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Making the Program Faster, Fairer, and More Efficient (Continued)
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Paying for the "Orphan Share"
Many times, wastes have been contributed to sites by companies that are now insolvent. The share of cleanup liability attributable to such parties is sometimes referred to as the "orphan share."
EPA's orphan share policy provides money from the Trust Fund to reduce the liability of PRPs that agree to perform cleanups. Allowing the Trust Fund (rather than PRPs) to pay for orphan shares enhances fairness and creates a major incentive for the PRPs to perform cleanups and to settle claims without litigation -- thereby decreasing the overall costs of the cleanup.
Recent EPA offers for orphan share compensation have expedited cleanups at the Operating Industries, Inc. Landfill in California and the Interstate Lead Company site in Alabama. Through October 2000, EPA has offered approximately $190 million in orphan share compensation at 119 sites.
Removing Legal Barriers to Economic Development
One of the biggest success stories of the Superfund program has been the return of hundreds of formerly contaminated properties to productive use. Areas that were once written off as toxic eyesores have been transformed into office buildings, recreational centers, wildlife habitats, and industrial plants.
These transformations will not take place unless certain legal issues are addressed first. Many real estate firms are afraid to develop a Superfund site because of the possibility that the firm could be found liable for the enormous costs of the cleanup -- even for conditions that existed before anyone at the firm became involved with the site.
One way the Federal government addresses these concerns is by entering into Prospective Purchaser Agreements (PPAs) with potential buyers of contaminated property. A PPA is an agreement where EPA conditionally releases a buyer from Superfund liability for contamination that existed before the buyer began work on the site. The PPA will not provide protection if the buyer creates any new contamination or makes existing site conditions worse.
In return for this conditional release from Superfund liability, the buyer agrees to help EPA with its mission of protecting human health and the environment. The PPA requires the buyer to: avoid any activities that would disturb the cleanup; provide EPA with access to the site so EPA can monitor the success of the cleanup; and, in many cases, help perform, or pay for, the cleanup itself.
In California, the Federal government entered into a PPA with a local real estate developer that allowed the Fairchild Semiconductor site to be transformed into the World Headquarters of Netscape Communications. Another successful PPA will allow soccer fields to be built over the cleaned up Avtex Fibers site in Virginia.
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Successful Enforcement at the BROS site EPA's response to the Bridgeport Rental and Oil Services (BROS) site in Bridgeport, New Jersey, is recognized as one of the greatest achievements of the Superfund Program. The cleanup of this former waste oil storage and recovery facility, proved to be one of the most technically challenging in the program's history and was galvanized by an enforcement settlement valued at $222 million. This represents one of the largest most complex settlements in Superfund history. The BROS site is a 30-acre property which is located approximately one mile east of the Town of Bridgeport and two miles south of the Delaware River. The site houses wastes including volatile organic compounds (VOCs), polychlorinated biphenyls (PCBs), and heavy metals (lead, cadmium, chromium, barium) accumulated during operation form 1950 through the late 1970s. Residents dependent on ground water were at risk of exposure. Pollution migrating from the site also threatened an ecologically sensitive wetland area. In 1979, the volatility of the site became realized as a chemical fire swept across the area, rocketing cylinders through the air and engulfing the site in a black toxic cloud. Enforcement began with an extensive discovery effort, resulting in a voluminous amount of deposition testimony which brought over 90 private parties to the negotiating table. EPA, in the spirit of the Superfund Reform initiatives, agreed to accept less than full recovery of its past cost and entered into a risk-sharing arrangement. Parties used non-binding mediation, an alternative dispute resolution mechanism, to assist them in the negotiations which resulted in this historic settlement. The settlement covered approximately 70 percent of the cleanup costs and required the private companies to complete the remaining cleanup of the site's ground water and wetlands. |
