Office of Site Remediation Enforcement (2271 A) Washington, DC 20460 Winter 2005 EPA300-N-05-002 Issue #19 Environmental Protection Agency cleanupne inside Cooper v. Aviall Ruling 2 Region 2 Administrator Resigns Beede Waste Oil 3 Tri-Cities Barrel CD "Return to Use" 4 Delaware River Oil Spill 5 In the Courts 6 Lavaca Bay Settlements Tidbits 7 PRP Search Enhancement Conference Safe Needle Disposal Calendar 8 Glossary CleanupNews is a quarterly newsletter highlighting hazardous waste cleanup cases, policies, settlements and technologies. Leavitt Nominated for Health and Human Services Post President George W. Bush looks on as Administrator Leavitt speaks during the nomination announcement. President George W. Bush has selected EPA Ad- ministrator Michael Leavitt for Secretary of the De- partment of Health and Human Services, a post previously held by Tommy Thompson who re- signed December 3. During the December 13 announcement at the White House, the President thanked Leavitt for his service to EPA and said that while leading EPALeavitt "enforced high stan- dards and a spirit of cooperation and with good common sense." Leavitt said that he felt "under- standable regret" in leaving EPA and described the agency as "filled with dedicated people whom I have come to have great affection for." Leavitt has served as EPAAdmin- istrator since November 2003. During his tenure, EPA finalized two significant Superfund settle- ments, a consent decree for the Fox River cleanup worth $60 million and a $40 million settlement for the groundwater cleanup at San Gabriel Valley. Leavitt also an- nounced a record $75 million in Brownfields grants; unveiled the Clean Air Rules of 2004; and oversaw the development of the Great Lakes Regional Collabora- tion, a collective of agencies dedi- cated to restoring the Great Lakes through an executive order. Senate confirmation hearings are scheduled for mid-January. Deputy Administrator Stephen Johnson will serve as Acting EPA Adminis- trator pending Bush administra- tion nomination and Senate confir- mation of a replacement. & Printed on recycled paper ------- Supreme Court Rules No Contribution Rights For Voluntary CERCLA Cleanups ByClarence Featherson, Office of Site Remediation Enforcement The Supreme Court ruled in Cooper Industries. Inc. v. Aviall Services. Inc. (No. 02-1192) on Decem- ber 13, 2004. By a 7-2 majority, the Court held that a private party who has not been sued under CERCLA Sec- tions 106 or 107 is not permitted to bring a contribution action under CERCLA Section 113(f)(l) against other potentially respon- sible parties (PRPs) for response costs. Petitioner Cooper Indus- tries, Inc., supportedby an amicus brief filed by the United States, asked the Supreme Court to re- verse an en bane decision by the United States Court of Appeals for the Fifth Circuit that CERCLA Section 113(f)(l) allows a PRP to conduct a "voluntary" cleanup and then seek contribution from other PRPs. Congress amended CERCLA in 1986 to include Section 113(f)(l), which provides an express cause of ac- tion for contribution. Section 113(f)(l) states that any person may seek con- tribution from any other person who is liable or potentially liable under CERCLA Section 107 during or follow- ing any civil action under Section 106 or Section 107 of CERCLA. The last sentence of CERCLA Section 113(f)(l) states that, "[njothing in this subsec- tion shall diminish the right of any per- son to bring an action for contribution in the absence of a civil action under Section 9606 of this title or Section 9607 of this title." Justice Thomas, writing the major- ity opinion, found that the natural meaning of Section 113(f)(l) is that persons may only seek contribution subject to specified conditions, i.e., "dur- ing or following" a civil action under Section 106 or Section 107. The Court held a different reading would render the "during or following" language su- perfluous and eliminate the need for contribution rights for settlements un- The Court ruled 7-2 that private parties who have not been sued under CERCLA cannot bring contribution actions against other PRPs. der CERCLA Section 113(f)(3)(B). The Court stated that the last sen- tence of CERCLA Section 113(f)(l) did not change the precondition for a civil action. Rather, the Court held the sole function of the savings clause is to ac- knowledge that any other rights to contribution that may exist are not "diminished." The Court also explic- itly affirmed that CERCLA created a separate right of contribution un- der Section 113(f)(3)(B) for a PRP who has resolved its liability to the United States or a State in a judicial or administrative settlement. The majority opinion did not address the question of whether a unilat- eral administrative order (UAO) under CERCLA Section 106 is a "civil action" that would trigger contribution rights. However, the United States' amicus brief filed in this case states that the position of the United States is that a UAO does not grant contribution rights. The Court left open the possibility that continued on page 5 Head of Region 2 Resigns EPARegion 2 Administrator Jane Kenny resigned effective November 26, 2004. Kathleen Callahan, who has worked with EPAsince 1971 and served as Deputy Regional Administrator under Kenny, is serving as Acting Regional Administrator. Prior to her selection as deputy last year, Callahan helped direct EPAs response to the World Trade Center tracks, and she was appointed Assistant Regional Administrator for New York City Response and Recovery Programs in May 2002. As Acting Administrator, Callahan will be oversee a $750 million annual budget and manage 1,000 Regional employees. Callahan's biography is available online at: http://www.epa.gov/region2/rabio.htm. cleanupnews ------- Small Contributors Resolve Beede Waste Oil Liability EPA and the New Hampshire Department of Environmen- tal Services (NH DES) announced a settlement with 276 parties to the Beede Waste Oil Superfund site in Plaistow, New Hampshire on Decem- ber 6, 2004. This is the fourth settle- ment with de minimis parties (i.e., parties that contributed minimal amounts of hazardous waste at the site compared to other parties) and will provide $10.7 million for the cleanup. EPAhas collected about $17 million in four settlements with 1,199 parties, and the monies raised are be- ing held in a site-specific Superfund special account for application to costs associated with cleaning up the Beede site. To date, EPAand NH DES have spent $22 million on site investigation and cleanup. This settlement rep- resents another EPA success with targeting small contributors first and working to make Superfund a simpler, more helpful process. Using this "bottom up" enforcement strategy, EPA en- sures that parties will provide funds for the cleanup. Also, by offering small contributors early settlements, EPAsaves litigation costs and focuses resources on pursuing major parties to site contamination. Small con- The on-site oil recovery system, which has been in operation since February 2000, has removed over 85,000 gallons from the site. Targeting small contributors first ensures EPA will have funds for the cleanup. tributors benefit from early settlements because they are able to quickly resolve their liability and avoid lengthy and costly litiga- tion. From the 1920s to 1994, the 40-acre site was used for a variety of oil-related activities, including waste oil processing and resale. In 1995, groundwater sampling identified vola- tile organic compounds in on-site moni- toring wells and two private residential wells. Additional testing found un- healthful levels of several contami- nants, includingPCBs, in groundwater and soils, and the site was added to the National Priorities List in 1996. In 1996 and 1997, EPAand NH DES removed approximately 100 above-ground stor- age tanks and 800 drums. The Janu- ary 2004 Record of Decision calls for soil removal and disposal, a soil va- por extraction system, long-term monitoring, and institutional con- trols. The remedy allows for future redevelopment of the site for residen- tial or recreational use. Additional information about Beede Waste Oil Superfund site and the settlements is available online at: http://www.epa.gov/ne/superfund/ sites/beede/index.htm. For additional information, contact Cynthia Lewis, EPA Region 1, lewis. cindy@epa. gov. " Agreement Signed for Tri-Cities Barrel On November 26, 2004, the EPA Region 2 Regional Ad- ministrator signed a consent decree (CD) with Alcan Aluminum Corpora- tion for the Tri-Cities Barrel Superfund site in Broome County, New York. Under the CD, Alcan has agreed to reimburse EPA up to $1.4 million for its past and future response costs and to pay a $360 thousand pen- alty for violating a CERCLA cleanup order. Alcan was among a large number of potentially responsible parties (PRPs) at the site. EPA initially entered into early de minimis settlements with 28 PRPs. Then, in an August 2001 con- sent decree, 43 additional parties agreed to implement the remedial de- continued on page 6 cleanupnews 3 ------- "Return to Use" Initiative to Spur Reuse On November 10, 2004, EPA launched a new initiative— "Return to Use"—that encourages reuse and redevelopment of Superfund sites. Through "Return to Use" (RTU), EPA will review imple- mented site remedies for unnecessary barriers to reuse and determine if small modifications will enable com- munities to reuse properties while protecting human health and the en- vironment. EPAwants to remove the stigma typically associated with former contaminated sites and spur commercial, ecological and recre- ational use of fenced, abandoned, and underutilized properties. RTU focuses on the approximately 500 National Priorities List sites where remedies were implemented before the 1999 launch of the Superfund Redevelopment Initiative (SRI). Prior to SRI, remedy selection was focused primarily on removing immediate threats to human health and the environment and less on how the site would be used after cleanup. With the introduction of SRI, EPA encouraged considering future site use when determining a remedy and ensuring that the remedy would "Return to Use" will encourage the reuse and redevelopment of Superfund sites. be consistent with anticipated or potential use. When reviewing sites where remedies were initiated be- fore 1999, EPA will consider modi- fying restrictive fences or deedlimi- tations that go beyond what is re- quired for the site to remain pro- tective, issuing Ready for Reuse (RfR) determinations, and elimi- nating misleading signs. EPA has selected 11 demonstra- tion projects for the initiative. One of the sites, HOD Landfill in Antioch, Illinois, is a former land- fill where overly restrictive barri- ers and concerns about the site be- ing a Superfund site were prevent- ing reuse. EPAand stakeholders re- viewed and updated the risk assess- ment, and EPA issued an Explana- tion of Significant Differences remov- ing unnecessary parts of the remedy. EPA then issued an RfR determina- tion assuring residents that the site can be used for recreation, and the former landfill is being turned into athletic fields for a high school adja- cent to the site. The RfR determina- tion for HOD Landfill was highlighted in CleanupNews II-February 2004, which is available online at: http:// www.epa.gov/Compliance/resources/ newsletters/cleanup/cleanup 15s.pdf. Additional information about the initiative, including a fact sheet and demonstration project descriptions, is available online at: http:// www.epa.gov/superfund/programs/ recycle/rtu/index.htm. For additional information, contact Melissa Friedland, National Program Manager for Superfund Redevelop- ment, (703) 603-8864 or friedland. melissa@ena. sov. Vacant Field to be Converted to Neighborhood Park The Arlington Blending and Pack- aging site in Tennessee is one of 11 "Return to Use" demonstration projects. For seven years, the Arling- ton site was used for formulating and packaging pesticides, and spills led to soil and groundwater contamina- tion. In 1996,41,000 tons of contami- nated soil were removed from the property. Over the past 10 years, veg- etation has returned to the site. Residents and community leaders had shied away from reusing the property because it had been a Superfund site. Through a "Ready for Reuse" determination and com- fort letter, EPA assured the com- munity that the property was safe to use for recreational purposes, and the city will be converting the land into a 2.3-acre neighborhood park. EPA has determined that the land can be used for this pur- pose without interfering with on- going groundwater monitoring. For additional information about the Arlington Blending and Packaging demonstration project, contact Derek Matory, Remedial Project Manager, matorv. derek@epa. sov. In a few months, the unused Arlingtc property will boast a playground, walking and biking trails, and a basketball court. cleanup ------- Agencies Respond to Oil Spill on Delaware River On November 27, 2004, a ves- sel tanker heading for a Citgo facility in Paulsboro, New Jersey spilled approximately 30,000 gallons of crude oil into the Delaware River. The cause of the spill is still under in- vestigation. The spill occurred as tug- boats were assist- ing the Athos I, a 750-foot vessel with a Cyprus flag, to the Citgo facili- ties pier. Athos I listed 8 degrees to the left, and the engine cut off. The spill spread from just north of the Ben- jamin Franklin Bridge south to the Commodore Barry Bridge. A safety zone was established around the spill from the Tacony Palmyra Bridge to the Commodore Barry Bridge, and this section of the river was closed to all pleasure and commercial craft for ap- proximately 24 hours after the spill occurred. Many federal, state, and local agen- cies and contractor personnel came to- gether to assist in cleanup of the spill Responders have collected nearly 65,000 gallons of oil and oily liquid. and protect wildlife including: EPA, the Pennsylvania Department of Environ- mental Protection, New Jersey Depart- ment of Environmental Protection, New Jersey State Police, the Coast Guard Marine Safety Office-Group, Delaware Department of Natural Resources, U.S. Fish and Wildlife, National Oceanic and Atmospheric Administration, Tri-State Bird Res- cue, and representatives from Citgo and the ship's owner. Thousands of feet of protective boom was laid out to help prevent the spread of crude oil to other areas of the river and wildlife habitat. As of early January, responders have collected nearly 7,000 tons of oily sol- ids, 65,000 gallons of oil and oily liq- uid, and 2,000 gallons of submerged oil. Also, 228 captured birds have been released. The cleanup effort will con- tinue over the next several months. Updates on the cleanup effort and the ongoing investigation into the cause of the spill are available online at: http ://www .incidentinfo .com/external/ index.cfm?cid=864. For additional information, contact the Joint Information Center, (267) 765-3441. Supreme Court, continued from page 2 Aviall had a CERCLA Section 107 ac- tion and remanded the case for fur- ther proceedings on that issue consis- tent with its opinion. In a dissenting opinion, Justice Ginsberg and Justice Stevens argued that the issue of whether Aviall had a right to file an action pursuant to CERCLA Section 107 should have been decided in this case by the Su- preme Court and not remanded to a lower court. The court did not address whether a PRP has a cause of action against other PRPs under section 107, stating that the issue was not ad- dressed by the courts below or fully briefed by the parties. The implications of the Court's de- cision for EPA's site remediation en- forcement and brownfields' programs and state voluntary cleanup programs will be monitored and assessed by EPA and states. Case background was provided in CleanupNews Spring 2004, available online at: http://www.epa.gov/Com- pliance/resources/newsletters/ cleanup/cleanuplS.pdf. The Supreme Court decision is available online at: http://www.supremecourtus.gov/opin- ions/04pdf/02-1192.pdf. For additional information, contact Clarence E. Featherson, OSRE, (202) 564-4234. o I * kers clean the shoreline December cleanupnews 5 ------- Two Lavaca Bay Settlements Announced On December 10, 2004, the U.S. Department of Justice, EPA, National Oceanic and Atmo- spheric Administration, Department of Interior, and State of Texas an- nounced two settlement agreements with Alcoa Inc. and Alcoa World Alu- mina related to Lavaca Bay and the Point Comfort/Lavaca Bay Superfund Site. Sediments in Lavaca Bay were contaminated with mercury from past operations at Alcoa Inc.'s Point Comfort facility. Alcoa owned the plant from 1948 until 1994 when it was purchased by Alcoa World Alu- mina. Alcoa operated a chlorine-al- kali processing unit and discharged wastewater containing mercury into Lavaca Bay. Under the two settlement agree- ments lodged with the U.S. District Court, Alcoa will undertake a variety of restoration actions. Alcoa has al- ready spent approximately $40 mil- lion for early response actions and will spend approximately $11.4 million to complete the remaining cleanup ac- tions. Alcoa will also pay governmen- tal agencies for incurred costs. Under the cleanup consent decree, Alcoa will dredge contaminated sediments, op- erate a groundwater recovery system at the former chlorine-alkali plant, cap portions of the plant, and monitor sediments and fish. Under the natural resource damages consent decree settlement, Alcoa will construct a 70-acre salt marsh on Powderhorn Lake's north shore and an 11-acre oyster reef in southeast Lavaca Bay; purchase and transfer approximately 730 acres of land to the U.S. Fish and Wildlife Service for ad- dition to the Aransas National Wild- life Refuge. To Alcoa Will help restore the increase and bay by Constructing a Salt enhance recre- marsh and oyster reef. ational fishing in Lavaca Bay, Alcoa will replace the existing auxil- iary boat ramp and construct a new timber dock; modify an existing jetty; and construct a new timber dock. Alcoa will provide funding to local en- tities for maintaining and insuring these structures against loss for the next 15 years. Comments from the 30-day public comment period will be considered before the settlement is considered fi- nal. For additional information, contact Gary Baumgarten, EPA Region 6, (214) 665-6749. Tri-Cities, continued from page 3 sign and remedial action (RD/RA), but Alcan refused to participate. In Sep- tember 2001, EPA issued a Unilat- eral Administrative Order (UAO) to Alcan and to one other PRP directing them to participate in the RD/RA. Want to join u conserving paper? 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 Alcan alone failed to comply with the UAO, and EPAsought recovery against Alcan of outstanding past and future costs plus a penalty for non-compliance with the UAO. With the Alcan CD, all financially viable PRPs are contributing to the site cleanup. From 1955 to 1992, Alcan and other companies sent drums for re- conditioning, and the resulting wastewater was discharged into unlined lagoons and on-site soils and groundwater became contami- nated with volatile organic com- pounds, semi-VOCs, pesticides, metals and PCBs. Tri-Cities Bar- rel was proposed to the NPL on May 5, 1987 and listed on October 4, 1989. In a PRP-lead removal action in 1996, all drums, tanks, and on-site containers were re- moved; all structures were decon- taminated, demolished, and dis- posed; and operational equipment was decontaminated and re- moved. A March 2000 Record of Decision outlined a remedy, then estimated at $20.4 million, to ad- dress soils, sediments and ground- water. Under the CD, PRPs have completed the cleanup of the soils and sediments and are now evalu- ating the groundwater remedy. Approximately 350 drums and 93,000 tons of soil and sediment have been excavated and disposed offsite at appropriate disposal fa- cilities. Some materials were in- cinerated prior to disposal. The CD with Alcan was lodged with the United States District Court on December 14, 2004, and the 30-day public comment period began December 29, 2004. For additional information, con- tact Michael Mintzer, EPA Region 2, (212) 637-3168. cleanupnews ------- PRP Search Enhancement National Conference Held in Denver By Nancy Deck, Office of Site Remediation Enforcement Tie Fourth National Confer jnce on PRP Search Enhance- ment was held in Denver, Colorado, on August 10 through 13, 2004. The conference was planned and presented by EPA's PRP Search Enhancement Team. Conference participants ranged from subject matter experts to those new to the PRP search process. In ad- dition to formal programs, the confer- ence provided PRP search personnel an opportunity to meet and share ex- periences with their counterparts from other agencies and areas of the coun- try. Participants included represen- tatives of all ten EPA regions, the states of Arizona, California, Hawaii, Kansas, Mississippi, Oklahoma, South Carolina, and Tennessee, the Navajo Nation, the U.S. Department of Agriculture, and the U.S. Depart- ment of Justice. Conference sessions addressed nu- merous issues encountered by PRP search personnel. For example, in the Environmental Liability Insurance session two EPA subject matter ex- perts and representatives of the In- surance Archaeology Group and the law firm Anderson, Kill & Olick dis- cussed insurance law issues that are commonly encountered at CERCLA and RCRA cleanup sites, EPAs role in seeking insurance coverage for such cleanups, and the sometimes difficult process of identifying insurance poli- cies that may provide coverage at older sites. Other session topics included Bankruptcy and Ability to Pay, PRP Search "Best Practices," Superfund and Corporate Liability, Sites with Numerous Generators, Conducting Title Searches, Real Property Law, Windfall Liens & Bona Fide Prospec- tive Purchasers, Interviewing Tech- niques, FOIA Procedures & PRP Searches, and Alternative Dispute Resolution & PRP Searches. In addi- tion, an important interactive session provided an opportunity for represen- tatives of EPA, states, tribes, and other federal agencies to discuss ways to en- hance their partnerships in the PRP search process. By all accounts the conference was a success, in large part due to the par- ticipation of a broad spectrum of the PRP search community and the well- rounded expertise of the presenters. During FY05, the PRP Search Enhance- ment Team will follow up on ideas dis- cussed at the conference for facilitat- ing enhanced communication andtrain- ing for PRP search personnel. For additional information about the conference or the PRP Search Enhance- ment Team, contact Team Leader Nancy Deck, OSRE, (202) 564-6039. EPA Recommends Safer Disposal Methods for Used Syringes By Diane Bartosh, Office of Solid Waste EPA recently issued new pub lications that encourage people to dispose of used needles through community drop-off programs, household hazardous waste facilities, sharps mailback programs, or at- home needle destruction devices. Pro- tect Yourself, Protect Others: Safe Op- tions for Needle Disposal (EPA530-F- 04-004) and Protecting Your Commu- nity from Sharps: Options for Safe Dis- posal of Sharps (EPA530-K-04-001) were developed in collaboration with the Coalition for Safe Community Needle Disposal. The first document aims to re-educate self-injectors about better management of used needles, and the second is designed for use by states to help keep used syringes out of all trash collections. The Coalition for Safe Community Needle Disposal is a collaboration of businesses, com- munity groups, nonprofit associations, and state, local, and federal govern- ment entities committed to promot- ing public awareness of the hazards posed by improperly disposed sharps. The purpose of the documents is to encourage people to think about used needles from a health standpoint rather than as a waste management or disposal issue. Approximately 8 to 9 million people use syringes for a wide range of medicinal purposes, which creates about 3 billion used needles a year. The Agency is distrib- uting the new publications not only to promote safer disposal alternatives, but also to encourage people to reduce the amount of this waste. The new publications are free and available online at: www.epa.gov/epaoswer/other/ medical/sharps.htm. They can be or- dered online at: http://www.epa.gov/ ncepihom/ordering.htm; by email: ncepimal@one .net: or by calling 800/ 490-9198. Self-injectors should re- quest EPA530-F-04-004; state and lo- cal governments should request EPA530-K-04-001. deanupnews 7 ------- CO O February 27 - March 3 WM'05, the 31st Waste Management Symposium Tucson, AZ http://www,wmsym,org/ May 18 - 20 Solid/Hazardous Waste Conference and Exhibition Gatlinburg, TN http://www,state,tn, us/environment/ swm/conference/ July 12 - 15 2005 Community Involvement Conference and Training Buffalo, NY http ;//www, epancic, org/2005/ overview, cfm Glossary CD CERCLA EPA NHDES OECA OSRE OSWER Consent decree Comprehensive Environmental Response, Compensation, and Liability Act Environmental Protection Agency New Hampshire Department of Environmental Services Office of Enforcement Compliance and Assurance Office of Site Remediation Enforcement Office of Solid Waste and Emergency Response PCBs PRP RTU SRI UAO USCG VOCs Polychlorinated biphenyls Potentially responsible party Return to Use Initiative Superfund Redevelopment Initiative Unilateral administrative order United States Coast Guard Volatile organic compounds 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/deaiiiip deaiuipnews.htinl 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, Anne Dowton, and Jon Kallen DPRA Inc., writers Mary Spencer, DPRA Inc., designer To comment on the newsletter contact Richard W. Popino, PhD REM, at MC-2271A, U.S. EPA, 1200 Pennsylva- nia Ave., NW, Washington, DC 20460, emaihpopino.rick@epa.gov. To be added or deleted from the subscriber list, Contact Christine Rueter at: christine.rueter@dpra.com To receive CleanupNews by email, subscribe at http://www.epa.gov/compliance/resourct cleanup.html. •vi 008$ ^uATj^ joj jfyjuua^ ssauisng JEIOIJJO 9e-9'ON Ill/\iy3d VcB aiVdS33d1S39VlSOd ssvioisyid 09tOS OQ ' (YILLG) AoueSy uoi ------- |