Enforcement

Enforcement Annual Results FY 2012 Cleanup Enforcement Program Accomplishments

Each fiscal year, the Environmental Protection Agency (EPA) counts the total private party cleanup commitments of sites where cleanup activity should be performed and settlements have been successfully reached with the parties. EPA's cleanup enforcement program achieves prompt site cleanup and maximum liable party participation in performing and paying for cleanup in ways that promote environmental justice and fairness. The total dollar value of the commitment by private parties to cleanup Superfund sites is driven primarily by settlements and orders that require parties to either conduct or pay for the cleanup.

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, contain both cleanup and regulatory authority. RCRA's cleanup authority is the RCRA Corrective Action program, which addresses cleanup activities at RCRA regulated facilities.

EPA's Superfund enforcement program continues an "enforcement first" (PDF) approach and also ensures a fair, more effective, and more efficient Superfund program by maximizing private party participation in performing and paying for site cleanup.

Fiscal year 2012 activities and accomplishments for cleanup enforcement includes:

$829 million in Private Party Commitments to Cleanup Sites and Recover Costs

In FY 2012, EPA obtained $657 million in commitments from responsible parties for studying and cleaning up Superfund sites. Additionally, responsible parties committed to reimburse EPA $172 million for money it has spent cleaning up Superfund sites.

Since 1980, EPA has attained over $37 billion in commitments from responsible parties. Of this amount, over $31.0 billion has been committed to study and clean up of Superfund sites, and approximately $6.0 billion represents reimbursements to EPA for money it spent cleaning up Superfund sites.

In any given year, responsible party cleanup commitments are a function of which National Priorities List (NPL) sites are at the stage in the pipeline where remedial actions should be preformed and settlements can be successfully reached with the parties. Likewise, EPA ensures that where liable, viable responsible parties exist, the parties enter into an agreement to reimburse the Agency for past costs spent at their site. Cost recovery settlements vary each year due to the size and type of individual cost recovery cases.

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GPRA Target for Volume of Contaminated Media Addressed (VCMA) Exceeded

For FY 2012, EPA is reporting for the first time a combined total for contaminated soil and groundwater media cleanup commitments obtained based on concluded CERCLA and RCRA Corrective Action enforcement actions. EPA exceeded the 300 million cubic yards target under the Government Performance and Results Act (GPRA). The FY 2012 accomplishment is 416.7 million cubic yards. Four large cases totaling 314.6 million cubic yards accounted for 75% of the national total, as follows:

In addition to soil and groundwater media included in the VCMA GPRA measure, EPA achieved significant air VCMA results in a cleanup addressing vapor intrusion at the Middlefield-Ellis-Whisman (MEW) Study Area Superfund Site in Mountain View, Calif. In March 2012, the district court approved and entered a consent decree amendment for the MEW vapor intrusion remedy, which is one of the largest Superfund vapor intrusion cleanups to date. Under this settlement and a related amended unilateral administrative order, Intel Corporation, Raytheon Company, and several other parties will address human health risks caused by vapor intrusion of trichloroethene (TCE) into approximately 60 commercial and residential buildings. The vapor intrusion remedy supplements previous soil and groundwater cleanup work at the MEW site. The parties will also ensure future buildings in the MEW vapor intrusion study area are designed to prevent vapor intrusion of contamination above site cleanup levels.

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Assessment of the National Enforcement Strategy for RCRA Corrective Action

On April 27, 2010, EPA issued the National Enforcement Strategy for RCRA Corrective Action (PDF) (NESCA) to promote and communicate nationally consistent enforcement and compliance assurance principles, practices, and tools to help EPA and the states achieve the 2020 Corrective Action Goal (2020 CA Goal). This goal is to construct cleanup remedies at 95% of the 3,747 facilities in the 2020 Corrective Action Universe of facilities (the 2020 CA Universe) by the year 2020.

After 18 months of implementation, EPA and its state partners assessed the contribution of NESCA in achieving progress toward the 2020 CA Goal. In September 2012, EPA issued an Assessment of NESCA (PDF) which found that NESCA has been helpful in moving facilities further along the cleanup pipeline toward remedy construction. Based on data reviewed, in fiscal years (FY) 2010 and 2011, Regions issued more enforcement orders than in any year since 1999. Regions and states indicated that there is generally more consideration of enforcement and compliance assurance tools to address contamination at RCRA corrective action facilities during work planning and other meetings.

During FY 2012, 20 new federal RCRA Corrective Action enforcement orders were issued, compared to 23 orders in FY 2011 and 20 in FY 2010. Also in FY 2012, two previously issued final orders were amended and over 55 million cubic yards of contaminated media, including soil and groundwater, is estimated to be addressed because of these new and amended enforcement actions.

The Corrective Action order that addressed the largest amount of contaminated media is associated with the Walter Coke, Inc. site in North Birmingham, Ala. Walter Coke is an industrial coke operation that produces foundry and furnace coke and coke by-products located in North Birmingham, Ala. It has been in operation since 1907 and comprises a 400 acre property. An administrative order issued September 17, 2012 includes a phased approach to implement remedies at approximately 50 acres across the property. More information on NESCA is available on the Agency’s RCRA Corrective Action: NESCA website.

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Federal Appeals Court Affirms District Court Ruling on Divisibility; Cleanup Continues at Fox River Site in Wis.

On August 3, 2012, the Seventh Circuit Court of Appeals became the first federal circuit court to analyze a defendant’s divisibility defense since the Supreme Court’s decision in Burlington Northern & Santa Fe Railway Co. v. United States, 129 S. Ct. 1870 (2009) (“Burlington Northern”).

Burlington Northern addressed the imposition of joint and several liability on parties found liable under CERCLA. Some private practitioners predicted that Burlington Northern would make it easier for PRPs to succeed in proving divisibility as a defense to avoid CERCLA’s joint and several liability.

In United States v. NCR Corp., 688 F.3d 833 (7th Cir. 2012), the Seventh Circuit’s decision requires NCR to finish scheduled cleanup work in the Fox River under a 2007 unilateral administrative order. The court found that NCR failed to prove that the environmental harm at issue was capable of apportionment because NCR’s contribution to the contamination at the site alone was sufficient to warrant clean up. Thus, the first federal circuit court to address divisibility since Burlington Northern reached a decision favorable to the United States.

NCR argued that the district court’s decision that was the subject of the appeal was at odds with Burlington Northern because the Supreme Court upheld a “rough apportionment calculation.” The Seventh Circuit disagreed. The Seventh Circuit distinguished the present case, noting that Burlington Northern failed to address sites with multiple parties that independently pollute at threshold levels. Whereas Burlington Northern involved one party that contributed to no more than 10% of the total site contamination, the 10% of the total amount of polychorinated byphenols (PCBs) that NCR contributed would require remediation regardless of the fact that it was merely a fraction of the total contamination.

In concluding that NCR’s pollution alone would have triggered cleanup, the Seventh Circuit described this case as an example of “multiple sufficient causes” of environmental harm. Had NCR been the only party to dump  PCBs into the river, the river would still have to be dredged because PCB levels contributed by NCR exceeded EPA’s max safety threshold. In other words, there was no linear correlation between the cost of cleanup and the level of PCBs in the river. Once the PCBs reached a threshold level, cleanup became necessary.

More information on the cleanup activity and legal challenges are available from the Lower Fox River and Green Bay Superfund Site website.

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