Waste and Chemical: Additional Cleanup Accomplishments
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. Each fiscal year, 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.
In FY 2010, private party cleanup commitments were $1.4 billion which is down from $1.9 billion in FY 2009. Although commitment numbers are down this year, response values are the eighth highest since the inception of the Superfund program in 1980. In FY 2010, the Superfund enforcement program achieved $154 million in settlements with responsible parties to reimburse the government for money it has spent cleaning up Superfund sites. This number is down from $370 million in FY 2009 which was a record setting year for Superfund cost recovery settlements. Although the total number of cost recovery settlements in FY 2010 and FY 2009 are comparable (141 compared to 149) there were no large dollar settlements in FY 2010.
Each year the Agency also reports the volume of contaminated media (soil and water) addressed (VCMA), which can vary dramatically from year to year due to a number of factors, including:
- the number of cases,
- the size and number of sites to be cleaned up, and
- the type of cleanups being performed.
A review of VCMA data from FY 2004 through FY 2009 shows that large amounts of VCMA in a particular year are driven by a small number of large volume cases. In FY 2010, there were no cases for soil or water with especially large volumes of VCMA. The amount of contaminated soil addressed dropped from 28.7 million cubic yards to approximately 9 million cubic yards and the amount of contaminated water addressed dropped from 431 million cubic yards to 107 million cubic yards.
Fiscal year 2010 activities and results include:
Positive Outcomes from Bankruptcy Cases
EPA continues to vigorously pursue debtors in bankruptcy as part of its commitment to ensure that responsible parties, not taxpayers, pay for the cleanup of Superfund sites. EPA has treated bankruptcy cases as opportunities to achieve positive environmental results by both ensuring that bankruptcies do not create further environmental problems and recovering response costs and penalty claims for which debtors are liable.
EPA's sustained efforts have resulted in significant settlements and recoveries for fiscal year 2010 for several multi-regional, multi-site bankruptcy cases. In some cases, EPA secured the debtors' continued agreement to comply with cleanup obligations at Superfund sites upon the debtors' emergence from bankruptcy protection. In addition, EPA's recoveries under the settlements, including the examples below, will enable the EPA to achieve cleanup of contamination at numerous Superfund sites throughout the country.
Lyondell Chemical Company: On April 23, 2010, the United States Bankruptcy Court for the Southern District of New York approved a settlement agreement requiring Lyondell to pay $160 million to address environmental liabilities arising under Superfund. For information on the Lyondell Bankruptcy.
Chemtura: On September 17, 2010, the United States Bankruptcy Court for the Southern District of New York approved a settlement agreement in which Chemtura Corporation will pay approximately $26 million in cash and allowed claims for 17 properties, 12 of which are on Superfund's National Priorities List. A separate settlement agreement resolved Chemtura's environmental liabilities at the Gowanus Canal Superfund site in Brooklyn, New York. For information on the Chemtura Bankruptcy.
Chrysler: On April 20, 2010, the United States Bankruptcy Court for the Southern District of New York confirmed the Old Carco, LLC (formerly known as Chrysler, LLC) plan of liquidation. The plan provides up to $15 million to address four Chrysler-owned properties that were unlikely to be sold. In addition, the plan provided $500,000 to fund the Behr Dayton Thermal Systems VOC Plume Superfund Site in Dayton, Ohio. It also provided contingent funding, capped at $1.5 million, for the Behr site should Old Carco succeed in selling one or more of the four owned properties.
Implementation of the National Enforcement Strategy for RCRA Corrective Action
EPA recognized the need for a national comprehensive enforcement strategy to achieve final remedy construction by 2020 at 95% of the corrective action universe, or 3560 of the 3745 facilities on the Resource Conservation and Recovery Act (RCRA) cleanup baseline. On April 27, 2010, the Agency issued the National Enforcement Strategy for Corrective Action (NESCA). NESCA consists of five components:
- Outlines a strategy for assessing, targeting, and prioritizing EPA-lead RCRA facilities for corrective action enforcement.
- Describes procedures for increased communication and coordination between federal and state regulators.
- Highlights special enforcement considerations for EPA and the states when they take enforcement actions at corrective action facilities.
- Identifies future opportunities for training.
- Commits to exploring better ways to measure progress and results.
Although there was a significant increase in corrective action enforcement cases filed for FY 2010, we plan to conduct an 18 month review, which will take place during the fall of 2011. The evaluation will focus on assessing the contribution of NESCA in achieving progress toward the 2020 corrective action goal. Following this review, necessary modifications may be made and additional tools and guidance documents may be developed. EPA will continue to involve the states as NESCA is reviewed and modified as necessary. For information on NESCA.
Court upholds ruling on challenge to EPA's cleanup order authority
On June 29, 2010, the United States Court of Appeals for the District of Columbia Circuit affirmed an earlier decision by the U.S. District Court for the District of Columbia and held that EPA's pattern and practice of issuing Unilateral Administrative Orders under Superfund is constitutional and does not violate due process.
The district court decision in January 2009 stated that EPA's administration of its order authority does not offend due process and that the Constitution does not require the costly and time consuming procedures sought by the plaintiff, General Electric Company. 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.
Initially General Electric appealed the district court decision which the Court of Appeals affirmed on June 29, 2010. GE then petitioned the Appeals court to have its case either reheard by the three judge panel, which originally heard its arguments, or to have a rehearing before all 13 of the judges on the Court of Appeals for the District of Columbia Circuit. Both petitions were denied by the Court of Appeals on September 30, 2010.
The June 29 and September 30, 2010 decisions by the D.C. Court of Appeals allow EPA to continue to order parties to cleanup Superfund sites without delay. Read more on Superfund unilateral orders.