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Cleanup Enforcement Program FY 2013 Accomplishments
In fiscal year (FY) 2013, EPA continues to ensure that responsible parties perform and pay for the cleanup of our nation's most contaminated sites. In doing so, the Agency protects the interests of numerous communities and environmental justice areas.
To address the cleanup of contaminated sites, EPA's most often used and most powerful cleanup enforcement mechanism is the Comprehensive, Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). Superfund is a cleanup authority only and does not otherwise regulate a facility's operations. The Resource Conservation and Recovery Act (RCRA), including the Underground Storage Tank (UST) program, contains both cleanup and regulatory authorities. RCRA's cleanup authority is the RCRA Corrective Action program, which addresses cleanup activities at RCRA regulated facilities. More information is available from the Agency's cleanup enforcement section of the waste, chemical and cleanup enforcement website.
In FY 2013, EPA’s cleanup enforcement program:
- Secured more than $1 billion in responsible party commitments to pay for cleanups or reimburse the Agency for past cleanup costs.
- Exceeded its target goal for addressing the cleanup of contaminated soil and ground water in settlement agreements.
- Negotiated settlements that brought an end to lengthy and complex litigation for a site in California and shortened the time table for cleaning up a Massachusetts site.
- Issued revised guidance on the Agency’s treatment of tenants under Superfund’s Bona Fide Prospective Purchaser provision and model letters for lessees at renewable energy projects.
EPA Secures $1.5 Billion from Responsible Parties to Clean Up Superfund Sites and Reimburse EPA for Past Cleanup Costs
In FY 2013, EPA obtained more than $1.2 billion in commitments from responsible parties to clean up Superfund sites. This is the tenth highest cleanup commitment total since the Superfund program began.
Additionally, responsible parties will reimburse $292 million of EPA’s past costs from cleanup work at Superfund sites. This is the seventh highest cost recovery total ever for the Superfund program.
Since 1980, EPA has attained over $38.8 billion in commitments from responsible parties. Of this amount, more than $32 billion has been committed to investigate and clean up Superfund sites, and more than $6 billion represents reimbursements to EPA for its past costs.
EPA has a long-standing commitment to ensuring that responsible parties perform and/or pay for the cleanup of contaminated sites. Generally, EPA is most successful in ensuring that responsible parties perform remedial actions, the final and often most costly cleanup phase. At some sites, EPA finds it more appropriate to cost recover the Agency's costs of performing the cleanup. The size, number, and type of settlements vary each year due to the nature of the sites that are ripe for enforcement.
In FY 2013, EPA exceeded its targeted goal for the volume of contaminated media addressed (VCMA) that is reported under the Government Performance and Results Act (GPRA). The FY 2013 GPRA goal for cleaning up contaminated soil and ground water was 275 million cubic yards. Through settlement agreements under CERCLA and RCRA Corrective Action authorities, the Agency secured commitments to clean up over 751 million cubic yards of contaminated soil and ground water media, more than two-and-a-half times the targeted goal.
The 751 million total cubic yards involve the following:
- 65.6 million cubic yards of contaminated soil, which is enough to cover more than 12,000 football fields with three feet of dirt, and
- 685.6 million cubic yards of contaminated ground water, which is enough to fill approximately 210,000 Olympic-sized swimming pools.
The vast majority of the VCMA number for FY 2013 is from three settlement agreements associated with two sites:
- Agreements with Goodrich Corporation (400 million cubic yards of ground water) and Emhart Industries (250 million cubic yards of ground water) at the Rockets, Fireworks, and Flares Superfund Site in Rialto, Calif. (Region 9); and
- Agreement with FMC Corporation (45.7 million cubic yards of soil) at the Eastern Michaud Flats Contamination Superfund Site in Pocatello, Idaho (Region 10).
The agreements at these two sites constitute 695.8 million cubic yards of soil and ground water, which is 93% of the national total.
Negotiated Settlements End Lengthy and Complex Litigation for California Site and Speeds up Cleanup Time Table for Massachusetts Site.
Rockets, Fireworks, and Flares Superfund Site Settlement, Calif.
During FY 2013, EPA and the Department of Justice negotiated several settlement agreements associated with the Rockets, Fireworks, and Flares Superfund Site [formerly known as the B.F. Goodrich Superfund Site] in northern Rialto, California. The 2013 settlement agreements ended years of litigation and will result in the cleanup of ground water contamination at the site to the benefit of neighboring communities.
The cleanup agreements will ensure the remediation of perchlorate and trichloroethylene contamination at the site. The cleanup work includes increased monitoring and surveying the contamination, as well as active measures to remove the contaminants from the area. The agreements also require the installation of ground water monitoring wells.
The following is a summary of the settlement agreements associated with the Rockets, Fireworks, and Flares site that were approved in FY 2013, resulting in work commitments and cost recovery of over $100 million:
- The Goodrich Corporation will pay at least the first $21.5 million for the cost of the cleanup work and be responsible for designing, building, and operating, under EPA’s oversight, any facility selected by the Agency in its cleanup plan to address soil and ground water contamination in central and south Rialto, Calif.
- KTI, Inc. will pay $2.8 million toward EPA’s cleanup costs. KTI’s agreement also allows EPA and other parties performing work on EPA’s behalf to access the site for any cleanup work.
- Emhart Industries, the Department of Defense, and the other settling defendants, will spend $43 million over the next 30 years to clean up contaminated ground water at the site. The cities of Rialto, Colton, and the county of San Bernardino, Calif. will receive $8 million from that amount.
- Pyro Spectaculars Inc (PSI) and the other settling defendants will pay $4.3 million to the EPA and $1.3 million to the cities of Rialto and Colton and San Bernardino County.
More information on the settlements associated with this site is available from the B.F. Goodrich case summary web page
New Bedford Harbor Superfund Site Settlement, Mass.
At the New Bedford Harbor Superfund Site, the United States, the State of Massachusetts, and AVX Corporation (AVX) reached an agreement where AVX will pay $366.25 million, plus interest, for cleanup of the site. EPA will use the funds to perform the cleanup of the Harbor, which contains sediment highly contaminated with polychlorinated biphenyls and heavy metals. This cash-out settlement will speed up the cleanup of New Bedford Harbor when compared with the previous funding levels. The cleanup may take as little as eight years to complete rather than the 40 years previously estimated. It also means that the primary party responsible for the contamination will be financing the rest of the Superfund cleanup rather than taxpayers.
Following court approval of the consent decree, AVX made the first of three payments in the amount of $133,350,000 million, plus interest. AVX’s second payment is due one year after the date of entry of the consent decree and the third payment will be due two years after the date of entry. Under the terms of the settlement, AVX has the option of pre-paying any amounts before the due date.
The approval of the settlement completes the enforcement action and settlement negotiations with AVX, and subject to a few reservations of rights, AVX has resolved its liability for the New Bedford Harbor Superfund Site with the federal and state governments. More information on the settlement is available from the AVX settlement case summary web page.
Agency Issues Revised Guidance on the Treatment of Tenants Under Superfund’s BFPP Provision and Model Comfort/Status Letters for Lessees at Renewable Energy Projects
Section 107(r) of CERCLA provides liability protection for certain owners or operators of contaminated or formerly contaminated properties who are referred to as bona fide prospective purchasers (BFPPs). In 2009, the Agency issued enforcement guidance specific to the BFPP provision and tenants.
On December 5, 2012, the Agency issued the “Revised Enforcement Guidance Regarding the Treatment of Tenants Under the CERCLA Bona Fide Prospective Purchaser Provision.” The revised guidance discusses the potential applicability of the BFPP provision to tenants and how the EPA intends to exercise its enforcement discretion on a site-specific basis to treat certain tenants as BFPPs. Under the revised guidance, certain lessees, who were not previously covered by Agency guidance because the owner of the property was not a BFPP, may now be treated as a BFPP.
In conjunction with the revised guidance, the Agency also developed three new model comfort/status letters for lessees involved in renewable energy development on contaminated or formerly contaminated property. The revised guidance and model comfort/status letters were developed, in part, to respond to issues raised through EPA’s RE-Powering America’s Land initiative for siting renewable energy on current and formerly contaminated lands, landfills, and mine sites.
More information is available from the Agency’s Guidance on Treatment of Tenants under CERCLA’s BFPP Provision and Model Documents web page.