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Waste and Chemical: Case Highlights

The following cases were brought by EPA to address violations of the federal waste and chemical statutes. Through the highlighted cases described below, and the many other EPA waste and chemical enforcement cases concluded in FY 2010, EPA compelled compliance with the law and achieved substantial environmental benefits, including reductions in toxics and pesticides totalling an estimated 8.3 million lbs. per year, treatment and minimization of hazardous wastes totaling 11.8 million lbs., and clean up of an estimated 9 million cubic yards of contaminated soil and approximately 107 million cubic yards of contaminated ground water.

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The Superfund statute (the Comprehensive Environmental Response, Compensation, and Liability Act, "CERCLA") provides EPA with multiple authorities to cleanup Superfund hazardous waste sites. EPA ensures that viable parties responsible for contamination conduct or pay for cleanup of these sites. Highlights of the Superfund enforcement accomplishments for FY2010 are available from Superfund Enforcement Highlights.

Tittabawassee River, Saginaw River and Saginaw Bay, Mich.

In January 2010, EPA and the Michigan Department of Environmental Quality (MDEQ) signed an Administrative Order on Consent (AOC) with Dow Chemical Company resulting in a comprehensive evaluation of dioxin contamination in the Tittabawassee River and Saginaw River and Bay and their floodplains. The Agreement also requires Dow to:

  • identify cleanup options,
  • design the remedy that EPA selects, and if needed,
  • select studies that may lead to removal actions.

Community involvement in this extensive agreement was a centerpiece of EPA's efforts to address the site. As part of its enhanced community involvement efforts, EPA made the proposed settlement agreement available for public comment prior to signing. The vast majority of the comments were supportive, with most of the comments relating to implementation of work under the settlement, rather than to the agreement itself. EPA and MDEQ continue to address those concerns through a robust schedule of community involvement activities. There is a Community Advisory Group (CAG) with 23 board members active at the site . The CAG has received funds through the agreement to secure technical assistance for the community. EPA also maintains a field office in Saginaw, Michigan, to provide additional service to the community.

Highlights of the agreement include:

  • Technical: Addressing high-use properties along the rivers, addressing erosion and movement of highly contaminated soil and sediment, and identifying cleanup options in upstream-to-downstream.
  • Procedural: How the Superfund process can meet Dow's investigation and cleanup obligations under its MDEQ RCRA active facility waste regulations license.
  • Enforcement: Fines Dow may be required to pay in the event of noncompliance with the agreement and the process for resolving disagreements among EPA, MDEQ and Dow.
  • Community: How the community can obtain technical assistance.

The Tittabawassee River/Saginaw River & Bay Site includes a 46 miles of river and portions of the Saginaw Bay. The rivers and floodplains include industrial, commercial, residential and agricultural areas. The Saginaw Bay watershed supports agriculture, manufacturing, tourism, outdoor recreations, and a vast variety of wildlife. Dioxins and furans are the primary contaminants, originating from historical releases from the Dow Chemical Company's Midland Plant.

Read more on the Tittabawasse River/Saginaw River & Bay Site.

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Privatized Cleanup of a Portion of McClellan Air Force Base

In June 2010, EPA entered into an AOC for the cleanup of a 560-acre portion of the former McClellan Air Force Base Superfund Site located in Sacramento County, Calif. Under the AOC, McClellan Business Park, LLC (MBP), the property developer, will conduct the cleanup of the property, with oversight by EPA and the State of California. As part of the project, the Air Force transferred the property to Sacramento County, which then transferred it to MBP. The Air Force is funding the work required by the AOC, estimated at $17 million.

In 2007, EPA executed a similar AOC for a 62-acre parcel as the Site, which represented the first privatized cleanup at a federal facility on the National Priorities List. Generally, the Air Force would be responsible for investigating contamination and cleaning up Superfund sites before the property could be transferred to a private party for redevelopment.

The Air Force has been performing cleanup at the Site under a Federal Facilities Agreement (FFA). EPA, the Air Force, and the State of California amended the FFA to transfer the Air Force's obligations for soil and soil gas cleanup to MBP, the developer and new owner of the property. Along with the transfer of cleanup responsibilities, the Air Force transfers ownership of property before all necessary environmental cleanup is completed, which is known as "early transfer." Through early transfers, EPA helps communities benefit from faster reuse and redevelopment.

The privatization and early transfer of property is intended to speed up cleanup by combining redevelopment and cleanup goals. The 560 acres of the Site were contaminated by previous industrial activities that released solvents, radium, metals, and polychlorinated biphenyls (PCBs).

Read more on the McClellan Air Force Base Site McClellan Air Force Base Site.

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Monitor Devices, Inc. / Intercircuits, Inc. Superfund Site

On June 18, 2010, EPA settled a major cost recovery Consent Decree with Wall Herald Corporation that recovered $19.7 million in cleanup costs at the Monitor Devices Site. In addition, the United States Army and Air Force will pay a combined $225,000. The settlement amount represents 100 percent recovery of all costs EPA incurred in the past and is likely to incur in the future relating to the Site. In addition, the settlement is expected to facilitate the cleanup of 1.4 million cubic yards of groundwater contaminated with substances, including, copper, lead, chromium, tin, and trichloroethene (TCE) and other volatile organic compounds (VOCs).

The Monitor Devices, Inc./Intercircuits, Inc. Superfund Site is located in Wall Township, N.J. The Site includes a building that Wall Herald leased to Monitor Devices, in which Monitor Devices manufactured and assembled circuit boards. Effluent from the processes was discharged directly to the ground at the rear of the building resulting in contamination of the groundwater.

Read more on the Monitor Devices Superfund Site and the press release announcing settlement by EPA and Wall Herald.

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Lyondell Chemical Company Bankruptcy

On April 23, 2010, the United States Bankruptcy Court for the Southern District of New York approved a settlement agreement between EPA, the departments of Commerce and Interior, and the states of California, Illinois, Maryland, Michigan, North Carolina, Pennsylvania, Texas and the Lyondell Chemical Company, resolving Lyondell's liability for $160 million in past and future response costs under the CERCLA and for penalties for violations of the Resource Conservation and Recovery Act (RCRA) and the Clean Air Act (CAA).

The settlement agreement requires Lyondell to establish a custodial trust where nine contaminated properties will be transferred to the trust along with approximately $106.4 million to clean up those properties. EPA is the lead cleanup agency at three of the properties and the secondary government agency at the remaining six properties. Of the approximately $106.4 million, $50.05 million will be devoted to the Allied Paper/Portage Creek/Kalamazoo River Superfund Site (Kalamazoo River Project Site) which stretches 80 miles in Southwest Michigan. Lyondell is also required to make a cash payment of approximately $53.6 million to EPA for Lyondell's existing work obligations at six sites located in five states. Of the approximately $53.6 million, approximately $49.55 million will be devoted to the Kalamazoo River Site. The $160 million total of cash and trust dollars will be used for cleanup at these nine sites.

Lastly, for EPA's remaining claims against Lyondell for cleanup costs pursuant to CERCLA and for civil penalties for violations of RCRA and the CAA, EPA will receive allowed general unsecured claims in the amount of $1.1 billion. EPA anticipates that the remaining claims will be paid out at a substantially reduced rate consistent with the payout rate of other general unsecured creditors.

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St. Maries Creosote Superfund Site

On February 9, 2010, the United States District Court for the District of Idaho approved a consent decree (CD) between EPA, the Department of Justice, the Coeur d'Alene Tribe and the City of St. Maries, Carney Product Company Ltd., and the general partners of B.J. Carney & Co regarding the St. Maries Creosote Superfund Site located in Idaho within the boundaries of the Coeur d'Alene Reservation. Additionally, the Settling Defendants' contractor, Arcadis U.S., Inc., was a signatory to the CD and agreed to perform the remedial design and remedial action at the Site as well as to provide financial assurance.

The Consent Decree addresses the cleanup of a former wood treating plant estimated at $12 million dollars, and includes excavation and thermal treatment of soils and river sediments, and in-situ stabilization of deeper soils. The CD also provides for the payment of $555,951.23 in past response costs incurred by the United States, all future response costs to be incurred, and tribal response costs.

Read more on the St. Maries Creosote Superfund Site.

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ITT Thompson Industries Superfund Site

On April 28, 2010 EPA entered into a consent decree with ITT Thompson Corporation, the lone viable potentially responsible party (PRP), to perform the remedial design/remedial action (RD/RA) at the ITT Thompson Industries Superfund Site. This work will result in the cleanup of 2,000 cubic yards of contaminated soil and approximately 5.3 million cubic yards of a contaminated aquifer that extends beyond the facility property and underneath adjacent residential and commercial properties.

ITT Thompson will perform in-situ bio remediation of the ground water and will remove contaminated source soil and sediment at an estimated cost of $2.6 million. In addition to performing the response, ITT Thompson will pay EPA's future oversight costs and reimburse the Agency for all remaining past costs associated with the Site for a total payment of $23,300.

The ITT Thompson Industries Superfund Site is located in Madison County, Florida and consists of soil, sediment, surface water, and ground water that were contaminated from the ITT Thompson facility. The Site has followed the Superfund Alternative Approach, which can save the time and resources associated with listing a site on the NPL.

Read more on the ITT Thompson Industries Superfund Site.

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Fletcher's Paint Works and Storage Superfund Site

On June 11, 2010, EPA Region 1 issued a Second Modification to the Unilateral Administrative Order (UAO) for RD/RA to General Electric (GE) for the Fletcher's Paint Works and Storage Superfund Site in Milford, N.H. The Second Modification requires an additional $6 million in work and will address 29,000 cubic yards of contaminated soil and 5,122,656 cubic yards of contaminated groundwater. EPA issued the original UAO in July 2001 after extensive negotiations for the performance of the cleanup remedy failed to result in a settlement. EPA issued the First Modification to the Order in August 2001.

The cleanup described in the UAO is based upon EPA's 1998 record of decision (ROD) for Operable Unit 1. The ROD called for excavation, on-site treatment via low temperature thermal desorption, low permeability capping of residuals, and long-term monitoring of groundwater. In July 2001, GE requested that EPA consider off-site disposal as the primary means to address the excavated soils at the Site.

This Second Modification to the UAO follows the signing of the Amended ROD in June 2009 to reflect the change in the final disposition of the most contaminated soils from excavation and on-site treatment to excavation and off-site treatment/disposal. In addition to the $6 million under the second modified UAO, the total cleanup costs associated with this Site are estimated to be $20 million.

Read more on the Fletcher's Paint Works and Storage Superfund Site.

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Resource Conservation and Recovery Act (RCRA)

The Resource Conservation and Recovery Act (RCRA) regulates the generation, treatment, storage, and disposal of hazardous waste to ensure its safe management from the time it is generated until its ultimate disposal, that is, "cradle to grave." RCRA prohibits the storage of hazardous waste unless an owner or operator of a hazardous waste storage facility obtains a permit pursuant to the implementing regulations. The RCRA Corrective Action enforcement program effectively addresses cleanup of contamination at a facility.

The following are major cases concluded in fiscal year 2010:

Chamberlain Manufacturing Corporation

In April 2010, EPA issued a Unilateral Administrative Order (UAO) requiring Chamberlain Manufacturing Corporation to conduct interim measures to characterize and mitigate potential vapor intrusion (VI) of volatile organic compounds (VOCs) into nearby residences located above a VOC groundwater plume originating at the facility, located in Waterloo, Iowa. The order also requires the development of a cleanup plan for the remaining site contamination of soil and groundwater, and restricts access to the facility. The work addresses an estimated 484,000 cubic yards of contaminated soil and the cleanup work is valued at $6.322 million.

The site is a 22.8-acre historic manufacturing facility which manufactured metal washer wringers, projectile metal parts, aluminum awnings and refrigerator shelves, among other items. The former owner ceased operations at the facility in the 1990s. In 2005, the City of Waterloo purchased the site from Atlas Warehouse to facilitate redevelopment. The city received Brownfields cleanup grant funding in 2008, for the sampling and removal of asbestos from a group of dilapidated buildings prior to their demolition.

In 2008, VOCs were found in shallow groundwater under a nearby residential neighborhood. A VI study was conducted finding elevated levels of VOCs beneath the basement floors of nine homes. Those sampling results indicated that trichloroethene (TCE), tetrachloroethene (PCE), were found to potentially exceed health risk-based screening levels for indoor air. The short-term interim action required the installation of vapor mitigation systems (with permission of homeowners) in the affected nearby residences.

Chamberlain was also ordered to post notice of hazardous materials (the site had repeatedly been broken into by trespassers) to restrict site access. The scope of work in the order requires Chamberlain to:

  • conduct VI characterization;
  • develop VI interim measures;
  • characterize the aquifer;
  • conduct a correction measures study,
  • implement correctives measures;
  • submit an operation and maintenance (O&M) plan; and
  • submit a completion report to EPA.

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CF Industries

On September 28, 2010, the Consent Decree was entered in the United States and FDEP v. CF Industries, Inc., in the United States District Court for the Middle District of Florida. The settlement resolves CF Industries' (CF) RCRA violations, and requires the company to pay a civil penalty of more than $700,000 (split between EPA and FDEP) and provide $163.5 million in financial assurances to guarantee appropriate closure and long-term care of the closed facility. CF, a manufacturer of phosphate and nitrogen fertilizers, operates a 400-acre phosphogypsum stack and associated ponds for storing mineral processing wastes from its phosphoric acid production operations. As a result of the settlement, 9,862,884,000 pounds/year of hazardous waste were eliminated and 5,880,000 pounds of hazardous waste will be treated. This is the first case concluded under EPA's National Enforcement Initiative for Mining and Mineral Processing. The Consent Decree had been lodged with the Court on August 6, 2010, concurrently with the filing of the omplaint. After notice was published in the Federal Register, no comments were received on the proposed consent decree during the public comment period.

CF has also agreed to spend approximately $12 million to reduce and properly manage hazardous wastes generated at its Plant City, Florida, phosphoric acid and ammoniated fertilizer manufacturing facility. As part of the agreement, CF has implemented comprehensive waste containment and spill prevention measures to better manage its wastes, reconfigured scrubbers to eliminate all hazardous wastes from fertilizer manufacturing and reduce ammonia releases to the environment, and constructed a treatment system for hazardous wastes generated in fertilizer operations. CF has completed the full site investigation required under the settlement to assess the degree of environmental contamination emanating from the phosphogypsum stacks and ponds, and will take steps to remove and treat contaminated soils. In addition, the company will implement several management plans to ensure future compliance with RCRA, which addresses the appropriate handling, storage and disposal of hazardous wastes. Between December 2004 and January 2005, inspectors from EPA and FDEP discovered that CF was treating, storing and disposing of hazardous wastes in its stacks and associated ponds without a permit and failing to meet land disposal restrictions. CF had also failed to provide adequate financial assurance for closure, long-term care and third-party liability for its facility.

Read more on the CF Industries, Inc. settlement.

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PCS Phosphates

On June 2, 2010, EPA executed a RCRA Section 7003 Order on consent with PCS Phosphates - White Springs, in White Springs, Florida to address the sinkhole that occurred on December 10, 2009, at PCS's Swift Creek Chemical Complex. The sinkhole caused at least 84 million gallons of D002 (corrosive) hazardous wastewater and solid phosphogypsum to be discharged into the Floridan Aquifer, the primary drinking water source for northern Florida and southern Georgia. The Order requires PCS to develop and implement a plan to: 1) reduce potential contamination to underlying aquifers by process wastewater releases that could be caused by additional sinkhole formation/collapse; and 2) address long-term risk by taking active measures designed to reduce the volume of water that would be released in the event of additional sinkhole formation/collapse. The Order was out for public comment from May 5, 2010, through May 20, 2010. Five comments were received, with no requests for a public hearing. The estimated injunctive relief required for compliance with the RCRA 7003 order is $151 million. EPA estimates that the hazardous waste that will be prevented from release to groundwater is 4,299,533 cubic yards (D002 hazardous waste).

PCS Phosphate manufactures phosphoric acid to produce fertilizers at its two White Springs Facilities: the Suwannee River Complex and the Swift Creek Complex. Wastes from the phosphoric acid production activities include phosphoric acid process wastewater and phosphogypsum, which is accumulated as large piles of solids containing process wastewater (known as phosphogypsum stacks). There are three phosphogypsum stacks located at the Facilities. Cooling ponds used to store process wastewater are located on top of each phosphogypsum stack, and also surround each phosphogypsum stack. Some of this process wastewater is normally cycled back to the plants for production activities. The process wastewater has a pH of 2 (or less) due to residual phosphoric acid. PCS is one of the companies engaged in settlement negotiations with EPA and the Department of Justice pursuant to the National Enforcement Initiative for Mining and Mineral Processing.

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Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) addresses the sale, distribution, and labeling of pesticides, as well as the certification and training of pesticide applicators. Read more on the FIFRA enforcement program.

American Vanguard Corporation

EPA issued a FIFRA Stop Sale, Use or Removal Order against American Vanguard Corporation (AMVAC), of Los Angeles, California, on August 12, 2010, to stop further distribution and sale of registered pesticide products containing the active ingredient pentachloronitrobenzene (PCNB), the composition of which differed from what had been accepted by the Agency when the products were registered. The difference in composition was based on test data that showed the presence of impurities of known toxicological significance. EPA issued the Order to ensure that the public was protected from any potential adverse affects from these impurities. The Stop Sale, Use or Removal Order affected over 13,000,000 pounds of violative PCNB pesticide products.

Read more on the AMVAC order.

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Monsanto Company Inc., of St. Louis, Mo., agreed to pay a $2.5 million penalty to resolve misbranding violations related to the sale and distribution of cotton seed products that are genetically engineered to express pesticides. This is the largest civil administrative penalty settlement ever received under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).

Monsanto's Bollgard and Bollgard II cotton seed products that express pesticides are considered plant-incorporated protectants (PIPs), which are registered pesticidal products under FIFRA. These PIPs are based on naturally occurring bacteria known as Bacillus Thuringensis (Bt). As a condition of registration, EPA prohibited the planting of Bollgard and Bollgard II in ten counties in the Texas panhandle to prevent pests from becoming resistant to Bt-based PIPs. Monsanto was required to include this planting restriction in its grower guides that accompany those products and function as FIFRA labeling.

In 2007, Monsanto disclosed to EPA that it had failed to include this planting restriction in the grower guides and as a result, those products were sold and planted in the ten restricted counties. Without that restriction in the grower guide, every sale and distribution of Bollgard and Bollgard II was a sale and distribution of a misbranded pesticide in violation of FIFRA. EPA's subsequent investigation confirmed that between 2002 and 2007, Monsanto distributed or sold theses misbranded cotton products more than 1,700 times nationwide without the planting restrictions in its grower guides. Monsanto subsequently corrected the grower guides by including the required planting restriction for Bollgard and Bollgard II.

In September 2008, EPA lifted the planting restriction in the 10 Texas counties for Bollgard II after Monsanto applied for a change in the registration of that product.

Read more on the Monsanto Company FIFRA settlement.

Criminal Cases

For information on criminal violations involving hazardous waste, pesticide, and cross-media cases, see Criminal Case Highlights.

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