United States
Environmental Protection
Agency
Office of Site Remediation
Enforcement (2271 A)
Washington, DC 20460
Winter 2003
EPA300-N-03-002
Issue #11
cleanupnews
inside
News 2
New Director of OSRE
Libby Asbestos Update
Fox River 3
Cameron Station 4
Forest Glen Redevelopment
In the Courts 5
$40M Sought from New Orleans
RCRA Violators
EAB Grants
US v. Alcan Appeal 6
PRP Ordered to Pay
News and Notes 7
Regional Grant Application
$13.5MDOIDebt
Calendar
Glossary
8
Cleanup News is 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.
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New Director of OSRE,
Susan Bromm
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 brown field 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.
Libby Asbestos
Update
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
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Cleanup Decision Announced for
Lower Fox River
(hooieumefy
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 (OU1) 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
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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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.
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DOJ Seeks $4O
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
The 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. Ohm,
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. Sherwin-Williams Company
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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-
ment—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.
$13.5MDOI 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.
o
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cleanupnews 7
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8
Marc/7 7O- 72, 2003
UST/LUST National Conference
San Francisco, CA
Lela Bijou, (703)603-7145
bijou.lela@epa.gov
March f 8-20, 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
scottjocelyn@epa.gov
Glossary
CERCLA
DNR
DOI
EAB
MOU
NCP
NOAA
NPL
OBCR
OCFO
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 Priority List
Office of Brownfields Cleanup and
Redevelopment
Office of the Chief Financial Officer
cleanupnews
CleanupNews is a quarterly publication of EPA's
Office of Site Remediation Enforcement, in
cooperation with the Office of Emergency and
Remedial Response, Office of Underground
Storage Tanks, Chemical Emergency Prepared-
ness and Prevention Office, and the Technology
Innovation Office. Past issues of CleanupNews
can be found at http://ww.epa.gov/compliance/
resources/newsletters/cleanup
cleanupnews.html
OECA
OMB
OSWER
OU
PCB
PRP
RCRA
ROD
RPM
SBLRBRA
UAO
Office of Enforcement and Compliance
Assurance
Office of Management and Budget
Office of Solid Waste and Emergency Response
Operable Unit
Polychlorinated Biphenyls
Potentially Responsible Party
Resource Conservation and Recovery Act
Record of Decision
Remedial Project Manager
Small Business Liability Relief and Brownfields
Revitalization Act
Unilateral Administrative Order
Richard W. Popino, Ph.D REM, editor
EPA Review Board: Paul Connor, Sandra
Connors, Karen Ellenberger, Jeff Heimerman
Cathy Hartman, DPRA, Inc., writer
Lauren Grantham, DPRA, Inc., designer
To comment on the newsletter or to be added or deleted from the CleanupNews mailing list, contact
Richard W. Popino, Ph.D REM, at MC-2271A, U.S. EPA, 1200 Pennsylvania Ave., NW, Washington, DC
20460, e-mail: popino.rick@epa.gov.
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