Superfund Enforcement Highlights
EPA's Superfund 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 response and cost recovery commitments from private parties for fiscal year (FY) 2009 continue to exemplify a robust enforcement program.
Fiscal year 2009 activities and results include:
- Excellent year for private party response and cost recovery commitments
- Record recoveries for past and future cleanup costs from bankruptcy cases
- EPA obtains favorable ruling on constitutional challenge to its cleanup order authority
- Enforcing cleanup requirements at federal facilities
Fiscal year 2009 was an exceptional year for the Superfund enforcement program. Responsible parties committed to pay $1.99 billion to clean up Superfund sites. This total is the second highest since the inception of the program in 1980.
The Superfund enforcement program achieved $371 million in settlements with responsible parties to reimburse the government for money it has spent cleaning up Superfund sites. That is the highest cost recovery total in a fiscal year since the inception of the program.
A number of the settlements reached with parties in FY 2009 involved record setting amounts of money, including:
- $975.0 million for cleanup at the TVA Kingston Fossil Plant in Tennessee was the highest ever in terms of dollars achieved in a single settlement. The cleanup agreement requires TVA to clean up contamination caused by a catastrophic failure of a diked impoundment area at its plant which released 5.4 million cubic yards of coal ash waste into the Emory River and adjacent land. The agreement also requires TVA to reimburse EPA for overseeing TVA’s cleanup work.
- The ASARCO bankruptcy settlement was the largest bankruptcy settlement ever for Superfund. Settling claims in 13 states for 15 Superfund sites, the settlement provided a total of $507.5 million for future cleanup of Superfund sites.
- Of the $507.5 million plus interest, $359 million plus interest was a cash payment toward future cleanup costs at the Bunker Hill & Metallurgical Complex site in Idaho, the largest “cashout” amount ever.
- The cost recovery settlement for the Omaha Lead site in Nebraska (part of the ASARCO bankruptcy settlement) provided payment of $130.4 million plus interest for past costs incurred by the Agency, the largest cost recovery amount achieved for a single site ever.
- The settlement for $56.2 million spent at the Combe Fill South Landfill in New Jersey ranks in the “top ten settlements” for the history of the Superfund enforcement program in terms of past costs reimbursed.
As a result of the recent economic downturn and increase in the number of bankruptcy filings, EPA has increased its efforts to ensure that the Agency maximizes its recovery in bankruptcy to the extent permitted by law, to help cover the cost of cleaning up contaminated Superfund sites.
EPA vigorously pursues debtors in bankruptcy as part of its commitment to ensure that responsible parties, not taxpayers, pay for cleanup of hazardous waste and also reimburse the Agency for its past and future cleanup costs.
EPA's increased efforts have resulted in potential record recoveries for fiscal year 2009 for several multi-regional, multi-site bankruptcy cases. EPA's allowed claims total over $1 billion from the ASARCO and G-I Holdings bankruptcies alone. These funds will enable the Agency to achieve cleanup of contamination at numerous Superfund sites throughout the country.
- ASARCO: The United States Bankruptcy Court for the Southern District of Texas Corpus Christi Division approved five environmental settlement agreements resolving environmental claims in the ASARCO bankruptcy on June 5, 2009. The settlement agreements resolve EPA claims at more than 26 sites across seven EPA Regions and provides EPA with an allowed claim of almost $1 billion to address all environmental liability, including Superfund. [More Information]
- G-I Holdings: This settlement agreement, approved by the United States Bankruptcy Court for the District of New Jersey on September 24, 2009, provides EPA with an allowed claim in the amount of $300,000,000. The ultimate recovery will depend on the amount of assets in the debtor's estate to be distributed to creditors. EPA's claim involves eleven sites across five EPA Regions. In addition, EPA will receive a payment of $154,000 as reimbursement for EPA’s Superfund past response costs at the Vermont Asbestos Group (VAG) Site in Eden and Lowell, Vermont. G-I has also agreed to implement specific injunctive relief at the VAG Site worth approximately $7,750,000 that includes securing the site against recreational users who might be exposed to contamination on site. For EPA’s monetary claims at the non-VAG Sites, G-I will pay $102,146.
The U.S. District Court for the District of Columbia ruled in favor of EPA in a lawsuit in which General Electric alleged that EPA's pattern and practice of issuing Unilateral Administrative Orders under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA", commonly known as Superfund) violated due process. The Court said that GE did not show that EPA's administration of its order authority offends due process and that the Constitution does not require the remedy sought by GE. The company argued that in order to meet due process requirements the EPA should be required to provide a hearing before a neutral fact finder before it could issue an order and deprive parties of protected liberty and property interests. The Court concluded by saying that the type of relief sought by GE is a task best left to the Congress, rather than the courts. The suit spawned several "copycat" lawsuits in other circuits, all of which have also been resolved in EPA's favor.
The January 27, 2009 and other rulings assure that EPA will be able to continue to order parties to clean-up Superfund sites without instituting additional procedures which would slow down site clean-ups. [More information on Superfund unilateral orders.]
There are more than 170 federal facility cleanup sites on Superfund’s National Priority List (NPL). The Superfund law requires EPA and the federal agency that owns or operates these sites to enter into enforceable agreements governing the cleanup, each party's responsibilities, and EPA oversight. Agreements are in place at most sites and EPA continues to enter into agreements at the remaining sites.
In 2009, EPA succeeded in resolving a multi-year impasse with the Department of Defense (DOD) concerning overdue agreements at its NPL sites. DOD once again agreed to negotiate agreements based on models previously signed at other sites by EPA and DOD. In 2009 EPA and DOD signed agreements for the clean up of seven NPL sites:
- Hanscom Air Force Base (Massachusetts)
- McGuire Air Force Base (Maryland)
- Langley Air Force Base (Virginia)
- Whiting Field Naval Air Station (Florida)
- Naval Computer and Telecom Area Master Station Eastern Pacific (aka NCTAMS) (Hawaii)
- Middlesex Sampling Plant (New Jersey)
- Ft. George Meade (Maryland)
Even before final agreements were signed at these seven sites, some cleanup was conducted there. EPA estimates that the prior cleanup work addressed more than 9 million cubic yards of contaminated soil and water.
Five DOD NPL sites still lack legally-required enforceable agreements; however, EPA hopes to sign cleanup agreements with DOD for these sites in early 2010:
- Brandywine Defense Reutilization and Marketing Office (DRMO) (Maryland)
- Andrews Air Force Base (Maryland)
- Tyndall Air Force Base (Florida)
- Redstone Arsenal (Alabama)
- Tuscon International Airport Site (aka Air Force Plant #44) (Arizona)
In 2009 EPA took actions against federal facilities to enforcement cleanup requirements. After the catastrophic release of 5.4 million cubic yards of coal ash from a TVA plant in Tennessee, EPA put in place a cleanup agreement requiring TVA to cleanup the contamination.
EPA also responded when federal facilities were not complying with cleanup agreements. EPA required that the U.S. Department of Energy pay a $165,000 fine for shutting down toxic waste cleanup systems and failing to restart them at its Lawrence Livermore National Laboratory in Livermore, California. These systems cleaned up contaminated ground water and sampling showed that the shut down resulted in a loss of control of the contaminated ground water plume offsite. Migration of the plume offsite could have resulted in contamination of drinking water wells. Some systems at the site have already been restarted; the remaining systems needing to be restarted are subject to an agreed upon and enforceable schedule.
EPA fined the U.S. Navy $45,000 for its failure to comply with the Superfund’s National Contingency Plan during the Navy’s investigation of contamination at its Jackson Park Housing Complex site near Puget Sound in Washington State.
In 2009 federal facilities, under existing agreements with EPA, undertook cleanups valued at more than $370 million, which include:
- Two cleanups conducted by the Department of Energy at its Brookhaven National Laboratory in New York, valued at $42 million. The cleanups include the removal of a reactor, as well as ancillary buildings, equipment, soil, and remediation of contaminated ground water.
- Three cleanups conducted by the Department of the Navy of contaminated soil and ground water at the Hunters Point Naval Shipyard in California valued at $78 million.
- Two cleanups conducted by the United States Air Force of contaminated ground water at the Otis Air Force Base in Massachusetts valued at $73 million