District Court Rejects Hercules’ Divisibility of 

Harm Defense for Vertac Site Liability 

In a Memorandum Opinion and Order entered on March 31st, the U.S. District Court of 

the Eastern District of Arkansas reaffirmed its earlier finding that Hercules Incorporated 

is jointly and severally liable for CERCLA response costs for the Vertac Chemical Plant 

Site in Jacksonville, Arkansas. United States v. Vertac Chemical Corp., -- F.Supp.2d --, 

2005 WL 820488 (E.D.Ark., 2005). At issue were the cleanup costs incurred by the 

government with respect to thousands of drums of hazardous waste, above ground media 

(including tanks, vessels, plant equipment, plant buildings, shredded trash and pallets), 

soils, foundations, underground utilities, various off-site areas, groundwater and two 

municipal landfills. 

The 93-acre Vertac Site was originally a federally-owned munitions factory. Around 

1948, the site was purchased by Reasor-Hill Corporation, which used it to produce 

insecticide and herbicide products. Hercules bought the site in 1961 and continued the 

production of herbicides. Hercules buried thousands of drums of pesticide and herbicide 

wastes left by Reasor-Hill. Until late 1964, Hercules released untreated wastewater 

directly into Rocky Branch Creek. These wastes included dioxin. In 1964, it constructed 

a waste water pretreatment system that failed to remove the dioxin. Dioxin is also a 

byproduct of the manufacture of Agent Orange, which Hercules produced for DOD from 

1964-1968. Hercules buried drums containing hazardous wastes from its own operations. 

The drums were stored prior to burial, and leakage occurred at the point of storage and 

during transportation. In 1971 Hercules leased the site to Transvaal, Inc., who then 

purchased the site in 1976 and reorganized as Vertac Chemical Corporation. Vertac did 

not bury its own drums of hazardous wastes, and when it abandoned the site in 1987, it 

left behind about 29,000 drums. Over 15,000 of those were stored outside and exposed to 

the elements. Consequently, many of them were failing. 

In the opinion, the Court rejected Hercules’ divisibility of harm argument with regard to 

the Vertac Site, but agreed with Hercules that it had no liability with regard to the Rogers 

Road Landfill. Hercules had appealed the favorable 1999 cost recovery judgment by the 

Court partly on the grounds that its divisibility of harm argument had not been adequately 

considered. The Eighth Circuit Court of Appeals agreed and remanded the case back to 

the District Court to “address evidence supporting divisibility in light of the proper legal 

standards.” United States v. Hercules, Inc., 247 F.3d 706, 719 (8th Cir., 2001). 

To prove that the harm was divisible, Hercules had to demonstrate that there was a 

reasonable basis for apportionment of a single harm, or that there were distinct harms. In 

its attempt to do so, Hercules argued that it was not liable for the incineration of more 

than 28,000 dioxin-contaminated drums of waste found on-site, because the drums were 

accumulated at least three years after it sold the property to Vertac. The Court found that 

these drums “most likely contained soil contaminated by Hercules’ operations ....” 

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Furthermore, the Court found that the equipment that was used to manufacture both 2,4-

D and 2,4,5-T and that produced dioxin was cross-contaminated by both Hercules and 

Vertac. Thus, Hercules could not show that it did not produce the hazardous substances 

in the drums, or that these hazardous substances were distinguishable from those 

produced by Vertac. Hercules also argued that it was not the source of the contaminants 

in the above ground media and so was not responsible for the costs incurred with respect 

to them. The Court held that Hercules failed to show that it was not the source of these 

contaminants. Hercules also sought to apportion the harm to soils, foundations, 

underground utilities, off-site areas, and groundwater on the basis of the volume of the 

relevant hazardous wastes that Hercules and Vertac produced during the years that each 

of them owned the plant. The Court rejected this argument on the grounds that there was 

no direct correlation between evidence of production volumes based on sales records and 

the volume of wastes released at the Site. 

Although the Court also found Hercules jointly and severally liable for the response costs 

at the related Jacksonville Municipal Landfill Site, Hercules did succeed in convincing 

the Court that it was not liable for the cleanup costs at the Rogers Road Landfill Site. 

The Court found that the evidence supported Hercules’ contention that it did not dispose 

of wastes at that landfill, and the United States was directed to submit a proposed final 

judgment against Hercules with the Rogers Road response costs removed. Co-defendant 

Uniroyal Chemical Ltd. (now Crompton Co./Cie.) was again found jointly and severally 

liable for response costs at the Vertac Site. However, the Court reaffirmed its 1999 

contribution-allocation judgment between Hercules and Uniroyal, which allocated 2.6% 

of the liability for Vertac Site response costs to Uniroyal and the remainder to Hercules. 

For additional information, contact James L. Turner, EPA Region 6, ORC, (214) 665-

3159. 

Johnson Sworn In as EPA Administrator 

On May 2, Stephen Johnson became EPA Administrator. In a statement to EPA 

employees, Johnson said that he was “humbled and honored” to be selected by President 

Bush to lead the Agency. He encouraged transparency in EPA decision-making and 

noted that the United States has become an example internationally for how 

“environmental success and economic growth can go hand-in-hand.” He also 

recommended blending “innovation, flexibility and collaboration at the local, state, 

national, and international levels” to address future challenges. 

Johnson, a 24-year veteran of the Agency, has served as EPA’s Acting Administrator 

since January 28. 

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In Memoriam: EPA Region 4 On-Scene 

Coordinator Gerald Foree 

EPA Region 4 On-Scene Coordinator (OSC) Gerald Foree died April 4 following a 

vehicle accident in Anniston, Alabama, where he was assigned to a lead removal site. 

Foree had worked for EPA for 18 years. Matt Taylor, Acting Branch Chief of the Region 

4 Emergency Response Removal Branch, described Foree as a “gregarious, fun-loving 

guy” with an “exuberant personality.” 

Foree began working for EPA while attending Morehouse College in Atlanta, Georgia. 

He graduated with a degree in chemistry and continued to work with the Agency, 

eventually becoming an OSC and serving in that capacity for the last eight years. He is 

survived by a wife, Shaundra, and a daughter, Robyn Little. Family and friends gathered 

for a celebration of his life on Friday, April 8 at Voices of Faith Church in Stone 

Mountain. 

The EPA OSC website is hosting an online forum where those who knew Foree can leave 

messages for his family. The forum can be accessed at: 

https://www.epaosc.net/viewforum.asp?site_id=1492. 

For additional information, contact Matt Taylor, Acting Branch Chief, Region 4 

Emergency Response Removal Branch, taylor.matt@epa.gov. 

Congressional Hearing Highlights Potential 

Areas of Improvement in Brownfields 

Redevelopment 

In an April 5 congressional hearing, the Government Accountability Office (GAO) 

testified that stakeholders believe current EPA brownfields redevelopment efforts could 

be improved with the addition of several actions, including the implementation of 

performance measures to track progress and the creation of incentives for private parties 

to invest in redevelopment. 

The testimony before a subcommittee of the House’s Committee on Government Reform 

was based on a December 2004 GAO report on EPA’s brownfields redevelopment 

efforts. The report pointed out that EPA provides the majority of its funds to initial site 

cleanup activities, such as site assessments, and that EPA has not yet implemented a way 

to fully measure redevelopment progress. The report said that stakeholders suggested, 

among other things: the elimination of a Brownfields Act provision that makes EPA 

funding inaccessible to anyone who purchased a brownfield site before January 2002; the 

review of revolving loan funds and why they are underutilized; and the implementation 

of a federal tax credit to offset part of developers’ federal income tax with remediation 

expenditures. In addition, the GAO suggested the creation of additional measures to 

track redevelopment progress. 

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In his opening statement at the hearing Subcommittee Chairman Michael Turner (ROhio) said that brownfield sites are abandoned and unused due to federal environmental 

laws and regulations that encourage the abandonment of contaminated property, and that 

there must be a federal response to a federally-created problem. Chairman Turner 

introduced the Brownfields Revitalization Act (H.R. 4480) last year in hopes of 

encouraging brownfield redevelopment by addressing what he views as the two greatest 

impediments to such actions: liability and cost. H.R. 4480 includes two principal 

components: a tax credit of up to 50% for remediation expenses in certain povertyimpacted areas; and 100% liability relief for potentially responsible parties (PRPs) who 

pay for at least 25% of a cleanup. Chairman Turner said he plans to reintroduce an 

improved version of the bill this year. 

John B. Stephenson, GAO’s Director of Natural Resources and Environment, testified 

that EPA has taken steps to respond to the report’s recommendations. For example, EPA 

has begun work on a data collection tool that will document the progress of state 

voluntary cleanup programs in its evaluation measures. Brownfields Program officials 

are also working with personnel in other EPA program offices to measure the total 

number of acres revitalized through EPA efforts. 

Thomas Dunne, EPA’s Deputy Assistant Administrator for the Office of Solid Waste and 

Emergency Response (OSWER), pointed out that since the passing of the Brownfields 

Law in January 2002, EPA has worked to develop brownfields job training grants, 

created a tax incentive to encourage private investors, and collected data from grant 

recipients for evaluation purposes. Dunne also emphasized that EPA is committed to 

addressing the recommendations in the GAO report. He stated that in response to the 

report, EPA has already requested an expansion of the number of brownfields sites 

eligible for federal funding and prepared a report addressing GAO’s questions about the 

revolving loan funds. 

A summary of the GAO testimony is available online at: http://www.gao.gov/cgibin/getrpt?GAO-05-450T. GAO’s report, Brownfield Redevelopment: Stakeholders 

Report That EPA’s Program Helps to Redevelop Sites, but Additional Measures Could 

Complement Agency Efforts, is available online at: http://www.gao.gov/cgibin/getrpt?GAO-05-94. 

For additional information, contact Robert Kenney, Senior Counsel, 

kenney.robert@epa.gov. 

Superfund Commemorating 25th Anniversary 

with Photo History Project 

EPA is collecting photographs for the 25th anniversary of the Superfund program. EPA 

will use select photos to complement an oral history project and to create an image 

archive, and two photos from each EPA region will be included in a traveling exhibit 

scheduled to begin December 2005. 

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The photos can be of landscapes or people connected with Superfund sites. On the entry 

form that should accompany the photo, submitters are asked to provide a basic 

description of the photo and indicate which of the following categories the photo falls 

under: People and Places, Emergency Response, Use of Technology, 

Reuse/Redevelopment, or Before and After. Only low resolution digital images with 

minor image editing (e.g., minor color and tone changes or removal of dust and 

scratches) should be submitted. If a photo is selected, EPA will request a high resolution 

electronic file of the photograph. 

The complete guidelines for submitting photos and the entry form are available on 

Superfund’s 25th Anniversary Photograph History Project website at: 

http://www.epa.gov/superfund/action/process/photo/index.htm. Photos must be received 

by July 1, 2005. 

Man Sentenced in Idaho Illegal Paint Disposal 

Case 

On March 10, 2005, the U.S. District Court for the District of Idaho sentenced Robert 

Patrick Mominee to five months in prison plus five months in-home detention and a 

$1,000 fine for illegally transporting hazardous waste, a violation of the Resource 

Conservation and Recovery Act. 

Mominee was an employee of Ponderosa Paint. Together with his father-in-law, Paul 

Woods, Mominee planned to illegally dispose of 4,500 gallons of waste paint materials. 

The two men were caught after they transported the waste to Wood's home in Wilder, 

Idaho and burned some of it in a pit. Burning waste paint materials in this manner may 

pollute groundwater and emit toxic chemicals into the air. The owner of Ponderosa Paint, 

Dennis Ellis, offered to pay Mominee and Woods $1 for every gallon of waste paint 

removed from his business in order to save nearly $150,000 in disposal fees. 

Several State and Federal entities investigated the case including EPA’s Criminal 

Investigation Division in Boise, the FBI, and the Idaho Department of Environmental 

Quality. 

For additional information, contact Peter Rosenberg, rosenberg.peter@epa.gov. 

Citizen’s Guide to Institutional Controls 

Released 

On April 7, 2005, EPA issued “Institutional Controls: A Citizen’s Guide to 

Understanding Institutional Controls at Superfund, Brownfields, Federal Facilities, 

Underground Storage Tanks, and Resource Conservation and Recovery Act Cleanups” 

(OSWER 9255.0-98). The document was a collaborative effort of several Office of Solid 

Waste and Emergency Response offices (including the Office of Superfund Remediation 

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and Technology Innovation, Office of Brownfields Cleanup and Redevelopment, Office 

of Solid Waste, Office of Underground Storage Tanks, and Federal Facilities Restoration 

and Reuse Office) and the Office of Site Remediation Enforcement in the Office of 

Enforcement and Compliance Assurance. The guide is intended to complement existing 

EPA program guidance and provide communities with a plain language guide to 

institutional controls (ICs). 

ICs are legal or administrative tools (e.g., permits, deed notices, and easements) put in 

place at sites to ensure protection of human health. The question-and-answer style guide 

defines and discusses different types of ICs and explains when they are used; identifies 

who may be involved in implementing, monitoring, and enforcing ICs; addresses 

questions about potential reuse and redevelopment; and encourages citizens to help select 

appropriate ICs and ensure their successful implementation. Input on the guide was 

provided by OSWER offices and OSRE, the Office of General Counsel, the Regional 

program staff and attorneys, and several organizations outside of EPA. 

The final document is available online at: 

http://www.epa.gov/superfund/action/ic/guide/index.htm. 

For additional information, contact Marisa Guarinello, Office of Superfund Remediation 

and Technology Innovation, guarinello.marisa@epa.gov. 

In The Courts 

District Court Allows Liable Party to State a 

Claim Under Section 107(a) of CERCLA 

Vine Street LLC v. Keeling, 2005 U.S. Dist. 

LEXIS 4653 (E.D.Tex. March 24, 2005) 

By David Dowton, Office of Site Remediation Enforcement 

On March 24, 2005, the U.S. District Court for the Eastern District of Texas denied, in 

part, a defendants motion to dismiss for failure to state a claim and held that the plaintiff, 

a potentially responsible party that undertook a voluntary cleanup, is able to state a claim 

under Section 107(a) of CERCLA. 

Vine Street LLC (“Vine”) owns property contaminated with chemicals that allegedly 

were released from dry-cleaning machines operated in a laundromat on the site. In 

addition to claims against prior owners, Vine sued Dow Chemical, the manufacturer of 

dry-cleaning fluid, under CERCLA and state law. Vine brought a claim under both 

Section 107(a) and 113(f) of CERCLA. Citing the Supreme Court’s recent decision in 

Cooper Ind. v. Aviall Services (125 S. Ct. 577 (2004)), the district court dismissed Vine’s 

claim for contribution under Section 113(f) because Vine Street had not been sued under 

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Section 106 or 107(a) or legally compelled to incur cleanup costs. The Court, however, 

concluded that although Vine was liable as an owner under the statute, it found that the 

“unique circumstances of this case” would not bar Vine from bringing a claim under 

Section 107(a). 

The Court acknowledged that most courts have held that a liable party cannot state a 

claim under Section 107(a) but noted that in all of those cases the issue was whether a 

potentially responsible party with a claim under Section 113(f) could concurrently bring a 

claim under Section 107(a). Here the situation is different, according to the Court, as 

Vine has no recourse under Section 113(f) since it performed a voluntary cleanup in the 

absence of an action under Section 106 or 107. The court reasoned that a liable party that 

voluntarily works to remedy environmental contamination should not have to wait to be 

sued in order to recover cleanup costs and therefore, Vine can bring a claim under 

Section 107(a). 

For additional information, contact David Dowton, Office of Site Remediation 

Enforcement, (202) 564-4228. 

7th Circuit Allows Citizen Suit Challenging EPA 

Cleanup in Frey v. EPA (Frey II) 

By Clarence Featherson, Office of Site Remediation Enforcement 

On April 6, 2005, the United States Court of Appeals for the Seventh Circuit (the 7th 

Circuit), in FREY v. EPA, F.3d, 2005 WL767057 (7th Cir. 2005) reversed an Indiana 

district court’s decision and will allow a citizen’s suit to proceed under CERCLA Section 

113(h)(4) challenging an EPA cleanup of three Superfund sites in Indiana. The sites are 

contaminated with polychlorinated biphenyls (PCBs), dioxin, and other toxic chemicals. 

The suit was filed by Sarah Frey, Kevin Enright, and the organization Protect Our Woods 

(collectively referred to as "Frey"). 

CERCLA’s Section 113(h)(4) permits a plaintiff to challenge cleanup efforts at 

Superfund sites when a response action is completed. See Frey v. EPA, 270 F.3d 1129, 

1133 (7th Cir.2001) (Frey I ). Frey argued that her suit met the statutory criteria for a 

citizen’s suit because EPA and performing potentially responsible parties (PRPs) have 

completed the designated remedial action under EPA’s administrative record of decision 

(ROD) for the three sites (cleanup of PCBs) and have not yet selected further remedies. 

The district court held that Frey's action was (still) premature because EPA made it clear 

that it is studying further cleanup options for the three sites challenged in the lawsuit: 

Lemon Lane Landfill, Neal's Landfill, and Bennett's Dump. The 7th Circuit, however, 

reversed the district court’s decision and ruled that because EPA failed to provide any 

objective referent by which to measure its progress. The 7th Circuit said in its analysis 

that EPA needs to deal with the issue of whether the record shows that only a stage of the 

remedial action has been completed or if it shows that an entire remedial measure has 

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been completed. The question arose because Viacom, PRP for the site, had completed 

certain targeted excavation at the site, but EPA is actively considering how to deal with 

water treatment and sediment removal for the site. Viacom is conducting investigations 

to provide technical data necessary to inform this decision 

The court’s concern was that EPA could study the water and sediment contamination for 

an indeterminate period of time without taking any remedial action and totally preclude 

judicial review. The court said that for EPA to delay the suit, it must point to some 

objective referent that commits it and other responsible parties to an action or plan. The 

court stated that no such objective evidence exists in this record. The 7th Circuit 

specifically focused on the fact that there is no timetable or other objective criterion by 

which to assess when EPA’s amorphous study and investigation phase may end. It stated 

that EPA cannot preclude review by simply pointing to ongoing testing and investigation, 

with no clear end in sight. 

To reach this conclusion, the court considered the suggested reading of the text of 

CERCLA Section 113(h) to preclude citizen suit review before a response action 

“selected” by EPA is complete. Once the “selected” action is complete, CERCLA 

Section 113(h) does not apply. The court found that EPA had completed the “selected” 

excavation remedy through its ROD process, but had not based on record of this case 

“selected” the water treatment and sediment removal actions. Thus, in this case, plans for 

groundwater and sediment actions cannot reasonably be characterized as later stages of 

the excavation and there is no evidence of any kind, according to the court, that EPA will 

be doing anything specific in the future with this site. 

The court stated, “We conclude only that there must be some objective indicator that 

allows for an external evaluation, with reasonable target completion dates, of the required 

work for a site. (Although we are sure that EPA would not try to avoid the statute by 

submitting a 100-year plan, we note that such a target date would obviously be 

unreasonable.)” 

Background 

On April 20, 2000, Sara Frey and other plaintiffs filed a citizen suit under CERCLA 

challenging various aspects of the cleanup of three related hazardous waste sites in the 

Bloomington, Indiana area. On January 13, 2003, EPA filed a motion for summary 

judgment on the grounds that the remedial actions being challenged were not complete 

(EPA is presently conducting investigations and is in the process of deciding what 

additional remediation needs to be taken) and thus, the plaintiffs’ challenge is barred by 

CERCLA Section 113 (h)(4). In granting EPA’s motion for summary judgment, the 

court expressly rejected the plaintiff’s position that it may sue when one stage of the 

remedial action is complete, but before further action has been taken. The court cited its 

decision in Frey I (also involving Sara Frey) which held that CERCLA Section 113(h)(4) 

(although allowing judicial review of operations and maintenance after remediation is 

complete) bars litigation when EPA is undertaking “active steps” to implement a remedy. 

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For additional information, contact Clarence E. Featherson, Office of Site Remediation 

Enforcement, (202) 564-4234. 

Tidbits 

Memo Reaffirms Commitment to Cost Recovery 

On April 5, the management of the Office of Enforcement and Compliance Assurance, 

the Office of Solid Waste and Emergency Response, and the Department of Justice’s 

Environment and Natural Resources Division sent a memo to the Regional directors 

reaffirming EPA and DOJ’s commitment to cost recovery. The memo was signed by 

OECA Acting Assistant Administrator Thomas Skinner, OSWER Deputy Assistant 

Administrator Thomas Dunne, and DOJ ENRD Assistant Attorney General Thomas 

Sansonetti. The memo asserts that cost recovery provides money to the Superfund Trust 

Fund for use at other sites and reinforces EPA’s “Enforcement First” strategy which 

encourages potentially responsible parties (PRPs) to perform the work at Superfund sites. 

Recovering costs when PRPs have been identified is also a stated goal of CERCLA. The 

memo stressed efficiency in cost recovery and encouraged the Regions to focus on cases 

with past costs over $200,000. 

A Superfund 120-Day Study requested by Acting Deputy Administrator Stephen Johnson 

in 2004 suggested that senior management in EPA and DOJ “affirm their commitment to 

cost recovery.” 

Collaborative Cleanups: Revitalizing America's 

Communities - May 23-24, 2005 

Please join us May 23 and 24, 2005 at the Keystone Resort in Keystone, Colorado for a 

community-based meeting on collaborative solutions to complex cleanups. Hosted by 

EPA, this meeting will explore how federal, state and local cleanup agencies and 

communities can collaborate to better integrate complex, multi-site cleanups with large 

scale revitalization and community development planning. 

For more information and to register, visit the conference website: http://emsmx4.sradev.com/uri-ocp/index.cfm 

Calendar 

May 23-24, 2005 

Collaborative Cleanups 

http://ems-mx4.sradev.com/uri-ocp/index.cfm 

Keystone, CO 

CleanupNewsII Issue 20S1 - 9 
cleanupnewsII May 2005 

May 23-27, 2005 

National Association of Remedial Project Managers (NARPM) Meeting 

http://www.epanarpm.org/narpm2005/home.htm 

Phoenix, AZ 

July 12-15, 2005 

2005 Community Involvement Conference and Training 

http://www.epancic.org/2005/overview.cfm 

Buffalo, NY 

Glossary 

EPA Environmental Protection Agency 

CERCLA Comprehensive Environmental Response, Compensation, and Liability 

Act 

DOD Department of Defense 

DOJ Department of Justice 

ENRD Environment and Natural Resources Division 

FBI Federal Bureau of Investigations 

ICs Institutional controls 

OECA Office of Enforcement Compliance and Assurance 

OSC On-scene coordinator 

OSRE Office of Site Remediation Enforcement 

OSWER Office of Solid Waste and Emergency Response 

PCBs Polychlorinated biphenyls 

PRP Potentially responsible party 

ROD Record of decision 

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Subscription Information 

Richard W. Popino, PhD REM, editor-in-chief 

EPA Review Board: Diane Bartosh, Sandra Connors, Karen Ellenberger, Elliott Gilberg, 

Jeff Heimerman, Kenneth Patterson, Neilima Senjalia, Suzanne Wells 

Jami Weisbender, Cheryl Mueller, DPRA, Inc., writers 

Mary Spencer, DPRA, Inc., designer 

To comment on the newsletter, contact Richard W. Popino, PhD REM, at MC-2271A, 

US EPA, 1200 Pennsylvania Ave., NW, Washington, DC 20460, 

email:popino.rick@epa.gov. 

CleanupNews is a publication of EPA’s Office of Site Remediation Enforcement, in 

cooperation with the Office of Superfund Remediation and Technology Innovation, 

Office of Underground Storage Tanks, and Office of Emergency Prevention, 

Preparedness and Response. Past issues of CleanupNews can be found at 

http://www.epa.gov/compliance/resources/newsletters/cleanup/cleanupnews.html 

To be added to or deleted from the hardcopy list, contact Christine Rueter 

at christine.rueter@dpra.com. 

To receive CleanupNews by email, join the listserv at 

http://www.epa.gov/compliance/resources/listserv/cleanup.html. 

We have developed an electronic supplement to the CleanupNews print edition called 

CleanupNews II. The print issue will still be available four times a year, and the 

newsletter will be delivered electronically nine times a year (four issues consisting of the 

print edition text and five issues consisting of supplemental news). 

CleanupNewsII Issue 20S1 - 11