Supreme Court Issues Ruling in Eminent 

Domain Case 

On June 23, 2005, the Supreme Court ruled in the case of Kelo v. City of New London 

that New London’s planned taking of private property from homeowners for the sake of 

private economic development does not violate the Takings Clause of the Fifth 

Amendment of the U.S. Constitution. That clause (“nor shall private property be taken 

for public use, without just compensation”) places two checks on the power of eminent 

domain: first, that private property owners must be compensated for their taken property 

and, second, that the property must be taken for a “public use.” The central issue in the 

case was whether economic development constitutes a valid public use. Writing for the 

Court, Justice Stevens affirmed that it does, and he was joined in his opinion by Justices 

Souter, Ginsberg, Breyer and Kennedy. Justices Rehnquist, Scalia, O’Connor and 

Thomas dissented. 

The case involves nine petitioners who own various properties in the Fort Trumball 

neighborhood of New London, Connecticut. None of the properties that were condemned 

by the city are considered blighted; petitioner Susette Kelo has made several 

improvements to her riverfront property and another property is the life-long home of 

Wilhelmina Dery who was born there in 1918. The city has purchased most of the 

property necessary for the development, which is to include a hotel convention center, 

retail shops and office space. When the petitioners in this lawsuit refused to sell, the city 

invoked a state statute that permits using eminent domain for economic development. 

Justice Stevens cited a variety of precedents as a basis for interpreting “public use” 

broadly enough to include transferring ownership of land from one private party to 

another as part of a “carefully considered” development plan aimed at benefiting the 

public. He noted that the narrow understanding of “public use” as meaning “use by the 

general public” has been rejected by the Court for a century in favor of the broader 

interpretation that equates “public use” and “public purpose.” And he argued that in the 

case at hand the public purposes included, among others, new jobs and increased tax 

revenues. 

In her dissenting opinion, Justice O’Connor acknowledged that transfer of private 

property via eminent domain to another owner for subsequent private use can be 

constitutional in cases where taking the property directly benefits the public because the 

property’s current use is harmful. But she pointed out that New London did not claim 

that the well-maintained private residences it condemned were the source of any social 

harm; and she emphasized that the intended public benefits of transferring the ownership 

of those properties are of the indirect sort that almost any private use might generate. 

O’Connor wrote: “Under the banner of economic development, all private property is 

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now vulnerable to being taken and transferred to another private owner so long as it 

might be upgraded—i.e., given to an owner who will use it in a way that the legislature 

deems more beneficial to the public—in the process.” 

For additional information, contact Dr. Richard W. Popino, OSRE, (202) 564-5136. 

Risk Assessments Finalized for GE 

Pittsfield/Housatonic River Site 

EPA has finalized two risk assessments—one for human health and one for ecological 

risk—for the “Rest of River” area of the GE Pittsfield/Housatonic River Site in Pittsfield, 

Massachusetts. The “Rest of River” area of the site includes Housatonic River sediments 

and the floodplain from the confluence of the East and West Branches in Pittsfield 

downstream into Connecticut. The risk assessments have been approved after careful 

review by an independent Peer Review Panel and the consideration of comments received 

during two public comment periods. With the risk assessments complete, GE is 

responsible for submitting a proposal for the Interim Media Protection Goals (IMPGs) for 

the “Rest of River” area, according to the terms of the 2000 Consent Decree. The 

IMPGs, which will be the target cleanup levels, are due to EPA in September. 

GE manufactured a variety of products—including transformers, plastics, and 

ordnance—at its Pittsfield plant beginning in 1903. From 1932 to 1977, PCBcontaminated wastes from manufacturing activities entered onsite waste and stormwater 

systems that drain to the East Branch of the Housatonic River and Silver Lake. 

A detailed site history and description, the Consent Decree, maps and photos, and other 

documents are available on the GE/Housatonic River Web site at: 

http://www.epa.gov/region1/ge/index.html. 

For additional information, contact Susan Svirsky, Remedial Project Manager, EPA 

Region 1, svirsky.susan@epa.gov. 

EPA Awards Six Brownfields Grants 

On June 24, 2005, the Office of Brownfields Cleanup and Redevelopment announced that 

EPA has selected six recipients to receive a total of $1.4 million in brownfields training, 

research, and technical assistance grants. The grants will fund efforts to address issues of 

the environment and human health in socio-economically disadvantaged communities. 

The recipients are: the University of North Carolina Charlotte; National Center for 

Neighborhood and Brownfields Redevelopment, Rutgers University; American Planning 

Association; University of Louisville; Northeast Midwest Institute; and Duke University. 

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26 organizations sent applications by the May 1 deadline. Brownfields training, research, 

and technical assistance grants are available to eligible government applicants and nonprofit organizations. 

For additional information, contact Becky Brooks, Office of Brownfields Cleanup and 

Redevelopment, brooks.becky@epa.gov. 

Dredging Plan Approved for Willamette River 

In accordance with an Action Memorandum released June 20, 2005, Northwest Natural 

Gas Company (NW Natural) will dredge 15,000 cubic yards of tar-contaminated 

sediments from the Willamette River in Portland, Oregon and place a protective cap. The 

segment of river to be addressed through this action is the GASCO site, which is part of 

the Portland Harbor Superfund site. NW Natural will complete the site cleanup pursuant 

to the terms of an Administrative Order on Consent with EPA signed on April 28, 2004. 

EPA requested that NW Natural prepare an Engineering Evaluation and Cost Analysis 

(EE/CA) for the site outlining alternative cleanup options. After reviewing the EE/CA, 

EPA determined that the dredging/capping option was most protective of human health 

and the environment. Based on comments received from the public about the EE/CA, a 

comprehensive containment system with silt curtains will be constructed to prevent the 

migration of solid particles during dredging, and additional monitoring will be conducted. 

EPA is most concerned about addressing the “tar body,” visible tar contamination in river 

sediments that contain polycyclic aromatic hydrocarbons (PAHs), toluene, benzene, and 

other constituents. Addressing the tar body will help protect the Willamette River 

ecosystem, which includes 5 salmonid species listed as threatened pursuant to the 

Endangered Species Act; several fish, birds, amphibians, and wetland plant species 

considered endangered or sensitive by the Oregon Department of Fish and Wildlife; and 

species listed as species of concern by the U.S. Fish and Wildlife Service. 

Portland Gas and Coke Company (GASCO), now NW Natural, operated an oil 

gasification plant on the site from 1913 to 1956. Until 1941, wastewater effluent and tar 

stills were discharged into a stream that drains into the Willamette River. The site was 

added to the National Priorities List on December 1, 2000. 

For additional information, contact Sean Sheldrake, Remedial Project Manager, 

sheldrake.sean@epa.gov. 

EPA Makes McCoy Field Documents Available 

Online 

EPA has posted documents regarding McCoy Field in New Bedford, Massachusetts in 

response to public comments requesting improved access. This information was 

previously available in paper copy at the New Bedford Free Public Library. The newly 

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posted information includes documentation of EPA’s recent review and approval of New 

Bedford’s plan to address PCB contamination at McCoy Field. Specifically, links are 

provided to correspondence containing the city’s responses to EPA review comments as 

well as EPA’s draft approval letter. The McCoy Field documents—including the draft 

approval, administrative record, a fact sheet about the proposed Keith Middle School, and 

a presentation—are available online at: www.epa.gov/ne/mccoyfield. In addition to 

posting these documents online, EPA extended the deadline for public comments from 

July 15, 2005 to July 29, 2005. 

In June, EPA made a preliminary decision to approve the city’s plan to cleanup the PCB 

contamination. This decision centered on the city’s proposed measures to remove 

contaminated materials from the site and install clean soil covers, solid barriers and a 

passive vapor ventilation system. The city’s plans also include monitoring for threats to 

human health at the site; the city hopes to build a new middle school on the site after 

cleanup is completed. EPA’s actions in this matter are pursuant to its authority to 

regulate PCBs and PCB contamination under the Toxic Substances Control Act (TSCA). 

For additional information, contact David Deegan, EPA Region 1, 

deegan.dave@epa.gov. 

Union Pacific Required to Prevent Oil Spills 

EPA has issued an order requiring Union Pacific Railroad to address oil contamination 

from its train service and refueling area on the Suisun Bay in Martinez, California. EPA 

is requiring the company to prepare a plan and schedule to address the potential for future 

discharges from its tracks. In addition, the company must determine how much oil has 

already been released into Suisun Bay, which is part of San Francisco Bay. 

EPA’s order comes after emergency responders were called to investigate and address oil 

contamination from the Ozol Service Track Area, which is located adjacent to the water. 

It appears that oil from contaminated pads and soil discharged to the bay through a storm 

water drain. Discharges such as these can harm the delicate marine environment and 

threaten marine plants and animals. Although Union Pacific has taken some measures to 

correct the problem, it could face penalties of $37,500 for each day it does not respond to 

EPA’s order. 

For additional information, contact Dan Suter, EPA Region 9, suter.daniel@epa.gov. 

In The Courts 

Settlement Approved in Grace Fraudulent 

Transfer Case 

On June 27, 2005, the United States Bankruptcy Court for the District of Delaware 

approved a settlement in the W.R. Grace fraudulent transfer case. The suit was brought 

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against Sealed Air Corporation and Cryovac, Inc. (the makers of “bubble wrap”) by two 

creditors' committees overseeing the claims against W.R. Grace for asbestos-related 

damages; the federal government joined the suit as a party in June 2002. The government 

and committees alleged that W.R. Grace transferred funds to Sealed Air to hide assets in 

anticipation of coming asbestos claims. Under the terms of the agreement, Sealed Air 

will pay the Grace bankruptcy estate $512.5 million and give the estate 9 million shares 

of Sealed Air stock. The settlement is valued at close to $1 billion. In 1998, Sealed Air 

acquired W.R. Grace’s Cryovac division in a merger worth several billion dollars. The 

settlement resolves Sealed Air’s liability for all existing and future asbestos-related 

claims. 

EPA is among the creditors seeking funds from the W.R. Grace bankruptcy estate. W.R. 

Grace is responsible for the widespread asbestos contamination at Libby Mine in 

Montana. In October 2003, W.R. Grace was ordered to reimburse EPA $54 million in 

response costs at the site. The company filed for Chapter 11 bankruptcy in April 2001 

and is currently working to come out of bankruptcy through reorganization. 

For additional information, contact Andrea Madigan, EPA Region 8, 

madigan.andrea@epa.gov. 

DuPont and EPA Agree to Settlement for Necco 

Park and Newport 

In two settlements reached on June 20, 2005, DuPont has agreed to reimburse EPA $2.7 

million in past costs for the Necco Park site in Niagara Falls, New York and EPA and 

DuPont resolved a claim by EPA and a cross-claim by DuPont concerning litigation costs 

with respect to the Newport site in Newport, Delaware. DuPont will also drop its 

pending appeal of a district court judgment (341 F.Supp.2d 215 (W.D.N.Y.)) that 

awarded EPA past costs for Necco Park. In the appeal, DuPont argued that it should not 

have to reimburse the Department of Justice for enforcement costs, costs DuPont 

characterized as “attorneys fees” not allowable under CERCLA. This settlement 

completes the litigation for Necco Park. The Newport litigation may still be impacted by 

the Third Circuit Court of Appeals’ reconsideration of its ruling in U.S. v. Rohm & Haas 

(2.F.3d 1265), the 1993 ruling in which the Third Circuit determined that the government 

was not entitled to recover all oversight costs. Hearings to review that ruling are 

scheduled for September 8, 2005. 

Necco Park served as an industrial waste disposal site from the mid-1930s to 1977 when 

groundwater contamination was discovered. During that period, approximately 93,000 

tons of waste—including fly ash, floor sweepings, sodium sludge waste salts and 

chlorinolysis wastes—from manufacturing at DuPont’s Niagara Plant were disposed at 

the site. The disposal of these wastes resulted in volatile organic compounds and semivolatile organic compound groundwater contamination. DuPont is completing the 

recommended site remedy pursuant to a 1998 Administrative Order under EPA oversight. 

DuPont developed a design plan for upgrading the clay landfill cap placed in the 1970s 

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and for installing a hydraulic groundwater containment system, and EPA has approved 

the designs for both. The groundwater containment system has been constructed and is 

now operational, and the landfill cap will be placed in 2006. 

The Newport Landfill site in New Castle, Delaware included a pigment-manufacturing 

facility and two landfills for industrial waste. DuPont purchased the plant in 1929 and 

disposed of wastes from the production of Lithopone, organic and inorganic pigments, 

and chromium dioxide in the landfills. Heavy metals and chlorinated solvents were 

detected in groundwater. DuPont completed site cleanup—including sediment dredging, 

capping the landfills, installing groundwater treatment systems, and wetland/river bank 

restoration—in September 2002 under EPA oversight. 

For additional information, contact George Shanahan, EPA Region 2, (212) 637-3171, 

or Mary Rugala, EPA Region 3, (215) 814-2686. 

Tidbits 

Update: New Bedford Harbor Cleanup 

In an innovative approach, EPA is taking clean sand from the navigational dredging of 

New Bedford Harbor in Massachusetts and using it as a “clean cap” over PCBcontaminated sediments in the Cornell-Dubilier area of the harbor. The pilot capping 

study is saving money because clean sand from dredging that would otherwise be 

disposed of at sea is being used for a beneficial purpose. This approach is also 

accelerating the cleanup of the harbor; the area being capped has lower levels of PCBs 

than the upper harbor and would likely be addressed after areas with higher 

concentrations. EPA will conduct yearly monitoring of the cap to ensure it effectively 

prevents contaminants from migrating. 

The PCB contamination of the harbor, which resulted from the disposal practices of two 

capacitor manufacturing plants, is extensive and impacts recreational and commercial 

fishing. EPA has already addressed 30 acres of PCB-contaminated sediments, and 

another 240 acres will be handled at the newly opened sludge dewatering facility. 

Two articles about the New Bedford Harbor cleanup—one about the state Portfields grant 

received to fund the navigational dredging and another about the opening of the sludge 

dewatering facility—appeared in the Fall 2004 issue of CleanupNews, available online at: 

http://www.epa.gov/Compliance/resources/newsletters/cleanup/cleanup18.pdf. 

For additional information, contact Dave Dickerson, EPA Region 1, (617) 918-1329 or 

dickerson.dave@epa.gov. 

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Calendar 

August 23-26, 2005 

Waste & Recycle 2005 Conference & Exhibition 

http://www.environmentaljobs.com.au/events_db/view.php?job_ID=84 

Fremantle, Western Australia 

September 18-23, 2005 

North American Hazardous Materials Management Association 2005 Conference 

http://www.nahmma.org/ 

Tacoma, WA 

September 28-30, 2005 

ICOPCE 2005 

http://www.ibc-asia.com/Chemical-Oil-Pollution/ICOPCEIntro.htm 

International Chemical & Oil Pollution Conference & Exhibition 

Shangri-La Hotel, Singapore 

October 3-7, 2005 

ConSoil 2005 

9th International FZK / TNO 

Conference on Soil-Water Systems 

http://www.consoil.de/ 

Bordeaux, France 

October 9-12, 2005 

8th Annual Florida Brownfields Conference and Exhibition 

http://www.floridabrownfields.org/ 

Jacksonville, FL 

November 2-4, 2005 

Brownfields 2005 

http://www.brownfields2005.org/en/index.aspx 

Denver, CO 

Glossary 

CERCLA Comprehensive Environmental Response, Compensation, and Liability 

Act 

EE/CA Engineering Evaluation and Cost Analysis 

EPA Environmental Protection Agency 

GASCO Portland Gas and Coke Company 

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IMPGs Interim Media Protection Goals 

OSRE Office of Site Remediation Enforcement 

PAHs Polycyclic aromatic hydrocarbons 

PCB Polychlorinated biphenyls 

TSCA Toxic Substances Control Act 

Subscription Information 

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

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

Heimerman, Kenneth Patterson, Neilima Senjalia, Suzanne Wells 

Christine Rueter, 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. 

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