Williams Company

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ass
and the Glidden Company filed for
compensation from  EPA  in June,
2002  for costs incurred during
remediation activities at the Cross
Brothers Pail Recycling  Site  in
Kankakee, Illinois. Region 5 answered
the two petitions in August by filing a
"Motion that Petitions for Reimburse-
ment Be Dismissed Without Regard
to the Petitions' Merits  and, in the
Alternative, for Additional  Time to
Respond on the Merits." Environmen-
tal Appeals Judges Scott C. Fulton,
Ronald L. McCallum, and Kathie A.
Stein reached a final decision in De-
cember 2002.
    A 1990 unilateral administrative
order (UAO), issued by EPA Region 5,
required the petitioners  to  perform
remediation activities including  in-
stalling a groundwater pump and treat
system  and excavation of PCB-con-
taminated soil.  Since December of
2000, the pump and treat system has
been in a trial shutdown.   Ground-
water data indicates that, since then,
contaminant  concentrations  have
been consistently below cleanup goal.
Sherwin-Williams  and  Glidden
claimed that they should not be held
liable for the cost of cleanup—includ-
ing the removal of PCB contaminated
soil—because the selected groundwa-
ter remedy had been arbitrary and
capricious.
    In August  2002, EPA filed a mo-
tion to dismiss the petitions. The Re-
gion claimed that the petitions should
be dismissed due to the petitioners'
failure to complete  all  actions  re-
quired under the UAO. The motion
argued that the petitions were pre-
mature, as there is ongoing ground-
water monitoring at the  site and the
groundwater system is in a trial shut-
down until 2005. Finally, the site clo-
sure procedures in the UAO have not
been followed.
    The EAB held that obligations un-
der a UAO are not complete as long
as additional analysis is proceeding
and future remediation remains a pos-
sibility.  They did not  find the
Region's decision to be arbitrary and
capricious, and EPA's motion was
granted on December 17, 2002. The
                                               petitions were deemed premature and
                                               dismissed without prejudice.
                                                   For more  information, contact
                                               David Dowton, (202) 564-4228, or
                                               Craig Melodia, EPA Region 5,  (312)
                                               353-8870.
Favorable Decision  in
U.S. v. Alcan Appeal

United States, State of New York v.
Alcan Aluminium Corporation, U.S.
Court of Appeals for the Second
District, Docket No. 01-6008

On January  7, 2003, the U.S. Court
of Appeals for the Second Circuit af-
firmed an influential district court de-
cision. The U.S. District Court for the
Northern District of New York  had
handed down the original decision on
November 14, 2000.  It found Alcan
to be jointly and severally liable for
response costs incurred by the United
States ($12.2 million) and the State of
New York ($1.4 million) at two hazard-
ous waste sites. The original deci-
sion is often cited by PRPs arguing
that they are liable for only a divis-
ible portion of harm at a Superfund
site even though the court had ruled
against Alcan.  This is because the
district court created (1) a "special ex-
ception" to CERCLA liability for PRPs
who can demonstrate that substances
they released at a site did not exceed
background contamination levels and
also that the released substances can-
not concentrate, or (2) a finding that
the PRP was not jointly and  severally
liable for site contamination because
of divisibility of harm.
    The appellate court upheld  that
Alcan was not exempt from CERCLA
liability and that the company had
failed to carry its "substantial burden"
(in presenting  its  divisibility argu-
ment).  Additionally, the court found
Alcan's analysis of the harm presented
by its wastes inadequate.
    Finally, the Court of Appeals re-
jected Alcan's argument that retro-
active application of CERCLA works
an unconstitutional taking under the
Fifth Amendment and a denial  of
due process under the Fourteenth
Amendment based on the  Supreme
Court's  decision in Eastern Enter-
prises v. Apfel, 524 U.S. 498 (1998).
Regarding the written decision in East-
ern Enterprises, the U.S. Court of Ap-
peals noted that "it is difficult to dis-
cern [in the Supreme Court's decision]
a general principle of law that sup-
ports [the]  appellant's claim that
retroactive CERCLA liability  is un-
constitutional."  No other court has
found retroactive application  of
CERCLA to be unconstitutional since
Eastern Enterprises.
   For more  information, contact
Steve Botts, OSRE, (202) 564-4217.
                                                                                   Evasive PRP Ordered
                                                                                   to Pay $1.9M  in Civil
                                                                                   Penalties

                                                                                   United States v. William M. Gurley,
                                                                                   No. 93-2755 D, W.D. Tennessee

                                                                                   Two days before Thanksgiving, a Ten-
                                                                                   nessee district court  granted the
                                                                                   United States' motion for imposition
                                                                                   of an almost $2 million civil penalty
                                                                                   against the president of a used oil re-
                                                                                   fining business.   Judge  Bernice
                                                                                   Donald found  that the  defendant,
                                                                                   William Gurley, had failed to comply
                                                                                   with CERCLA  information  requests
                                                                                   regarding the South 8th Street Land-
                                                                                   fill Superfund Site for a span of nearly
                                                                                   seven years. Mr. Gurley has been the
                                                                                   president and majority stakeholder of
                                                                                   Gurley Refining Company (GRC)
                                                                                   since 1962.  The amount  of the pen-
                                                                                   alty was based on Gurley's actions
                                                                                   during three different periods.
                                                                                      EPA originally issued a general
                                                                                   notice letter and information request
                                                                                   to several parties, including Gurley,
                                                                                   on February 6,  1992.   The  letter
                                                                                   sought information about  the site
                                                                                   and also advised recipients that their
                                                                                   failure to reply within 15 days could
                                                                                   result in an enforcement action by
                                                                                   the Agency seeking penalties  of up
                                                                                   to  $25,000 per day of non-compli-
                                                                                   ance.  Mr. Gurley refused  to acknowl-

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edge any of the letters until the U.S.
Marshals' Service delivered the docu-
ments  to his wife  in August 1992,
seven months after their initial issu-
ance. In the year following the letter's
acceptance, Mr. Gurley provided two
responses, neither of which satisfied
the Agency.  Eventually  the desired
information was obtained in  July
1994, by deposing Mr. Gurley in con-
nection with a  cost  recovery action.
    In  1998, the court granted the
United States' motion for summary
judgment as to Mr.  Gurley's liability.
The United States then petitioned the
Court for the imposition of a civil pen-
alty for failure to respond to the in-
formation request.  EPA's request for
information was found to be valid and
enforceable, and Mr. Gurley's failure
to comply was  found to be unreason-
able and constituting bad faith.
    In  calculating  the penalty, the
court noted that Mr. Gurley's conduct
should  be punished and that the pen-
alty should be stringent  in order to
deter other regulated  entities from
similar non-compliance.  The court
assessed a penalty  of $2000 per day
from February 1992 through Septem-
ber 1992, when Mr. Gurley made no
attempt to respond  to the original in-
formation request; $1000 per day from
September  1992  through July 1994,
when he responded  in a cursory man-
ner; and $500 per day from July 1994
through February  1999, the period
when Mr. Gurley failed to comply but
EPA was able to  obtain the informa-
tion  from his deposition. The  total
penalty amounted to $1.9 million. Mr.
Gurley  has filed for bankruptcy, but ac-
cording to the district court there are
assets to satisfy the entire judgment.
    For more  information, contact
David Dowton, OSRE, (202) 564-4228.
 Libby Asbestos
 Update
     continued from page 2
along the Kootenai River in 1994.  In
July of 2000, W.R. Grace & Company
purchased a majority of the shares of
 KDC. Judge Molloy found that there
 was no merit to KDC claims that un-
 specified third parties may have been
 responsible  for the contamination,
 that the corporation was an innocent
 purchaser of the property,  and that
 the contamination was  an "act of
 God," a rarely used  defense, for
 which the corporation was not re-
 sponsible. He found that KDC never
 mentioned a specific third party or
 presented information demonstrating
 its ignorance of the contamination.
 The Judge also stated that the asbes-
 tos was a direct result of vermiculite
 mining and  processing, not an "act
 of God."
    For  more  information, contact
 Matt Cohn, EPA Region 8, (303) 312-
 6853, or Victoria van Roden, OSRE,
 (202) 564-4268.
Regional Grant
Application Guidance
Language Finalized
President Bush signed the new
Brownfields law, the Small Business
Liability Relief and Brownfields Re-
vitalization  Act (SBLRBRA),  on
January 11,  2002.   SBLRBRA  re-
quired that the EPA Administrator
publish guidance in order to assist
eligible entities in applying for
grants. As a result three new guid-
ance documents were created.
    The first of the three, the FY2003
Brownfields Grant Application Guide-
lines, was issued on October 24, 2002.
Draft  language for the second docu-
men1>-process guidance to be sent to
the regions to help in Part  I of the
application process—was recently fi-
nalized.  A draft copy of the third
document, a new Terms and Condi-
tions statement needed to specify ac-
tions  needed  for the actual Grant
agreements, will be sent out to the
states for review once complete. The
Office of Site Remediation  Enforce-
ment (OSRE) worked with the  Office of
Brownfields Cleanup  and Redevelop-
ment (OBCR) to develop the guidance.
     For more information, contact
 Phil Page, OSRE, (202) 564-4211.
S13.5M DOI Debt
Potentially Referred
to OMB
EPA recently sent a letter to the
Department of the Interior (DOI) re-
garding $13.5M the Department owes
to the Superfund Trust Fund for re-
sponse costs  incurred at the Denver
Radium Superfund Site.  The two
agencies have attempted to resolve
this dispute for roughly 10 years. The
letter, originating from EPA's Office
of Enforcement and Compliance As-
surance (OECA)  and Office  of the
Chief Financial Officer (OCFO), was
sent to Lynn Scarlett, the Assistant
Secretary at  DOI, on December 24,
2002.  It states that EPA plans to re-
fer the matter to OMB for resolution.
    The Denver  Radium Site was
added to the NPL in  1983 and is a
massive site consisting of 44 separate
properties. The Colorado Department
of Public Health and  Environment,
EPA, and responsible parties worked
together on  the cleanup. The esti-
mated cleanup costs exceed $40 mil-
lion. Remediation methods  include
soil removal, ventilation systems, sta-
bilization, and capping.
    For more information, contact Victoria
van Roden, OSRE, (202)  564-4268.
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•o
 c
JJ)
"5
 o
March 1O-12, 2003
UST/LUST  National Conference
San Francisco, CA
Lela Bijou, (703) 603-7145
bijou.lela@epa.gov


March 18-20, 2003
National Superfund Policy
Managers Meeting (Joint
Meeting with RCRA Policy
Managers)
Dallas, TX
Nancy Riveland-Har, (415) 972-3251
riveland.nancy@epa.gov

May  5-9,  2003
Superfund  New Attorney
Training
This training is offered to EPA,
DOJ, other Federal agencies,
and states.
Washington, D.C.
Susan Boushell,  (202)564-2173
boushell.susan@epa.gov
Jocelyn Scott, (202) 564-4795
scott.jocelyn@epa.gov
                                                                                 Glossary
Comprehensive Environmental Response,
Compensation and Liability Act
Department of Natural Resources

Department of the Interior

Environmental Appeals Board
Memorandum of Understanding

National Contingency Plan

National Oceanic and Atmospheric
Administration
National Priority List

Office of Brownfields Cleanup and
Redevelopment

Office of the Chief Financial Officer
                                                       cleanupnews
                                                                 i is a quarterly publication of EPA's
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Unilateral Administrative Order
                              http://www.epa.gov/compliance/about/offices/osre.html


                               Richard ML Poplno, Ph.D. REM, editor

                               EPA Review Board: Paul Connor, Sandra
                               Connors, Karen Ellenberger, Suzanne Wells,
                               Jeff Hvlnwnnan

                               Cathy Hartman, DPRA, Inc., writer

                               Lauren Grantham, DPRA, Inc., designer
                                                       % comment on the newsletter or to be added or deleted from the CleanupNews mailing list, contact
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