FY2004 Enforcement, Compliance and Cleanup 

Results Announced 

EPA met or exceeded federal targets in enforcement, Superfund cleanups, and 

underground storage tank cleanups, according to fiscal year 2004 data released in 

November. At the end of the fiscal year, Sept. 30, EPA compiles program data on 

enforcement, compliance and cleanup activities and releases it to the public as a measure 

of Agency achievements in protecting human health and the environment. Included in 

this year’s cleanup figures were an estimated 3.4 million cubic yards of contaminated soil 

and sediment and 9.5 million cubic yards of groundwater that will be remedied. 

Office of Enforcement Compliance and Assurance 

OECA reported that a billion pounds of pollution will be reduced as a result of 

enforcement actions taken in 2004, a dramatic 67 percent increase over the previous year 

and the second highest annual tally. In addition, there were increases in the dollar 

amount of injunctive relief, which is the value of compliance actions required by the 

settlement, the number of supplemental environmental projects (SEPs) settlers agreed to 

complete, and the number of inspections EPA conducted. Violators have agreed to pay a 

record $4.8 billion in injunctive relief, a 66 percent increase over the previous year. The 

number of SEPs—environmentally-beneficial projects a settler agrees to complete that 

go beyond what is required of the settlement—increased from 150 in 2003 to 213 in 

2004, a 42 percent increase. And the number of inspections rose 11 percent to 21,000 

from the previous year’s 18,880. 

Additional information about OECA’s FY2004 accomplishments, including the 

“numbers at a glance” and highlights of successful civil and criminal cases, including a 

$60 million PCB cleanup at the Fox River Superfund Site in Wisconsin and a $40 million 

groundwater cleanup in the San Gabriel Valley in California, are available online at: 

http://www.epa.gov/compliance/resources/reports/endofyear/eoy2004/2004highlights.ht 

ml. 

Office of Solid Waste and Emergency Response 

In OSWER, the Superfund program reported that construction was completed at 40 sites. 

To date, construction has been completed at 926 sites on the National Priorities List 

(NPL). The Superfund program also reported that in FY 2004, 11 new sites had been 

added to the NPL and 26 had been proposed for listing. A summary of Superfund’s 2004 

accomplishments is available at: 

http://www.epa.gov/superfund/action/process/numbers04.htm. The Office of 

Underground Storage Tanks reported a significant drop in the number of new releases, 

down to 7,850 from 12,000 last year. Also, the number of sites awaiting remedial action 

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dropped by 5 percent from 2003. OUST’s FY2004 accomplishments are available at: 

http://www.epa.gov/oust/cat/camarchv.htm. 

For additional information, contact Pat Reilly of OECA, reilly.pat@epa.gov; Jennifer 

Browne of OSRTI, browne.jennifer@epa.gov; or Cheryl Johnson of OUST, 

johnson.cheryl@epa.gov. 

EPA Administrator Leavitt Addresses 

Brownfields Conference 

“The President's vision is very clear. The President wants to see eyesores turned into 

retail stores. He wants to see rail lines turn into trail lines. He wants to see Brownfields 

become ballfields.” 

-- Administrator Mike Leavitt 

On September 20, 2004, Administrator Leavitt urged Brownfields conference participants 

to speed the pace of Brownfields projects and to work together to do so. “All successful 

Brownfields projects are collaborations,” Leavitt noted, as he encouraged everyone 

involved in the Brownfields redevelopment process—including developers, insurers, and 

federal and state agencies—to consider Brownfields projects as “problem solving 

networks.” He added that EPA should be examining why some Brownfields efforts 

succeed and some fail and applying successful strategies to new redevelopment projects. 

Leavitt followed by outlining seven questions that need to be asked of any Brownfields 

project to ensure that there is adequate collaboration to guarantee success. Leavitt 

proposed asking if the key collaboration players “have a shared problem and shared 

pain,” there is a leader committed to the effort, and the partners have a “clear and defined 

purpose.” 

This year’s conference in St. Louis attracted over 4,000 participants. As with past 

conferences, there was a “Marketplace of Ideas,” and the Phoenix Awards, which honor 

excellence in brownfields redevelopment, were announced. Some conference attendees 

chose to tour “green” redevelopment sites, including the Laclede Power Building, a 

former St. Louis power plant that is being redeveloped as a trailhead to the Mississippi 

Riverfront Bike Trail. 

Brownfields 2005 is scheduled for Nov. 2-4, 2005 in Denver, Colorado. As the 

conference approaches, conference details including the call for ideas and registration 

materials will be available at: http://www.brownfields2005.org. 

For additional information, contact Tony Raia, OBCR, (202) 566-2758. 

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Dunne Speaks on Future of Superfund 

Next year, EPA will celebrate the 25th anniversary of the “Superfund law”—the 

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). 

In anticipation of this anniversary, Thomas Dunne, Acting Assistant Administrator of 

OSWER, spoke at the University of Virginia about the history of the program, current 

challenges, and how to address these realities over the next quarter century. 

The new realities of the Superfund program, which Dunne referred to as the “Superfund 

facts of life,” include the lower purchasing power of the dollar, costly and more complex 

site cleanups, and the expansion of the emergency cleanup program’s responsibilities. 

The first reality is that Superfund dollars buy less cleanup than it did over the past 10 or 

20 years. The amount of money appropriated to Congress has remained about the same 

over the past 24 years, however, the purchasing power of the dollar has decreased from 

20 years ago through inflation. The second reality is that this lower dollar value must be 

used to clean up more complex and expensive Superfund sites. Dunne noted the example 

of Bunker Hill, a former mining and smelting site in Idaho where EPA has already spent 

$300 million of what will likely be a $700 million, 30-year cleanup. Until now, 44 

“megasites”—sites requiring $50 million or more to cleanup—have been completed, and 

90 megasites, not including federal facilities, are currently in the pipeline waiting to be 

completed. Another “fact of life” is the addition of biological and chemical antiterrorism responsibilities for EPA’s emergency response team in the post-9/11 era. 

Dunne also expressed concerns about emerging trends that may have long-term impacts 

on the program, including new laws reducing responsible party liability and unanticipated 

economic factors that leave businesses unable to pay for expensive cleanups. Also, 

dwindling state and local government funds for covering traditional cleanups may place a 

greater burden on the Superfund. Dunne posed for discussion that possible ways to 

tackle these challenges include tapping into the economic post-cleanup success of parties 

that benefit from a cleanup, creating a megasite cleanup fund that would be managed 

separately from the regular Trust fund, and adding new sites to the Superfund list only 

after all current sites are completed. 

Dunne’s speech is available at: 

http://www.epa.gov/oswer/docs/2004_1202_dunne_sf_speech.pdf. 

New Initiative Encourages Responsible 

Redevelopment 

EPA has made redevelopment of former contaminated sites a major priority. 

Redevelopment brings abandoned or underused properties back into use thereby 

preserving undeveloped land and revitalizing communities. But for all its virtues, 

redevelopment is not without cost. Building new structures requires the use of raw 

materials, and businesses and residences consume energy and resources and generate 

waste. According to Department of Energy estimates, the 76 million residential and 5 

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million commercial buildings in the US consume 37 percent of all US energy and 40 

percent of all raw materials. 

A new initiative called Environmentally Responsible Redevelopment and Reuse (ER3) 

seeks to “green” the redevelopment process by encouraging developers to adopt more 

environmentally-friendly building practices and materials. Through ER3, EPA will use 

existing tools, including comfort letters, prospective purchaser agreements, and green 

building supplemental environmental projects (SEPs), to give developers incentives. For 

example, a settler could agree to a green building SEP—a project which EPA will take 

into account in setting appropriate penalties—that aids a nearby redevelopment effort. 

The Office of Enforcement and Compliance Assurance (OECA) launched this initiative 

in September with the Office of Site Remediation Enforcement taking the lead. In the 

near term, OECA is partnering with other EPA offices and the Regions to develop a 

catalogue of incentives. In the future, the program could grow to include other federal 

agencies, including the US Army Corps of Engineers, the Department of Housing and 

Urban Development, and the Department of Energy. 

For additional information, contact K.C. Schefski, OSRE, (202) 564-8213, 

schefski.kenneth@epa.gov, or Phil Page, OSRE, (202) 564-4211, page.phil@epa.gov. 

Vieques Proposed to NPL 

The Atlantic Fleet Weapons Training Area (AFWTA) on the Island of Vieques and 

Culebra Island Archipelago, Puerto Rico was proposed for listing on the Superfund 

National Priorities List on August 13, 2004. The AFWTA consists of the eastern and 

western portions of the Island of Vieques and areas of the Culebra Archipelago and 

surrounding water bodies. The Governor of Puerto Rico has identified this area as the 

Commonwealth’s top priority facility for Superfund Response. 

For over 100 years, the AFWTA has been used by the United States Navy as a training 

facility. The eastern portion of the island was used for military training exercises, and on 

the western portion, the Navy operated the Naval Ammunitions Support Detachment 

(NASD), which cover approximately 8,000 acres. Many areas of the eastern portion of 

the island, which were transferred to the U.S. Department of Interior in May 2003, are 

designated for the NPL. There are at least eight identified operable units at this site 

where investigation and remediation are not completed, however, the OUs have not been 

selected as No Further Action pursuant to CERCLA. Contamination of water bodies 

surrounding both sites includes unexploded ordnance and other hazardous substances. 

Between 1902 and 1975, the Navy conducted a weapons training operation on portions of 

the Culebra Island Archipelago, which consists of Culebra Island and surrounding islands 

and keys. The Army is now addressing these areas through the US Army Corps of 

Engineers’ Formerly Utilized Defense Sites program. 

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Key operations on both islands included aircraft strafing, bombing and gunnery ranges, 

and amphibious landings. Large amounts of parts and unexploded ordnance have been 

discovered at the range areas of the islands, and low levels of contamination have been 

identified in the Vieques groundwater. Approximately 9,300 residents live on the island 

of Vieques while approximately 3,000 live on Culebra. Residents obtain their drinking 

water from Puerto Rico, only 8 miles away. Much of the facility is now being designated 

a wilderness area to protect the habitat of 25 federal and Puerto Rican endangered 

species. 

A 60-day public comment period on the proposed listing ended October 12. EPA is 

currently evaluating all of the comments that were received and will consider their impact 

on this site before a final listing decision is reached. 

For additional information, contact Terry Jeng, OSRTI, jeng.terry@epa.gov. 

Consent Decree Accomplishes Cleanup and 

Facilitates Redevelopment of Lake Michigan 

Waterfront 

By Cate Tierney, Office of Site Remediation Enforcement 

Soil cleanup at the Waukegan Manufactured Gas and Coke Plant (WCP) Site along Lake 

Michigan in Waukegan, Illinois, is underway pursuant to a Consent Decree entered by 

the Northern District of Illinois on October 13, 2004. Under the Decree, North Shore Gas 

and General Motors will perform soils and groundwater remedial action at an anticipated 

cost of $27,000,000. The City of Waukegan will assume soil operation and maintenance 

responsibilities upon EPA’s determination that the soil remedial action has been 

satisfactorily completed. The City may redevelop the WCP site after the soil remedial 

action is completed. 

The Record of Decision (ROD) remedy is based on a commercial/industrial future use 

assumption. However, in an innovative attempt to facilitate redevelopment at the Site, 

the Decree provides that the City may refrain from placing the industrial/commercial reuse cap called for by the ROD for a finite time. During that time, the City may try to find 

a developer that will pay for extra soils work at the Site, so that it may be redeveloped for 

residential use. Additional cleanup or protective measures necessary to support 

residential use will be subject to EPA review and approval. If the City is unable to find a 

developer within the specified time, the Decree requires the City to place the 

industrial/commercial reuse cap on the Site. 

The Consent Decree obligates the Owner Settling Defendants, the City and Larsen 

Marine Service, Inc., to provide the access agreements and institutional controls required 

to implement the selected remedy. The Decree requires the Buyout Settling Defendant, 

Elgin Joliet & Eastern Railway Co., to pay GM and North Shore 10% of the cost of the 

remedial action, pursuant to a separate agreement among the Settling Defendants. 

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The WCP site is an operable unit of the Outboard Marine Corporation Superfund site, 

and was discovered during the Waukegan Harbor dredging remedial action. In 1990 EPA 

and the North Shore Gas Company entered into an Administrative Order on Consent for 

completion of the RI/FS at the WCP site. Analysis of the RI data showed that past wood 

treating and manufactured gas and coke plant activities had contaminated the soil and 

groundwater at the site. The soil contaminants of concern include PAHs, phenols, and 

volatile aromatics. The groundwater contaminants of concern are arsenic, phenol, 

benzene, and ammonia derived from the manufactured gas and coke plant processes. 

The contaminated ground water discharges to Waukegan Harbor to the west and Lake 

Michigan to the east. The discharge to Lake Michigan has resulted in exceedences of 

Illinois Open Lake Surface Water Quality Standards. 

For additional information, contact Susan Tennenbaum, Office of Regional Counsel 

(312-886-5825); Kevin Adler, Superfund Division (312-886-7078); or Cate Tierney, 

OECA (202-564-4254). 

In The Courts 

DuPont Ordered to Pay $1.8 Million for Necco 

Park 

The Western District of New York issued a decision in United States v. DuPont, a 

CERCLA Section 107 cost recovery case concerning the Necco Park hazardous waste 

landfill. In response to the United States’ claim for cost recovery, DuPont challenged 

EPA’s issuance of an administrative order requiring DuPont to implement remedial 

design and remedial action for the site as being arbitrary and capricious. DuPont has 

owned Necco Park—a twenty-four acre landfill in an industrialized section of Niagara 

Falls, New York—since 1930. By 1977, the company had disposed of approximately 

93,000 tons of industrial waste at this site, resulting in hazardous waste contamination. 

In this case, the court rejected DuPont’s contention that EPA’s use of RCRA response 

authority at the site was inconsistent with the NCP because the NCP does not 

contemplate the use of response authority other than CERCLA. The court held that 

although the particular response action selected by EPA may have been “unavailable 

under CERCLA does not mean it was inconsistent with the NCP.” Specifically, the 

response action was not arbitrary or capricious because EPA determined “that the release 

or threatened release might pose a danger to human health or the environment.” The 

court also rejected DuPont’s assertion that the U.S. cannot recover Department of Justice 

(DOJ) enforcement costs which included both direct and indirect costs. The Court held 

that the “distinction between the recoverability of litigation and non-litigation costs” 

detailed in the Key Tronic case (Key Tronic Corp. v. United States, 511 U.S. 809, 113 S. 

Ct. 1960) does not apply to claims for enforcement costs brought by the federal 

government. In Key Tronic, the court held that private party expenses incurred solely in 

preparation for litigation cannot be recovered as response costs unless it significantly 

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benefited the entire cleanup effort. Thus, DOJ’s enforcement costs incurred in connection 

with the Necco litigation are recoverable. 

DuPont’s challenges to the validity of the issued unilateral administrative order (UAO) 

were also denied. Specifically, the court held that DuPont failed to demonstrate that 

EPA’s decision to issue the UAO was arbitrary and capricious. The court cited the past 

use of groundwater in the areas for domestic purposes and the classification by New York 

State of the aquifer as a potential drinking water source as a basis for the support of its 

holding. Specifically, EPA determined that Necco Park was “a continuing source of 

contamination to the surrounding groundwater, that the contamination posed a significant 

level of risk, and that the groundwater might be used as a source of drinking water.” With 

these facts, it was determined that Necco Park “may present an imminent and substantial 

endangerment to human health.” 

The court awarded $1.8 million in past EPA and DOJ response costs, declaratory 

judgment for all future response costs not inconsistent with the NCP, and prejudgment 

interest on all costs. DuPont has appealed the Court’s decision to the Second Circuit. 

For additional information, contact George Shanahan, EPA Region 2, 

shanahan.george@epa.gov. 

Tidbits 

EPA Issues Model Application/Information 

Request for CERCLA Service Station Dealer 

Exemption 

by Susan Boushell, Office of Site Remediation Enforcement 

In the November 15, 2004 Federal Register, EPA announced the availability of the 

"Model Application/Information Request for CERCLA Service Station Dealer 

Exemption” (69 FR 65596). This model will be another valuable tool in the 

implementation of the Service Station Dealer Exemption (SSDE) under section 114(c) of 

the Comprehensive Environmental Response, Compensation and Liability Act 

(CERCLA). 

Under CERCLA Section 114(c), certain service station dealers may be exempt from 

“generator” or “transporter” liability for a release or a threatened release of recycled oil. 

A party may be eligible if it: (1) is a “service station dealer”; (2) accepts “do-ityourselfer” used oil; (3) does not mix hazardous substances with used oil generated or 

collected by the service station dealer; (4) complies with EPA’s RCRA used oil 

management standards in 40 C.F.R. Part 279; and (5) transported or sent used oil to a 

Superfund site after March 8, 1993. The SSDE is intended, in part, to encourage service 

station dealers to accept “do-it-yourselfer” used oil for recycling. 

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Under CERCLA, EPA typically issues general information requests to parties at a 

Superfund site to help decide which parties it should or should not treat as responsible 

parties. To expedite EPA’s review of a service station dealer’s status, EPA developed a 

model application/information request directed at service station dealers. The model 

generally will be used for any party EPA has reason to believe may be eligible for the 

SSDE. EPA finalized the model after providing two opportunities for public comment 

and a public meeting. 

The model is available at: 

http://www.epa.gov/compliance/resources/policies/cleanup/superfund/ssde-modappinfo.pdf. Additional information about the SSDE is available online at: 

http://www.epa.gov/compliance/cleanup/superfund/find/liability.html#dealers. 

For additional information, contact Susan Boushell, OSRE, (202) 564-2173 or 

boushell.susan@epa.gov. 

OSRE Releases Corrective Action Financial 

Assurance Tools 

In September 2003, OSRE and OSW jointly transmitted the “Interim Guidance on 

Financial Responsibility for Facilities Subject to RCRA Corrective Action.” That 

guidance recommended a flexible, facility-specific approach to requiring financial 

assurance for corrective action, where appropriate, and encouraged regulators to require 

financial assurance earlier in the correction action process such as for the RCRA Facility 

investigation (RFI) or for significant interim measures. 

On November 1, 2004, OSRE released three documents intended to assist Regional and 

state offices in evaluating the appropriate level of financial assurance that may be 

required for an RFI or interim measure. 

Average Cost of Remedial Investigation Derived from Fund-lead Superfund Costs: This 

document provides information on completed fund-lead actions at 28 different types of 

sites. Because the Superfund and RCRA programs have similar investigation and 

remediation processes, Superfund RI costs can be used as a proxy for RFI costs and serve 

as a general guideline for cost estimating efforts. Users of this document can determine 

the “site type category” for a facility and then locate an estimate in 2004 dollars for 

assessing the appropriate amount of financial assurance. 

Interim Measures Cost Compendium: This document provides cost estimating 

information for 12 different types of interim measures. Cost information was developed 

by using RACER cost estimating software, which was originally developed for the US 

Air Force. Each interim measure discussion provides cost estimating information for 

multiple scenarios to address contamination problems of varying sizes. Cost estimating 

information is provided in a tabular format as well as cost equation format. The cost 

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cleanupnewsII December 2004 

equations include both capital and annual operation and maintenance terms expressed in 

2004 dollars. 

Compendium of Related Guidance Documents: This document identifies Superfund and 

RCRA remediation guidance documents that address remediation cost estimating tools, 

remediation procedures and guidelines, and investigations and interim measures. A 

document summary is provided for each document along with a hypertext link to the 

document or information about ordering the document from NTIS. 

OSRE’s transmittal memorandum along with copies of these documents are available 

online at http://www.epa.gov/compliance/resources/publications/cleanup/rcra/avg-costinvestig-cmplt.pdf 

Calendar 

January 24-27, 2005 

Third International Conference on Remediation of Contaminated Sediments 

New Orleans, LA 

http://www.battelle.org/environment/er/conferences/sedimentscon/default.stm 

Glossary 

AFWTA Atlantic Fleet Weapons Training Area 

CERCLA Comprehensive Environmental Response, Compensation, and Liability 

Act 

DOJ Department of Justice 

EPA Environmental Protection Agency 

NASD Naval Ammunitions Support Detachment 

NCP National Contingency Plan 

NPL National Priorities List 

OECA Office of Enforcement Compliance and Assurance 

OSRE Office of Site Remediation Enforcement 

OSRTI Office of Superfund Remediation and Technology Innovation 

OSW Office of Solid Waste 

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OSWER Office of Solid Waste and Emergency Response 

OU Operable unit 

OUST Office of Underground Storage Tank 

PCB Polychlorinated biphenyls 

RCRA Resource Conservation and Recovery Act 

RFI RCRA facility investigation 

UAO Unilateral administrative order 

Subscription Information 

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

EPA Review Board: Diane Bartosh, Paul Connor, Sandra Connors, Karen Ellenberger, 

Elliott Gilberg, Jeff Heimerman, Kenneth Patterson, Neilima Senjalia, Suzanne Wells 

Christine Rueter, Anne Dowton, Jon Kallen, 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 18S - 10