A

new EPA re p o rt on Superfund accomplishments finds that thre e

rounds of re f o rms over the last fiv e

years have made the Superfund pro g r a m

“ f a s t e r, faire r, and more efficient.” The ref o rms have touched on every part of the 

p rogram, from expediting cleanups and inc reasing liability fairness to promoting environmental justice and innovative technology.

A useful indication of the re f o rms’ success is the number of sites on the Superfund National Priorities List (NPL) where

the construction of cleanup remedies has

been completed. In FY97 and FY98, EPA

completed construction at 175 sites on the

NPL, exceeding the target of 130 completed sites for those years. These 175

sites account for 30 percent of the total 585

sites completed since the pro g r a m ’s inception in 1980.

In FY98, the Superfund enforc e m e n t

United States

Environmental Protection

Agency

Office of Site Remediation 

Enforcement (2271A)

Washington, DC 20460

Spring 1999

EPA 300-N-99-008

Issue #2

inside

Guidance 2

Getting Y2K Ready 3

Fairmont Coke Moves 

Toward XL Project 6

All About CEPPO 7

In the Courts 8

ADR 9

Brownfields and 

Taxes 10

National Notable 

Awards 11

Announcements 12

Printed on recycled paper

c l e a n u pn e w s

p rogram secured private party commitments that exceeded $1 billion. This

brings the cumulative value of private

p a rty commitments since the pro g r a m ’s

inception to approximately $15.5 billion.

S u p e rfund Reforms 

A re Paying Off

continued on page 4

I

t has been called “an American version

of a Greek tragedy.” The movie, “A

Civil Action,” opened on December 25,

1998, based on the award-winning book by

Jonathan Harr of the same title. Both book

and movie bring to life the lengthy and

complex lawsuit surrounding the contamination of drinking water wells in Wo b u rn ,

Massachusetts and the illnesses that developed among the families living nearby.

The families sued W.R. Grace and Beatrice

Foods, both of which had plants located

close to municipal wells. W.R. Grace settled with plaintiffs for almost $9 million

after the first phase of the trial, and the

two companies ended up paying nearly

$70 million for cleanup. The Wells G&H

site was listed on EPA’s National Priorities

List in 1982. 

Several websites are available online to

p rovide the public with more inform a t i o n .

Cleanup News is an occasional newsletter highlighting 

h a z a rdous waste cleanup

cases, policies, settlements,

and technologies. 

A Civil Action

continued on page 6

The Industri-Plex site in North Wo b u rn, Massachusetts, illustrates Superf u n d ’s eff e c t i v e n e s s

in re t u rning sites to productive use. Once a

contaminated pro p e rty that threatened human

health and the environment, the site is now

poised to become a major commercial and 

retail district.
2 Cleanup News

Cashouts Available for

Peripheral Parties 

E PA and Justice Issue CERCLA

Section 122(h) Guidance 

I

n September 1998, EPA and the

D e p a rtment of Justice jointly issued guidance on CERCLA

§122(h) administrative response costs

settlements, along with five model settlement documents. EPA hopes that

use of these models will lead to speedy

and consistent settlements across the

c o u n t ry. The guidance explains the

various uses of the 122(h) authority,

ranging from limited past cost re c o ve ry settlements to broad, site-wide

“cashout” settlements for qualifying

p a rties. 

Expedited “cashout” settlements

will be available for “peripheral parties.” Peripheral parties are those parties who, for reasons of finances or fairness, are not the focus of CERCLA

e n f o rcement activities. Although not

technically de minimis or de micro m i s ,

peripheral parties include those with a

documented inability to pay and those

for whom unresolved CERCLA liability

is not only an extreme burden, but also

whose request for settlement is supp o rted by compelling equities. Off e ring these peripheral players an early

cashout settlement will reduce their

transaction costs, provide them with

peace of mind, and make the Superfund process fairer for all concern e d .

The guidance discusses in more detail

when these peripheral party settlements may be appropriate and when

the administrative forum is the right

one for such settlements.

The cashout option does not re p resent a change in EPA’s enforc e m e n t

p o l i c y. EPA’s central goal has been and

continues to be obtaining perf o rm a n c e

of site cleanups from potentially responsible parties. Most Superf u n d

sites have multiple PRPs, and these

p a rties are encouraged and expected

by EPA to join together and undert a k e

response action cooperatively pursuant to a judicial consent decree or, in

instances where removal action is involved, an administrative order on consent. Cashout settlements are an additional CERCLA settlement tool,

limited to situations in which EPA believes the settling PRP is not in a position to undertake a response action either individually or collectively with

other PRPs, but is able to make a cash

payment to address past and future response costs at the site. 

The guidance, entitled, “Guidance

on Administrative Response Cost Settlements under Section 122(h) of CERCLA and Administrative Cashout Settlements with Peripheral Part i e s

under Section 122(h) of CERCLA and

A t t o rney General Authority,” includes

model administrative agreements for

past cost re c o v e ry, for cashing out

ability to pay peripheral parties, and

for cashing out non-ability to pay peripheral parties. For more inform ation, contact Janice Linett

( E PA/OSRE) at 202-564-5131, or To m

Mariani (DOJ) at 202-514-4620.

Model Language for

Federal PRPs

E PA has been using a model consent

d e c ree for remedial design/re m e d i a l

action since July 1995. However, re v isions to the model were needed for

CERCLA liability claims against the

United States that are based on the actions of federal agencies that are potentially responsible parties (Federal

PRPs). In December 1998, EPA and

DOJ revised the model to address the

most common settlement circ u mstance, where federal PRPs do not perf o rm the work, but instead make a

lump-sum payment to cover an allocated share of the costs of the work

and other response costs at issue. 

The key changes are in certain definitions, the payment provisions, the

covenants, re s e rvations, and contribution protection. Because they are cashing out, the federal PRPs’ payment will

generally include a premium to cover

the risk that the work will cost more

than expected, and a further pre m i u m

to the extent that federal PRPs are excluded from liability for additional response actions. Where a diff e rent payment pro c e d u re for a federal PRP

settlement is used (such as a “pay-asyou-go” settlement where private PRPs

p e rf o rm the work and bill the federal

PRPs periodically), additional changes

to the payment provisions will be nece s s a ry. 

Federal PRP payments to resolve liability or judgments against the U.S.

g o v e rnment generally are made by the

D e p a rtment of the Tre a s u ry from the

Judgment Fund as soon as re a s o n a b l y

practicable after the consent decree is

e n t e red. With respect to re s p o n s e

costs incurred by EPA, those payments will be made directly to the Haza rdous Substances Superfund; the

transfer will be made using the federal

g o v e rn m e n t ’s inter-agency electro n i c

funds transfer system. If such payments are not made within the time period provided for private PRP payments, interest on the Federal PRP

s h a re will be paid to the Superf u n d

commencing on the effective date of

the consent decree (this is an earlier

i n t e rest commencement date than for

private PRP payments). 

These model revisions should expedite the drafting and negotiation of

settlements in which federal PRPs participate. For more information, contact

John Wheeler, OSRE, 202-564-4284.
Cleanup News 3

I

t seems nothing is out of the re a c h

of the Year 2000 Millennium Bug,

including Superfund sites. The

O t t / S t o ry Cordova Superfund site

near Muskegan, Michigan was recently surveyed by the U.S. Arm y

Corps of Engineers for Y2K pro b l e m s .

The Corps found that critical plant cont rol software, if not updated, could disrupt the effective treatment of contaminated gro u n d w a t e r. “We are taking

Y2K very seriously,” said Steve Luftig,

D i rector of EPA’s Superfund Pro g r a m .

“ We need to be able to assure the public that we have taken the appro p r i a t e

steps to pre p a re all vulnerable sites for

possible Y2K problems and are re a d y

to respond in case of an enviro n m e n t a l

e m e rg e n c y,” said Luftig.

A Superfund Y2K Steering Committee was formed to look at remedial and

removal sites where there may be potential computer and equipment pro blems. The steering committee identified five basic steps the regions need to

take to ensure that Superfund sites are

Y2K pre p a re d :

1 . Notify PRPs of their re s p o n s i b i l i t y

to check sites.

2 . S c reen all fund-lead sites (O&M

and Long-term Response Action

s i t e s ) .

3 . S c reen all other sites for potential

p roblems (non-NPL removal sites,

state-lead, federal facilities).

4 . Use CERCLIS database to track

sites that have been Y2K pre p a re d .

5 . Notify communities that sites in

their area have been Y2K prep a re d .

The removal program is also taking

steps to pre p a re for emergency reS u p e rfund Takes Steps to 

P re p a re Sites for Y2K

sponse situations as a result of Y2K

system failures. “One of the most critical elements during a Y2K re s p o n s e

will be the reliability of our communication devices and response equipment,” said Luftig. “We are asking the

regions to check satellite phone systems and beepers for Y2K pro b l e m s .

The removal program is also developing an inventory of Y2K-pre p a re d

equipment they may need during an

e m e rgency re s p o n s e . ”

Communicating Y2K information to

the public is also critical. Communities

may want to know if the Superfund site

in their town is Y2K pre p a red. Fact

sheets about Y2K will be used to inf o rm citizens of the status of Superf u n d

sites. “We also need to pay special attention to those citizens who rely on alt e rnate drinking water supplies as a result of a past Superfund removal or

cleanup action,” said Luftig.

“ I t ’s our goal to have all of these

checks in place this summer,” said

Luftig. “We’ve done a good job identifying potential problems and re s p o n s e

c a p a b i l i t y. We have also done a good

job putting a lot of Y2K information on

the Internet for the public to access. We

c e rtainly hope that all our pre p a r a t i o n s

a re not put to the test in the year 2000

but we’re preparing in case they are . ”

For more information about Y2K

p re p a redness in Superfund, please visit

E PA’s Y2K home page at h t t p : / / w w w.

e p a . g o v / y e a r 2 0 0 0 or contact Helen

D u Teau at (703) 603-8761. 

For Y2K stories, a r t i c l e s , and ideas,

ch e ck out OSW’s new Web site:

w w w. e p a . g ov / e p a o s w e r /

o s w / y 2 k / s t o r i e s . h t m

W

hat happens if your Y2K

computer testing results in

e n v i ronmental violations?

Not to worry. EPA will waive civil penalties and recommend against criminal

p rosecution for any environmental violations caused during specific tests that

a re designed to identify and eliminate

Y 2 K - related malfunctions. This policy

is limited to testing-related violations

disclosed to EPA by Febru a ry 1, 2000,

that also meet nine criteria (e.g., systematic design of testing protocols, conducting the tests for the shortest possible period of time necessary,

c o rrecting any testing-related violations immediately, and other conditions

Enforcement Y2K Policy

to ensure that protection of human

health and the environment is not comp romised). Regulated facilities that

wish to test in advance of the Y2K dates

a re encouraged first to utilize any existing re g u l a t o ry or permit pro c e d u re s

that would allow for timely and eff e c t i v e

testing (e.g., RCRA trial burn testing of

h a z a rdous waste; R&D permits. 

E PA’s policy applies not only to the

year 2000 problems but other re l a t e d

computer date problems, such as

9/9/99 (which may be interpreted by

some computers as the end of a file or

i n finity). For more information, consult

the full policy on the Web at h t t p : / /

w w w. e p a . g o v / y e a r 2 0 0 0 .
4 Cleanup News

H e re is a rundown of the re p o rt ’s fin di n g s .

G reater PRP 

I n v o l v e m e n t

E PA has seen an increase in PRP involvement since implementing key fairness re f o rms. Prior to developing initiatives such as orphan share

compensation and special accounts,

E PA ord e red PRPs to conduct re m edial cleanup work in approximately 50

p e rcent of all cases. Since the re f o rm s ,

PRPs have agreed (in consent dec rees) to conduct cleanup appro x imately 66 percent of the time; EPA has

had to order cleanup only 34 percent of

the time (through unilateral administrative ord e r s ) .

Orphan Share

T h rough the orphan share re f o rm ,

E PA shares the cost burden of the orphan share with settling PRPs at every

eligible site. Through FY98, EPA off e red approximately $145 million in orphan share compensation at 72 sites.

Many of the offers made in FY98 were

in the context of cost re c o v e ry negotiations, as EPA has expanded this ref o rm to include these cases. These

numbers demonstrate EPA’s commitment to achieving greater fairn e s s

even where this commitment may result in a significant reduction of the

amounts ultimately re t u rned to the

F u n d .

Remedy Reform Saves

Over $1 Billion

Several re f o rms were aimed at re v i e wing proposed high cost remedies and

updating them with the most curre n t

science and technology. Since 1995,

s t reamlining and improving the re medy selection process has saved over

$1 billion in estimated cleanup costs

for PRPs and the Superfund pro g r a m .

A National Remedy Review Board

(NRRB) was created in January 1996

as a peer review group of EPA managers and technical experts who understand both the EPA regional and

h e a d q u a rters perspectives in the re medy selection process. NRRB re v i e w s

alone have reduced total estimated

cleanup costs by more than $43 million at 33 high-cost remedies. As of

October 1998, EPA and DOE have

a g reed that the Board will review all

DOE non-time-critical removal actions

estimated to cost over $30 million. 

The Updating Remedy Decisions

re f o rm (see box) is one of EPA’s most

successful re f o rms, based on its frequent use and the amount of money

saved. This re f o rm encourages Regions to revisit selected remedy decisions at sites where significant new scie n t i fic information, technological

advancements, or other considerations

suggest an alternative remedy will protect human health and the enviro n m e n t

while enhancing the cost eff e c t i v e n e s s

of the cleanup. From FY96 thro u g h

FY98, EPA and other parties updated

over 200 remedies and generated estimated future cost savings of over $1 billion. Only eight remedy updates generated cost increases (estimated at

a p p roximately $65 million). The average cost of cleanup construction has

d ropped by almost $4 million per project — a decline of over 20 percent —

over the past four years. 

Revitalizing the Land

A high priority is the reuse of form e r l y

contaminated pro p e rties, which often

gives an economic boost to depre s s e d

a reas. EPA has developed a number of

In three years, EPA and other parties updated

over 200 remedies and generated future cost

savings estimated at over $1 billion. 

Updating Remedies

• Auburn Road Landfil l ,M A . New performance data provided the necessary information to update

the selected re m e dy at the A u b u rn Road Landfill. Two years of monitoring and modeling performance data from the site showed that the original pump and treat re m e dy successfully brought

volatile organic compounds below the cleanup levels in most areas. Updating the re m e dy to moni t o red natural attenuation saved an estimated $12 million.

• Allied Chemical/Ironton Coke Site, Lawrence County, O H . The PRP at the site proposed the alternative re m e dy after data collected during the engineering design phase showed that contamination

levels in the soils were not as high as previously thought. The revised re m e dy will replace in-situ

b i o remediation of over 450,000 cubic yards of soil with hot spot ex c avation and wetland development,

and replace incineration of other lagoon materials with re cy c l i n g, t re a t m e n t , and/or disposal of wa s t e

materials in an approved off-site hazardous waste facility, with some remaining soils used as an alt e rnative fuel mixture. The new re m e dy will save approximately $50 million while still ach i e v i n g

cleanup levels that are protective of human health and the environment, and the constructed wetland

will create a valuable ecological habitat for the community.

S u p e rfund Reform s

continued from page 1
Cleanup News 5

t h reaten suit against these very small

contributors, EPA enters into settlements providing contribution pro t e c t i o n .

By publicly offering parties a zero dollar

settlement, EPA has deterred big polluters from dragging de micromis contributors into litigation. The real success

of this method is measured by the untold number of potential lawsuits that the

Agency has discouraged. The low number of sites using de micro m i s s e t t l ements (9 sites through FY98) illustrates

how EPA’s 1993 and 1996 de micro m i s

policies have successfully deterre d

PRPs from pursuing small part i e s .

Community 

I n v o l v e m e n t

E PA believes that communities must

have meaningful opportunities for involvement early in the cleanup pro c e s s

and should stay involved thro u g h o u t

site cleanup. Initiatives such as Community Advisory Groups (CAGs), Te c h n ical Assistance Grants (TAGs), and job

training programs are just a few of the

d i ff e rent strategies to enable contaminated sites to be considered for re d evelopment. They include the Bro w nfield Pilot Projects for non-Superf u n d

contaminated sites, which play a major

role in encouraging the re d e v e l o p m e n t

of potentially contaminated pro p e rt y ;

altering the inventory and listing status

of sites in EPA’s CERCLIS database to

remove associated threats of Superfund liability; and use of EPA’s enforc ement discretion to remove liability barriers that might impede site re u s e

( t h rough prospective purchaser agre ements and comfort/status letters). To

date, EPA has removed over 30,000

sites from CERCLIS and awarded 227

B ro w n field Pilot grants. Another 16

“showcase communities” will re c e i v e

up to $1 million in grants and other aid

to support bro w n field redevelopment. 

Getting the Little 

Guy Out 

Since initiating the re f o rms program in

1993, EPA has removed thousands of

small waste contributors from the Sup e rfund liability scheme. Recognizing

that third - p a rty litigation can inord inately burden small parties, EPA has

used its settlement authority to get

small waste contributors out of Superfund litigation. This eff o rt decre a s e s

transaction costs while increasing fairness and resolution speed. Thro u g h

FY98, the government has completed

settlements with over 18,000 small volume contributors (two-thirds since the

de minimis re f o rm was announced) at

h u n d reds of Superfund sites.

E PA has also sought to protect de mic ro m i s contributors through policies

that double previous eligibility cutoffs in

an eff o rt to discourage third party litigation against de micromis parties. For

such small parties, the cost of legal and

other re p resentation services may actually exceed the part y ’s settlement share

of response costs. If private parties do

ways that EPA is supporting this end e a v o r. In FY98, 14 new CAGs were created, bringing the total to 47. The CAG

concept has been so successful that

other EPA programs have adopted this

a p p roach. EPA released two versions of

a Community Advisory Group To o l k i t

during FY98 to help communities set up

and maintain a CAG. 

Stakeholder feedback indicates that

E PA’s Superfund Reforms have already addressed the main areas of the

p rogram that needed impro v e m e n t .

E PA remains committed to fully implementing the re f o rms, re fining or imp roving them where necessary, and

b roadening their impact by eff e c t i v e l y

communicating the scope, goal, and

success of each initiative. As EPA evaluates each re f o rm, it will continue to incorporate the most successful ideas

into the entire Superfund pro g r a m .

Copies of the Superfund Reform s

Annual Report FY 1998 may be downloaded from the new S u p e rfund Ref o rms Web site at h t t p : / / w w w. e p a . g o v /

s u p e rf u n d / p ro g r a m s / re f o rms/index.htm. 

Comfort Letter Success Stories

• Wo b u r n ,M A . A property owner adjacent to the Industri-Plex Superfund Site was receiving offers of less than half his asking price for his property due to potential ground water contamination. After EPA issued a comfort letter to the property ow n e r, he received the amount he wa s

a s k i n g.

• G l e n d a l e, C A . D re a m wo r k s , the film studio founded by Steven Spielberg, s h owed interest in

buying a large parcel of land on which to build sound stages. How e v e r, the land included a portion of the San Fernando Valley Superfund Site, a contaminated aquifer subject to EPA cleanup

activities. EPA’s comfort letter was able to address Dre a m works’ concern over potential Superfund liability.

“ E PA has demonstrated a steadfast commitment to reducing the anxiety of real estate investors

i n t e rested in properties where contamination, or the threat of contamination, is present. T h r o u g h

a concerted series of EPA Superfund A d m i n i s t rative Reforms and associated Clinton A d m i n i s t ration policy initiatives, a remarkable number of previously abandoned or underutilized properties

a re now being re t u rned to productive use.”

— L awrence Jacobson, D i r e c t o r, Commercial Real Estate Fi n a n c e ,

M o r t g age Bankers A s s o c i ation of A m e r i c a
6 Cleanup News

They include: h t t p : / / w w w.movies. com/

c i v i l a c t i o n ( Touchstone Pictures); w w w.

c i v i l - a c t i o n . c o m ( W.R. Grace); w w w 2 .

s h o re . n e t / ~ d k e n n e d y / w o b u rn . h t m l

(Daniel Kennedy, a Wo b u rn re p o rt e r ) ;

and h t t p / / w w w. g e o l o g y. o h i o s t a t e . e d u /

c o u rt ro o m (a course by Dr. E. Scott

B a i r, Ohio State University, leading to a

mock trial). For information from EPA ,

contact the Superfund Hotline at 800-

5 5 3 - 7 6 7 2 .

A Civil Action

continued from page 1

F a i rmont Coke Wo r k s

Site: Superfund XL

P roject Moves Forw a rd

O

n March 30, 1999, EPA signed

on to a final agreement on conducting a Project XL at the

F a i rmont Coke Works site in West Vi rginia. Participating in the project are :

Exxon Corporation, as the pro j e c t

s p o n s o r, EPA Region 3, West Vi rg i n i a ’s

Division of Environmental Pro t e c t i o n ,

and the Fairmont Community Liaison

Panel. A signing ceremony is scheduled for May 24, 1999.

The Fairmont site is appro x i m a t e l y

50 acres in size, located along the Interstate-79 corridor, and has been

listed on the NPL since December

1996. Exxon had agreed to conduct a

remedial investigation and feasibility

s t u d y, and risk assessment at the site,

but will now conduct an engineering

evaluation and cost analysis instead. 

Under the agreement, Exxon is

committing to: 

• Without a prior finding of enviro nmental risk, demolish and pro perly dispose of all onsite buildings

and stru c t u res for the aesthetic

value to the community as well as

to facilitate redevelopment of the

p ro p e rty; 

• Attract interested developers for

reuse of the pro p e rty to facilitate

the transfer of site ownership; 

• Help demonstrate that early consideration of future beneficial uses is a

desirable and practical aspect of a

S u p e rfund remedial response and

may assist in raising the economic

health of the local community;

• E n s u re early local government involvement in the XL project to provide for future land use planning activities and the identification of

potential land use determ i n a t i o n s ;

a n d

• S u p p o rt the dedication and partnering of the parties and stakeholders involved in the cleanup

and as a result of the project (as

well as programmatic re m e d i a t i o n

mechanisms) achieve a faster,

m o re efficient cleanup of the site.

The agreement will be published in

the Federal Registerwith a 30-day public comment period. For more information, contact Ben Lammie, EPA /

OSRE, 202-564-7126.

New Technology 

P u b l i c a t i o n s

T

he following publications of

E PA’s Technology Innovation

O ffice can be downloaded fro m

the Web site at (http://clu-in.org) or

o rd e red free of charge from NSCEP,

U.S. EPA, P.O. Box 42419, Cincinnatti,

OH 45242, tel: (513) 489-8190 or (800)

490-9198, or online

f rom w w w. epa.gov

/ n c e p i h o m / o rd e rp u b . h t m l .

Technical Pro t ocol for Evaluating

Natural Attenuation of Chlorinated

Solvents in Gro u n d

Wa t e r. P ro v i d e s

guidance for enviro nmental managers on

the steps that must

be taken to understand the rate and

extent to which natural processes are

reducing contaminant concentrations

at sites that are contaminated by chlorinated solvents. Data collected with

this protocol can be used to evaluate

natural attenuation through biological

p rocesses as part of a protective overall site re m e d y. The protocol is the result of a collaborative field and laborat o ry re s e a rch eff o rt involving

re s e a rchers from U.S. EPA/ORD, the

U. S. Air Force, and the U.S. Geological Surv e y. Order #EPA 600-R-98-128. 

Field Applications of In Situ

Remediation Te c h n o l o g i e s :

Ground-Water Circulation Wells.

This report is one in a series that

document recent pilot demonstrations and full-scale applications that

either treat soil and ground water in

situ or increase the solubility and

mobility of contaminants to improve

their removal by other remediation

technologies. It is hoped that this information will allow more regular

consideration of new, less costly, and

more effective technologies to address the problems associated with

hazardous waste sites and petroleum

contamination. Order #EPA 542-R98-009.

O v e rview of the Fairmont Coke Works site.
Cleanup News 7

A

c c o rding to EPA, more than

402,000 chemical accidents

have happened in the last 12

years in the United States. These accidents resulted in nearly 4,000 deaths,

25,300 injuries, and 1,400 evacuations

a ffecting 147,000 individuals. Eighty

p e rcent of these accidents occurred at

industrial and commercial facilities

that store, hold, mix, blend (or otherwise use) chemicals.

Facilities that use chemicals can

have catastrophic accidents. They also

p rovide products and services that are

vital to our economy. EPA’s Chemical

E m e rgency Pre p a redness and Pre v e ntion Office (CEPPO) seeks to balance

these factors by ensuring that facilities

a re doing all they can to thoro u g h l y

understand the chemical and pro c e s s

h a z a rds at a facility, make sure all the

elements necessary to operate a facility work together on a daily basis (i.e.,

p rocess safety management), pre p a re

to quickly minimize the consequences

of accidents that do occur, and communicate this information to workers,

the public and first re s p o n d e r s .

How does EPA ensure that communities and facilities are doing all

Each issue of Cleanup News highlights one of the participating offic e s

E PA’s Chemical Emerg e n cy Pre p a re d n e s s

and Prevention Office (CEPPO) prov i d e s

l e a d e r s h i p, builds partnerships, and offers

t e chnical assistance to:

1 . p revent and pre p a re for ch e m i c a l

e m e rg e n c i e s ;

2 . respond to environmental crises;

3 . i n f o rm the public about chemical 

h a z a rds in their communities; and

4 . investigate chemical accidents.

CEPPO “The Chemical Safety Continuum”

• Chemical Safety Audits. T h e

p r i m a ry objective of the voluntary

CSA program has been to promote hazard identification and accident prevention at facilities handling hazardous substances. The

audits results — which evaluate

chemical process safety management practices and technologies

— are available to the public. The

CSA program has succeeded by

encouraging businesses to apply

their own best judgment to their

operations and to share their audit

experiences and re c o m m e n d ations with other industry part n e r s .

• Accident Investigations.

C E P P O ’s accident investigators

use existing EPA authorities to det e rmine root causes of major accidents and then to issue “lessons

l e a rned” alerts for the chemical ind u s t ry, or to consider new re g u l at i o n .

• General Duty Clause. T h i s

clause makes all owners and operators of facilities that have ext remely hazardous substances responsible for ensuring that their

chemicals are managed safely. F acilities subject to GDC are req u i red to: 1) identify hazard s

which may result in chemical releases; 2) design and maintain a

safe facility; 3) take necessary

steps to prevent releases; and 

4) minimize the consequences of

releases that do occur. 

For more information, contact Julie

Vanden Bosch, 202-260-7952.

they can to pre p a re for — and pre v e n t

— catastrophic chemical accidents?

How do we ensure that companies are

looking at their activities as a safety

continuum? We do it by working with

our partners in state and local government, private industry and the community to implement the following collection of integrated chemical safety

a c t i v i t i e s :

• E P C R A . The Emergency Planning and Community Right-toKnow Act is the first stop on the

safety continuum. EPCRA cre a t e d

State Emergency Response Commissions and Local Emerg e n c y

Planning Committees, and req u i res them along with facilities

and communities to plan for chemical emergencies. The Risk Management Program will further the

continuum by focusing on pre v e ntion of accidents in the first place.

• Risk Management Pro g r a m .

E PA will re q u i re appro x i m a t e l y

50,000 facilities to provide important catastrophic accident pre v e ntion data to the public beginning

June 21, 1999. The new inform ation will help facilities identify and

c o n t rol on-site hazards thro u g h :

h a z a rd assessments, including

worst-case release and altern a t i v e

release scenarios; accident pre v e ntion activities, such as use of special safety equipment and employee training programs; a

five-year accident history; and facility emergency response programs and plans. The inform a t i o n

will allow community members to

see how local facilities are working

on a daily basis to prevent accid e n t s .
8 Cleanup News

Homestake Mining

I

n United States v. Homestake Mining Company of California, Civ. 90-

5101, (W.D.S.D. Feb. 19, 1999), the

C o u rt upheld EPA’s final dispute decision to conduct an ecological risk assessment as part of its five-year re v i e w

for the Whitewood Creek Superf u n d

Site, and ord e red modification of the

consent decree to permit a limited assessment to address existing data gaps. 

Whitewood Creek was deleted

f rom the NPL in November 1995, and

the consent decree was terminated in

J a n u a ry 1996. The following January,

Homestake pre p a red a five year review re p o rt and status re p o rt on the

site and sent it to EPA. In September

1997, EPA requested that Homestake

conduct an ecological risk assessment

as part of the five-year review for the

site. Homestake argued that EPA’s request to conduct the assessment was

outside the scope of the Record of Decision and consent decree. 

After an informal period of dispute

resolution, EPA, concerned about delays, withdrew its request that Homestake conduct the assessment and decided to proceed on its own. Homestake then filed a motion with the U.S.

District Court for the District of South

Dakota to enforce the terms of the consent decree or to modify that decre e .

The court first determined that a dispute existed under the terms of the consent decree and in a subsequent ru l i n g ,

sent the issue back to the EPA for a

final administrative decision. 

In November 1998, EPA issued a

Final Dispute Decision in accord a n c e

with the terms of the dispute re s o l ution provision of the consent decre e .

E PA determined an ecological risk assessment was necessary because: (1)

data gaps existed in the original assessment conducted for the site; (2) a

l a rge amount of contaminated tailings

remained on-site; (3) the state and federal trustees were concerned about

the need for an assessment: and (4) recent EPA guidance, which emphasizes

s i t e - s p e c i fic considerations as a basis

for further study of enviro n m e n t a l

conditions at a site, supported doing

an ecological risk assessment here .

The court held that EPA’s Final Dispute Decision was not arbitrary and

capricious. It noted that neither the language of the consent decree nor the

statement of work limited EPA’s ability

to perf o rm further studies, including an

ecological risk assessment, at the site.

The court explained furt h e r, however,

that it was going to grant Homestake’s

motion to modify the decree because

E PA’s finding that the original assessment was insufficient constituted a sign i ficant change in factual conditions

such that a modification of the consent

d e c ree was necessary.

N e v e rtheless, the court held that

“ E PA has every right to conduct tests at

the Site as part of the five-year review to

a s c e rtain the efficacy of the re m e d y

chosen.” It determined that EPA could

conduct a limited study to fill in the data

gaps of the original assessment. It also

held that Homestake should either conduct the limited assessment or compensate EPA for reasonable costs. Fin a l l y, the court noted the modific a t i o n

did not limit Homestake’s re s p o n s i b i lity to address the findings of a the assessment or findings of other activities

re q u i red under the five-year re v i e w.

For more information, contact Ben

Lammie at 202-564-7126 or Richard

Sisk at 303-312-6638. 

NEJAC Subcommittee

Holds Fact-finding 

Tour of Waste Tr a n s f e r

S t a t i o n s

O

n Febru a ry 16-17, 1999, the

Waste and Facility Siting Subcommittee of the National Env i ronmental Justice Advisory Council

(NEJAC) hosted a two-day fact-fin d i n g

tour and forum on Waste Transfer Stations in the District of Columbia (Region 3). This was the second such eff o rt; a similar session was held in New

York City (Region 2) in November.

The meetings’ purpose was to gather

i n f o rmation from every level of stakeholder on the impact of transfer stations on the communities surro u n d i n g

them. The subcommittee is pre p a r i n g

a re p o rt to NEJAC with re c o m m e n d ations for EPA as it develops national

policy and guidance. Contact: Bre n d a

M. Williams-Robinson, 202-564-4291.

$13 Million Settlement

in Bayou Bonfouca

Case, Slidell, LA. 

In Febru a ry, the U.S. and State of

Louisiana settled a CERCLA Section

107 cost re c o v e ry litigation for $13 million against Alabama Great Southern

R a i l road Company in Region 6 (United

States v. Braselman Corporation, et al.,

C.A. No. 96-0872). The court had found

AGS liable as an owner (lessee) for the

period 1882 to 1886, and as an owner of

the tracks which were found to be CERCLA facilities from 1902 to 1972. Tr i a l

was scheduled to begin on Febru a ry

23, 1999, to determine whether AGS

was jointly and severally liable. The settlement occurred following intense negotiations supervised by U.S. Magistrate Judge Alma Chasez. The terms of

the settlement will now be incorporated

in a consent decree, which the part i e s

have agreed will be based upon EPA ‘s

model CERCLA consent decree. 
Cleanup News 9

A

l t e rnative dispute re s o l u t i o n

was a useful tool in facilitating

a settlement among the defendants at the Helen Kramer Landfill Sup e rfund Site in Mantua County, New

J e r s e y. The litigation was complex and

contentious, but after the mediators

became involved, the settlement talks

w e re able to encompass a wider gro u p

of defendants.

A remedy at the site was perf o rm e d

by EPA through an interagency agre ement with the Army Corps of Engineers. It involved capping over 80 acre s

of landfill, encircling the landfill with an

i m p e rvious slurry wall about one and a

half miles long, and installing gas and

leachate collection and treatment systems. The cost of the work was estimated at $80 million. Study, design, and

e n f o rcement costs increased the

United States’ claim by an additional

$15 million, plus enforcement costs and

p rejudgment interest of $29 million.

Cost re c o v e ry litigation was originally re f e rred to the Department of

Justice in 1989. However, the judge

stayed the litigation for four years to

allow approximately 250 direct and

t h i rd - p a rty defendants to perf o rm an

allocation of liability to facilitate a settlement. When the final allocation rep o rt was rejected by the part i c i p a n t s

after four years of work, EPA and the

D e p a rtment of Justice litigated the liability phase of the case vigorously to

move it toward resolution, whether by

adjudication or, as eventually happened, by settlement.

Active and zealous litigation by the

g o v e rnment resulted in favorable ru lings by the court which induced the defendants to begin serious settlement

negotiations in 1997. A key court ru l i n g

in 1998 related to the statute of limitations allowed the United States to sue

additional defendants. Agreeing with

the United States arguments, the Court

held that the United States’ amendment

of its complaint within three years of

completion of remedial action was a

“subsequent action” not barred by the

statute of limitations. That decision

b rought several recalcitrant defendants

with large allocated shares into the settlement process. 

Enter ADR

Notwithstanding their renewed interest in settling the case as the tide of litigation began to run against them, the

defendants remained incapable of

a g reeing among themselves as to how

much each should pay. At that point,

E PA off e red ADR to break the logjam,

p roviding funding for a “convener. ”

The eff o rts of the convener enabled a

l a rge group of defendants to set their

priorities and to retain two experienced mediators. ADR proved cru c i a l .

The lead attorney for the defendants

was so impressed by EPA’s convener

that he wrote a letter of appreciation to

E PA’s Administrator. The mediators

w e re actively involved in the case and

w e re instrumental in bringing various

factions into the settlement. They had

to find ways to get the defendants to

deal with a large orphan share, de minADR Closes the Deal at the

Helen Kramer Landfill

i m i s p a rties, defunct companies, insurance companies, and 44 municipalities,

including the City of Philadelphia.

ADR facilitated the $95 million (plus

i n t e rest) settlement that included all

the United States’ viable defendants

and 220 third - p a rty defendants, including all 44 municipalities. 

The final settlement, entered by the

C o u rt on September 3, 1998, re p resents the re c o v e ry of appro x i m a t e l y

100% of actual, out-of-pocket costs and

about 80% of EPA’s response costs, ind i rect costs, and interest of $28 million. In addition, a separate settlement

of natural re s o u rces damage claims

will protect 151 acres of wetlands to replace those lost at the site. In addition,

the State of New Jersey will not have to

p e rf o rm long-term operation and

maintenance for the next 26 years. 

“ADR was effective in helping the

p a rties overcome the substantial ro a dblocks to settlement, in a way that supp o rted them in their eff o rts,” noted

David Batson, EPA’s ADR Coord i n at o r. “It was also a very innovative situation, in that Judge Simandle, to his

c redit, brought in and supported the

use of ADR. Through the convening

p rocess, he gave the parties the time

to explore how to appropriately use

ADR in the case, and then gave them

the time and flexibility to design an effective ADR pro c e s s . ”

ADR was effective in helping the parties overc o m e

substantial roadblocks to settlement, in a way that

s u p p o rted them in their ef o rt s
10 Cleanup News

Brownfield Cleanups Sweetened 

by the Tax Code

by Karl Alvarez & Becky Brooks

E

PA’s eff o rts toward re d e v e l o ping lands which are abandoned, idle, or underu t i l i z e d

because of real or perceived contamination have received support from a

v e ry unlikely source: the U.S. tax

code. Well, perhaps it’s not so unlikely.

The tax code can offer financial incentives on a scale which defies all other

s o u rces. Section 198 of the tax code

seeks to bring thousands of bro w nfields pro p e rties back into pro d u c t i v e

u s e .

C u rrent environmental liability can

s e rve as a disincentive to re d e v e l o pment of a former industrial site; less

u n c e rtainty exists on suburban or

rural gre e n fields. With high density in

the urban core and existing infras t ru c t u re (roads, sewers, schools,

mass transit), pro p e rty values and

taxes are usually higher in our inner

cities. Demolition or restoration of existing buildings and stru c t u res is often

m o re expensive than new constru ction. The bottom line: all of these

t rends serve as incentives to abandon

the city core in favor of less developed

suburban areas outside of town.

In an eff o rt to minimize such

t rends and encourage bro w n fields redevelopment, on August 5, 1997, Pre sident Clinton signed into law the Ta xpayer Relief Act of 1997, which

included the Bro w n fields Tax Incentive provisions. The changes to the tax

code are designed to “level the playing

field” for bro w n fields pro p e rties. The

b ro w n fields incentive allows taxpayers to deduct from their net income

the costs of certain cleanup activities

in targeted areas in the year incurre d .

Four eligibility criteria focus the inc e n t i v e ’s impact on lower income,

urban, commercial/industrial are a s .

Eligible pro p e rty must fall into at least

one of the following four categories: 

1 . Census tracts with a poverty rate

of 20% or more .

2 . Census tracts with populations of

less than 2,000 people which are

m o re than 75% zoned commercial/industrial and adjacent to a

census tract with a poverty rate of

20% or more .

3 . All federally designated Empowerment Zones or Enterprise Comm u n i t i e s .

4 . E PA Bro w n fields Pilot sites designated prior to Febru a ry 1997.

To assist taxpayers in determining the

eligibility of their specific pro p e rt y,

E PA has developed a fact sheet which

details all available sources of criteria

i n f o rmation. This fact sheet can be

found, along with a series of additional

tax incentive information, on the

B ro w n fields home page at h t t p : / /

w w w. e p a . g o v / b ro w n fie l d s .

On March 5, 1999, OSWER’s Outreach and Special Projects Staff, which

is responsible for implementing the

B ro w n fields program, hosted a National Bro w n fields Tax Incentive

Roundtable in Chicago, IL, to hear

f rom bro w n fields stakeholders on the

incentive. Bankers, lawyers, community activists, developers, accountants,

i n s u rers, engineers, analysts, and public officials from federal, state, and

local governments began a dialogue

on strategies to educate taxpayers on

the incentive, increase use of the incentive, and strengthen the incentive

based on market and business needs.

A summary of the Roundtable proceedings and tools for educating taxpayers and stakeholders will soon be

available on the Bro w n fields home

p a g e .

The Bro w n fields Tax Incentive is

an additional tool in local eff o rts to

marshal funding for revitalization and

redevelopment eff o rts. We re c o g n i z e

that the incentive will not create re d evelopment of bro w n fields, but at least

it can help “sweeten” a potential re a l

estate redevelopment project. 

Karl Alvarez & Becky Brooks work on

the Outreach and Special Projects Staff

of the Office of Solid Waste and Emergency Response.
Cleanup News 11

O

n April 15, EPA awarded the

1999 National Notable Achievement Aw a rds to outstanding

p e rfomers in the Superfund, RCRA

C o rrective Action, and Superfund Enf o rcement programs. 

S u p e rfund Enforcement winners included the all-star cast of the H e l e n

Kramer Landfill in EPA Region 2:

Kathleen Abdus-Salaam, David Batson,

L a w rence Granite, Delmar Karlen, Beverly Kolenberg, and Deborah Schwenk,

with assistance from Department of Justice staff John Joseph, Francis Ly o n s ,

and Deborah Reyher, and John Poserina from Army Corps of Engineers.

(See story on page 9.)

In the category of Technical Enf o rc e r, the award went to Leo J. Mullin

who has been involved in some of the

l a rgest, most complicated, and most

publicly prominent sites in Region 3, including the Keystone Sanitation Site

and Palmerton Zinc Pile Superf u n d

Site. Leo has been a leader in implementing Superfund administrative ref o rms, often in a creative manner. In the

Keystone case, Leo was able to share

his analysis of a PRP’s financial condition with other PRPs, thereby convincing them that the ability-to-pay settlement re p resented a fair payment based

on limited financial re s o u rces. 

The Legal Enforcer winner was

Peter M. Felitti of Region 5 for handling an almost superhuman workload

and achieving superlative re s u l t s .

P e t e r ’s work at Superfund sites has incorporated as many administrative ref o rms as possible, in an eff o rt to accelerate work at sites, allay community

f rustration, eliminate transaction costs

for peripheral parties, and expeditiously recover Superfund monies. 

In addition to handling six Superfund cases, Peter led a TSCA initiative

that resulted in the filing of over 60 administrative penalty actions, filed a

multi-media complaint at the LT V

Steel site, negotiated two administrative orders for air violations by General Motors, and negotiated administrative settlements in both an EPCRA

and RCRA matter. 

William Steuteville, Region 3, received the 1998 On-Scene Coord i n a t o r

a w a rd for his remarkable control over

complex cleanup and community issues during two removal actions in

R C R A

S t a keholder Invo l ve m e n t : Stephanie Carr,

Region 1

Leader/Mentor of the Ye a r : M a u reen 

E s s e n t h i e r, Region 3

A d m i n i s t ra t i ve Innova t i o n : Estena McGhee,

Region 3 (joint)

Teams of the Year: Safety Kleen Chester 

Remediation Te a m , Region 3, and RCRA

Amoco-Casper CA Te a m , Region 8

E n v i ronmental Indicator: Lael Butler, Region 4

Technical Innova t i o n : Carol Ann W i t t - S m i t h ,

Region 5

Friend of the State: Ray Sara c i n o, Region 9 

S U P E R F U N D

Site Assessment Manager: Dennis Munhall,

Region 2

G ra n t s / C o n t racts: Carol Hemington, Region 2

Teams: Tar Cre e k , Eagle Pich e r, Region 6

Community Invo l vement Coord i n a t o r : D i a n a

H a m m e r, Region 8

L e a d / M e n t o r : L a u ra W i l l i a m s , Region 8

C o n g ratulations to the other EPA awa rd winners as we l l :

1999 National Notable 

Achievements Awarded

1998 at the Diamond Salvage site in

Wilmington, DE, and the Unattributed

Residential Lead site in Port s m o u t h ,

VA. These complex sites re q u i re d

high pro file removal actions and conc e rned multiple environmental justice

issues. Ensuring open communication

and quickly determining the source of

contamination, Bill won the trust of

the Mayors’ offices, City Council, community groups, and residents in Wi l mington and Port s m o u t h .

Remedial Project Manager of the

Year was R o b e rt L. Stites, Region 8

for his outstanding eff o rts at the Hill

Air Force Base in Ogden, Utah, and

Wa rren Air Force Base in Wy o m i n g .

Recipients of the Outstanding Administrative Innovation Aw a rd (RCRA CA)

included Carl Wa rre n , Region 9, who

t u rned a complex cleanup assignment

at the Chevron re fin e ry site in Hawaii

into a resounding success. Working in

p a rtnership, Chevron, EPA, and the

State of Hawaii moved from diagnosis

to remedy in just three years — several

years faster than at comparable sites —

which saved Chevron $7-10 million.

Wo rd of the part n e r s h i p ’s collaborative

e ff o rts has spread through the regional industry and another Hawaii refin e ry has inquired about doing a similar voluntary corrective action. 

S u p e rfund On-Scene Coordinator of the

Year: Bill Steuteville, Region 3, flanked by

Tim Fields, Acting Assistant Administrator for OSWER, and Peter Robertson, 

Acting Deputy Administrator of EPA .
A D R A l t e rnative Dispute 

R e s o l u t i o n

C E R C L A C o m p rehensive 

E m e rg e n cy Response,

C o m p e n s a t i o n , and 

Liability Act 

(Superfund law)

D O E Department of Energ y

D O J Department of Justice

E P C R A E m e rg e n cy Planning and

Community Right-To -

K n ow Act of 1986 

N P L National Priorities List

( S u p e r f u n d )

O S R E O f fice of Site Remediation

E n f o rcement (EPA )

P R P Potentially Responsible

P a r t y

R C R A R e s o u rce Conserva t i o n

and Recov e ry Act 

( h a z a rdous wa s t e )

S E P Supplemental 

Environmental Project

Cleanup News is a publication of EPA’s Office 

of Site Remediation Enforcement, in cooperat i o n

with the Office of Emergency Response and 

R e m e d i at i o n ,O f fice of Solid Wa s t e ,O f fice of 

Underground Storage Ta n k s , Chemical Emergency

Preparedness and Prevention Offic e , and the

Te c h n o l o gy and Innovation Offic e .

EPA Review Board: Rick Popino, Paul Connor,

Reggie Cheatham, Suzanne Wells,

Jeff Heimerman, Julie Vanden Bosch

Gilah Langner, writer

Robin Foster, SciComm Inc.,designer

To comment on the newsletter, contact Rick Popino (MC-2271A), U.S. EPA,401 M Street SW,

Washington,DC 20460,fax:202-564-0094,e-mail:popino.rick@epa.gov.

For mailing list inquiries,contact Sarah Wallis,SciComm Inc.,7735 Old Georgetown Rd,

Bethesda,MD 20814,fax:301-652-7001,e-mail:swallis@scicomm.com.

c l e a n u pn e w s

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O fficial Business

Penalty for Private Use 

$ 3 0 0

Address Service Requested

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PERMIT NO. G-35

G l o s s a r y Upcoming Internal 

E PA Meetings

Contact: Bob Cianciarulo, 617-918-1330 or 

c i a n c i a r u l o . b o b @ e p a . g o v.

June 22-24

S u p e rfund Focus Foru m

Albuquerque, NM

July 20-22

B ro w n fields Coord i n a t o r s

Boston, MA

July 27-29

National Superfund Policy Managers

Kansas City, MO

August 17-19

Wildlife Applications to 

Remediation Decision-Making

Denver, CO

S p o n s o r s :N I E H S , Texas Tech University, AT S D R , US A i r

F o r c e ,E PA Region 8, D O E . Focus on wildlife exposure

and eff e c t s , and their role in remediation prioritizat i o n

success criteria. C o n t a c t : Ellen H. R o o t s , Institute of

Environmental and Human Health, 8 0 6 - 8 8 5 - 4 5 4 9

x 2 3 0 ,h t t p : / / w w w. i e h h . t t u . e d u / w i l d l i f e .

Sept. 13-15

Industrial Site Recycling Confere n c e

Pittsburgh, PA

S p o n s o r s :E PA , PA Dept. E n v. P r o t e c t i o n , Society of

Western PA .C o n t a c t : E n gineering Society of We s t e r n

PA ,4 1 2 - 2 6 1 - 0 7 1 0 ,h t t p : / / w w w. e s w p . c o m .