Office of Site Remediation 

Enforcement (2271A) 

Washington, DC 20460 

E

PA 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. interagency agreement seeks to strengthen 

existing partnerships and form new 

ones between EPA and 21 other fedcleanupnews 

eral agencies that have, in the 

Administrator’s words, “a vested interest 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 

Printed on recycled paper 

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 

$13.5M DOI Debt 

Calendar 8 

Glossary 

Cleanup News is a quarterly 

newsletter highlighting hazardous 

waste cleanup cases, policies, 

settlements, and technologies. 

continued on page 2 

Governor Whitman 

Announces Brownfields 

Federal Partnership 

Action Agenda at 

Brownfields 2002 

Interagency Partnership Realized through New Memorandum of 

Understanding Between EPA and NOAA 

T he Office of Solid Waste and 

Emergency Response (OSWER) 

has gained a new Principal 

Deputy Assistant Administrator. 

Barry Breen joined OSWER in December 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 response, underground storage tank, 

and homeland security programs. 

Mr. Breen began his career at 

EPA in the Federal Facilities Enforcement Office before moving to the 

(OSRE). as the Director of 

OSRE from 1996 until his recent 

move to OSWER. ore joining 

EPA, he was Editor-in-Chief of Environmental Law Reporter, the Director of Publications at Environmental Law Institute, a trial attorney in 

the Justice Department’s criminal division, and Assistant to the General 

Counsel for the Army. 

Mr. Breen’s undergraduate degree is from Princeton University 

and his law degree is from Harvard 

Law School. eaches environmental law at American University as an 

adjunct professor. 

Breen New OSWER 

Principal Deputy Assistant 

Administrator 

Winter 2003 

EPA 300-N-03-002 

Issue #11 

The

He w

Bef

He t
news 

New Director of OSRE, 

Susan Bromm 

T aking the helm after years of In addition to her previous and 

experience with OSRE as current leadership roles in OSRE, 

Deputy Director and 20 years Bromm served in the Waste Programs 

overall experience with EPA, Susan Enforcement office, formerly part of 

Bromm has deservedly assumed the OSWER. She brings a wealth of enposition of Director of OSRE. Her forcement knowledge to her new role 

new responsibilities include oversee- as OSRE Director, having helped estabing enforcement aspects of EPA’s haz- lish policies on waste enforcement, penardous waste cleanup programs includ- alties, and site cleanup while directing 

ing CERCLA (Superfund), RCRA cor- the RCRA enforcement program. 

rective action, Underground Storage Bromm holds a law degree from 

Tanks, and Oil Pollution Act. Bromm Georgetown University Law Center and 

replaces Barry Breen, who recently is a member of the District of Columbecame the Principal Deputy Assis- bia bar. 

tant Administrator of OSWER. 

Interagency through the collaborative efforts of both


agencies. As the government agency
 Agreement overseeing coastal and marine re-


continued from page 1 sources, NOAA plays a valuable role in


redeveloping coastal areas while protect-


Administration (NOAA). There are ing coastal resources. Many coastal


already 100 “specific commitments” communities have been reliant on the


to partnering in place under the fishing industry and manufacturing, two


agreement, including a commitment sectors hit by recent economic trends


by NOAA to redevelop and reuse and international competition. Selected


ports and harbors. EPA and NOAA as a Brownfields Showcase Community


signed a Memorandum of Under- in 1997, New Bedford has explored tour-


standing (MOU) on January 14, 2003 ism as one tool to revitalize their harbor


in New Bedford, and fuel the lo-


Massachusetts. 

This MOU reaffirms the partnership on brownfields 

between the two 

where a brownfield once stood, or 

a bustling office building where 

an empty and abandoned factory 

In addition to 

the commitments outlined in the 

agencies that has once loomed, I am reminded of MOU, NOAA 

been in place since 

1997. Marianne 

Lamont Horinko, 

how much good we can do when 

we work together as partners.” 

will continue to 

provide the 

city of New 

Assistant Adminis- Christie Todd Whitman Bedford with 

“Every time I see a ballfield cal economy. 

Libby Asbestos 

Update 

In December 19, 2002, a federal judge 

in Missoula, Montana found defendants 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 number of issues are resolved. EPA has 

spent over $55 million in response 

costs since November 1999 and has 

continued emergency response activities since the site was proposed to 

the NPL in February 2002. Emergency remediation and restoration 

work continues and should be largely 

complete in 2003. The cost recovery 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 capricious 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 processing facilities rather than a removal action; and (3) that EPA exceeded 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 processed 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 

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—


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. 

2 cleanupnews 
Cleanup Decision Announced for 

Lower Fox River 

news 

On January 7, 2003, EPA and sequences of years of logging and pa- Butte des Morts and eventually other 

the Wisconsin Department of per manufacturing in the region. areas. Current estimates are that 

Natural Resources (DNR) Seven paper mills have been identi- fishing advisories for Little Lake 

signed a Record of Decision (ROD) es- fied as potentially responsible parties Butte des Morts could be lifted 1-3 

tablishing the final cleanup plan for in the PCB contamination of the years after cleanup is complete since 

two operable units of the Lower Fox Lower Fox River and Green Bay, which the selected remedy includes aggresRiver site: the Little Lake Butte des occurred between 1954 and 1971. sively removing contamination. It 

Morts and the Appleton to Little Rap- PCBs generated during the manufac- may be as much as 100 years before 

ids sections of the Lower Fox River. turing and recycling of carbonless recreational fishing advisories posted 

The entire Lower Fox River site in- copy paper were dumped into the for Green Bay, currently selected for 

cludes a total of 5 operable units (OUs) Lower Fox River and eventually mi- natural recovery, are lifted. Fish conand spans the length of the Lower Fox grated to Green Bay. sumption advisories have been in 

River (approximately 39 miles) and part Weighing concerns about losing place in the region since 1976. 

of Green Bay. “Choose Wisely: 

The selected A Health Guide for 

remedy for Little Eating Fish in WisLake Butte des consin,” a publicaMorts (OU1) in- tion created by Wiscludes hydraulic consin DNR, exdredging of 784,000 plains the current 

cubic yards of con- fish advisories to the 

taminated sedi- general public. It adment; dewatering vises consuming no 

the sediment, treat- more than one meal 

ing the water, and a month or 12 meals 

restoring the treated per year of walleye, 

water to the river; 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 northern pike, white 

and disposal of the is completed, some fish advisories will eventually be lifted. bass, white perch,

sediment in an approved 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 estimated cost of $9 million. Some 

PCBs were removed from this area between 1998 and 1999, and it was determined 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 protective levels. 

A ROD is expected for the remaining three operable units in June 2003. 

Potentially Responsible Parties 

Identified 

Green Bay and the Lower Fox River 

have suffered the environmental conjobs in the region against effective 

cleanup, several state legislators in December 2002 suggested that regulators 

consider mediation with the potentially 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 subsistence fishermen, though enthusiasm about catches is dampened by fish 

consumption advisories. After dredging and removing contaminated sediment from the Lower Fox River, the 

Wisconsin DNR and EPA hope to be 

able to lift the existing fish consumption advisories for the Little Lake 

and smallmouth 

bass from the area 

of the Lower Fox River between 

Little Lake Butte des Morts to the 

dam at DePere. The advisory advises avoiding consumption of carp 

from this area altogether. 

U.S. Army Corps of Engineers 

May Play Role in Cleanup 

Pending approval by the House-Senate 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. 

cleanupnews 3 
Cameron Station Transformed


With newly planted trees 

and recently built houses, 

Cameron Station—a 2,000-

unit planned community of single-family homes, town homes, and condominiums—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 Alexandria parks. 

Cameron Station military complex, which served as a general depot 

beginning in 1941 and eventually became the Headquarters for the Defense Logistics Agency, was slated 

for closure in 1988. During closure 

activities at the site, the Army identified PCBs, dioxin, lead, pesticides, 

petroleum hydrocarbons, trichloroethylene, and chlorinated hydrocarbons 

in soil and groundwater at the site. 

A total of 12 operable units were defined for the site. Cleanup activities 

included removing leaking underground storage tanks and PCBs from 

transformers, excavating contaminated soil, cleaning sewer traps, and 

asbestos removal. A groundwater 

treatment system was constructed to 

treat groundwater, which was found 

to be contaminated with trichloroethylene. Activities ceased at the complex 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 remaining 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 opportunities, and through additional planned 

development, will include athletic 

fields, tennis, volleyball, and basketball courts, and a regional bike trail 

along the Backlick Run Stream. 

For more information contact, Mark 

Stephens, EPA Region 3, (215) 814-3353. 

news 

Innovative Approach Proves Key to 

Forest Glen Redevelopment 

T

he remedy for the Forest Glen 

Mobile Home Subdivision 

Superfund Site is a first in the 

State of New York. Its remedy alCherokee and Goodyear expressed 

interest in developing the land, the 

Town of Niagara and the City of 

Niagara Falls (the site straddles both) 

structed, Goodyear has plans to erect 

one building on top of it, while Cherokee has the option of building three 

more. The structures will most likely 

lows for productive land reuse, made worked together to rezone the site to accommodate light manufacturing oppossible by a groundbreaking part- support commercial/light industrial erations or warehousing facilities. 

nership between the main PRP and development. The ROD was rewrit- The soil and groundwater rema private real estate investment fund. ten to reflect the zoning change. edies are due to be completed in SepCherokee Investment Partners EPA and Goodyear reached a tember 2003. The soil remedy was 

worked with Goodyear Tire & Rub- settlement in January 2001. Goodyear originally due to be completed in May 

ber Company, EPA, and state and agreed to reimburse EPA $9 million but has been delayed by severe winlocal government to ensure that the for incurred cleanup costs and dam- ter weather. A monitored natural atsite was developed. According to age to natural resources resulting from tenuation study will likely be comGloria Sosa, the Site RPM, “Eventu- the contamination. They also agreed pleted by the end of February, and 

ally [Goodyear] would have settled, but to pay $16 million to cover the remain- the groundwater remedial design 

understanding that the site would be ing cleanup costs. This figure includes should be completed in June. 

put back into productive use really the groundwater remedy (i.e., con- The 39-acre Forest Glen site inhelped them to settle.” structing groundwater extraction wells cluded a former mobile home park. 

The original remedy called for and a system for conveying the ex- 153 people had to be permanently resoils contaminated with polycyclic aro- tracted water to an off-site publicly located between 1990 and 1992. The 

matic hydrocarbons and semi-volatile owned treatment works and construc- site was listed on the NPL in 1989. 

organic compounds to be contained in tion of a flat, impermeable cap over For more information, contact Gloria 

a single mound and fenced off. When contaminated soil. Once the cap is con- Sosa, EPA Region 2, (212) 637-4283. 

4 cleanupnews 
DOJ Seeks $40 

Million From the City 

of New Orleans, 

Private Parties Under 

CERCLA 

United States v. City of New 

Orleans; CFI Industries, Inc., 

formerly doing business as 

Lettellier Phillips Paper Company; 

Delta By-Products, Inc., Edward 

Levy Metals, Inc., Civil Action No. 

02-3618, E.D. Louisiana 

T he Department of Justice, on 

behalf of EPA, filed a complaint 

against the City of New Orleans 

and three private companies on December 6, 2002, for recovery of response 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 Eastern District of Louisiana. The City 

owned and operated the landfill when 

hazardous substances were being disposed on-site. The three private party 

defendants had each conducted salvage operations at the site. 

The cost recovery action seeks reimbursement 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 Orleans for their alleged failure to comply with a unilateral order for access 

between March and April 1999. The 

penalties also address each day after 

January 28, 2001, when the City allegedly failed to respond to an information request originally filed in November, 2000. 

The City began using the site as 

a dump and disposal area for residential, 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 onsite under contract with the city. Between 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 National 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 investigation integrated with removal actions. 

Fieldwork was completed rapidly, and 

by May 1994, a fence had been installed around the undeveloped area 

of the site and highly contaminated 

soils at a children’s play area had 

been removed. The site was proposed 

to the NPL on August 23, 1994 and 

formally added on December 16, 

1994. Work continued throughout 

the 1990s, and close-out reports were 

signed in July of 2001. 

For more information, contact 

Clarence E. Featherson, (202) 564-4234. 

RCRA Violators 

Sentenced 

United States v. General Waste 

Corporation, Emmanuel N. Ohiri, 

and John Thomas Morris, District 

of New Mexico 

On December 19, 2002, General 

Waste Corporation’s CEO, Emmanuel 

“Manny” N. Ohiri, was sentenced for 

3 felony RCRA storage violations in 

U.S. District Court. Judge Martha 

Vazquez sentenced Mr. Ohiri to 15 

months incarceration and imposed a 

$25,000 fine. Following his release 

he will be under supervised release 

for three years. 

The court’s decision to enhance 

Mr. Ohiri’s guideline range was due 

to his leadership role in the violations 

and for obstructing justice during the 

execution of a federal search warrant 

at General Waste. During the November 1998 search, Mr. Ohiri obstructed justice by covertly removing 

hazardous waste labels from on-site 

drums and putting them in his pockets. He could not be convicted, however, 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 Department was allowed to testify during the sentencing hearing. The labels found in Mr. Ohiri’s pocket could 

only be admitted as circumstantial 

evidence which led to the enhancement of his sentencing guidelines. 

The hearing lasted two days. 

The day prior to the CEO’s sentencing, the same judge sentenced 

General Waste Corporation and their 

Environmental Manager. The company 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 supervised 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 Sentence.” He had waived his right to 

appeal in his plea agreement. At the 

time this article was submitted, 

Judge Vazquez had not made a decision 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 SherwinWilliams 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 

in the courts 

cleanupnews 5 
in the courts 

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 Reimbursement Be Dismissed Without Regard 

to the Petitions’ Merits and, in the 

Alternative, for Additional Time to 

Respond on the Merits.” Environmental Appeals Judges Scott C. Fulton, 

Ronald L. McCallum, and Kathie A. 

Stein reached a final decision in December 2002. 

A 1990 unilateral administrative 

order (UAO), issued by EPA Region 5, 

required the petitioners to perform 

remediation activities including installing a groundwater pump and treat 

system and excavation of PCB-contaminated soil. Since December of 

2000, the pump and treat system has 

been in a trial shutdown. Groundwater 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—including the removal of PCB contaminated 

soil—because the selected groundwater remedy had been arbitrary and 

capricious. 

In August 2002, EPA filed a motion to dismiss the petitions. The Region claimed that the petitions should 

be dismissed due to the petitioners’ 

failure to complete all actions required under the UAO. The motion 

argued that the petitions were premature, as there is ongoing groundwater monitoring at the site and the 

groundwater system is in a trial shutdown until 2005. Finally, the site closure procedures in the UAO have not 

been followed. 

The EAB held that obligations under a UAO are not complete as long 

as additional analysis is proceeding 

and future remediation remains a possibility. 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 affirmed an influential district court decision. 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 hazardous waste sites. The original decision is often cited by PRPs arguing 

that they are liable for only a divisible 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 exception” 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 cannot 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 argument). Additionally, the court found 

Alcan’s analysis of the harm presented 

by its wastes inadequate. 

Finally, the Court of Appeals rejected Alcan’s argument that retroactive 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 Enterprises v. Apfel, 524 U.S. 498 (1998). 

Regarding the written decision in Eastern Enterprises, the U.S. Court of Appeals noted that “it is difficult to discern [in the Supreme Court’s decision] 

a general principle of law that supports [the] appellant’s claim that 

retroactive CERCLA liability is unconstitutional.” 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 Tennessee district court granted the 

United States’ motion for imposition 

of an almost $2 million civil penalty 

against the president of a used oil refining business. Judge Bernice 

Donald found that the defendant, 

William Gurley, had failed to comply 

with CERCLA information requests 

regarding the South 8th Street Landfill 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 penalty 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-compliance. Mr. Gurley refused to acknowl6 cleanupnews 
edge any of the letters until the U.S. 

Marshals’ Service delivered the documents to his wife in August 1992, 

seven months after their initial issuance. 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 connection 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 penalty for failure to respond to the information request. EPA’s request for 

information was found to be valid and 

enforceable, and Mr. Gurley’s failure 

to comply was found to be unreasonable and constituting bad faith. 

In calculating the penalty, the 

court noted that Mr. Gurley’s conduct 

should be punished and that the penalty 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 September 1992, when Mr. Gurley made no 

attempt to respond to the original information request; $1000 per day from 

September 1992 through July 1994, 

when he responded in a cursory manner; 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 information from his deposition. The total 

penalty amounted to $1.9 million. Mr. 

Gurley has filed for bankruptcy, but according 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 unspecified 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 responsible. 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 asbestos 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 Revitalization Act (SBLRBRA), on 

January 11, 2002. SBLRBRA required that the EPA Administrator 

publish guidance in order to assist 

eligible entities in applying for 

grants. As a result three new guidance documents were created. 

The first of the three, the FY2003 

Brownfields Grant Application Guidelines, was issued on October 24, 2002. 

Draft language for the second document—process guidance to be sent to 

the regions to help in Part I of the 

application process—was recently finalized. A draft copy of the third 

document, a new Terms and Conditions statement needed to specify actions needed for the actual Grant 

agreements, will be sent out to the 

states for review once complete. The 

Office of Site Remediation Enforcement (OSRE) worked with the Office of 

Brownfields Cleanup and Redevelopment (OBCR) to develop the guidance. 

For more information, contact 

Phil Page, OSRE, (202) 564-4211. 

$13.5M DOI Debt 

Potentially Referred 

to OMB 

EPA recently sent a letter to the 

Department of the Interior (DOI) regarding $13.5M the Department owes 

to the Superfund Trust Fund for response 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 Assurance (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 refer 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 estimated cleanup costs exceed $40 million. Remediation methods include 

soil removal, ventilation systems, stabilization, and capping. 

For more information, contact Victoria 

van Roden, OSRE, (202) 564-4268. 

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cleanupnews 7 news and notes 
calendar 

March 10-12, 2003 

UST/LUST National Conference 

San Francisco, CA 

Lela Bijou, (703) 603-7145 

bijou.lela@epa.gov 

March 18-20, 2003 

National Superfund Policy 

Managers Meeting (Joint 

Meeting with RCRA Policy 

Managers) 

Dallas, TX 

Nancy Riveland-Har, (415) 972-3251 

riveland.nancy@epa.gov 

May 5-9, 2003 

Superfund New Attorney


Training


This training is offered to EPA,


DOJ, other Federal agencies,


and states.


Washington, D.C. 

Susan Boushell, (202) 564-2173 

boushell.susan@epa.gov 

Jocelyn Scott, (202) 564-4795 

scott.jocelyn@epa.gov 

Glossary


CERCLA	 Comprehensive Environmental Response, 

Compensation and Liability Act 

DNR Department of Natural Resources 

DOI Department of the Interior 

EAB Environmental Appeals Board 

MOU Memorandum of Understanding 

NCP National Contingency Plan 

NOAA	 National Oceanic and Atmospheric 

Administration 

NPL National Priority List 

OBCR	 Office of Brownfields Cleanup and 

Redevelopment 

OCFO Office of the Chief Financial Officer 

cleanupnews


OECA	 Office of Enforcement and Compliance 

Assurance 

OMB Office of Management and Budget 

OSWER Office of Solid Waste and Emergency Response 

OU Operable Unit 

PCB Polychlorinated Biphenyls 

PRP Potentially Responsible Party 

RCRA Resource Conservation and Recovery Act 

ROD Record of Decision 

RPM Remedial Project Manager 

SBLRBRA	 Small Business Liability Relief and Brownfields 

Revitalization Act 

UAO Unilateral Administrative Order 

http://www.epa.gov/compliance/about/offices/osre.html 

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 Preparedness 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 

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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