Enforcement and Assistance in New England
In New England, there are presently more than 100 sites listed on Superfund’s National Priorities List (NPL) that are in various stages of investigation and cleanup. The Superfund statute (officially the Comprehensive Environmental Response, Compensation and Liability Act, "CERCLA") provides EPA with multiple authorities to achieve cleanup and receive payment for cleanup at sites. Over the past year, we utilized both the traditional enforcement approach and more innovative ways to achieve our cleanup goals.
The Superfund Program operates under an enforcement first approach aimed at requiring that companies and individuals responsible for a contaminated site perform and pay for the investigation and cleanup. As a result of settlements negotiated or orders issued over the past year, private parties will be performing over $100 million in cleanup work at major Superfund sites across New England.
For example, in August of 2007, we issued a Unilateral Administrative Order (Order) that directed Stauffer Management Company and Pharmacia Corporation to begin the second phase of cleanup activities to restore the Industri-plex Superfund Site in Woburn, MA. The Order was necessary because settlement negotiations for performing the cleanup work had broken down. After receiving the Order, the parties returned to the table to continue negotiations. The comprehensive cleanup plan for the site is projected to cost $25.7 million and will address soil, sediment, groundwater and surface water contamination. The Industi-plex Superfund site has a history of over 100 years of industrial pollution.
At some sites where the responsible parties are unwilling to cooperate, we perform the cleanup ourselves, using funds appropriated by Congress, and seek to recover our costs from those responsible. Over the past year, we received nearly $7.5 million for settlement of cost recovery claims against potentially responsible parties.
A Novel Financial Arranagement
The Centredale Manor Restoration Project Superfund Site is one of the most contaminated dioxin sites in the country. The site covers approximately 9 acres in North Providence, RI. It was previously the location of a chemical company and a barrel recycler. In the late 1980s, the site was redeveloped. Two apartment buildings were built under a federal funding program that provides affordable housing to low-income, elderly residents.
Since the site was listed on the NPL in 2001, we have initiated several removal actions and investigatory studies, many of which have been conducted by the responsible parties. As cleanup costs continued to mount, the owners of the two buildings, Brook Village and Centerdale Manor, expressed concern regarding their ability to continue to contribute to the cleanup. After an intensive review of each entity’s finances and the state and federal regulations governing low-income housing, we determined that the entities were unlikely to be able to pay for a significant amount of remaining cleanup costs. At the same time, both entities were at the end of their existing mortgages.
Our financial review indicated that the best way to raise funds for the cleanup was for the building owners to refinance their mortgages. But the mortgagee, the Rhode Island Housing and Mortgage Finance Corporation, a public entity, indicated that it would only refinance the mortgages if Brook Village and Centerdale Manor resolved their Superfund liability. Without financing from Rhode Island Housing, the apartments would likely revert to market rate housing and more than 240 elderly residents would lose their homes.
We reached a settlement with the parties, which then was approved in the fall of 2006 by the Rhode Island Federal District Court. The settlement involved the refinancing of the two mortgages by Rhode Island Housing through the sale of bonds, the payment by the two parties of all equity from the refinancing into a Special Account for the Site, and a commitment to pay additional funding from insurance settlements into the Special Account. The settlement also requires that the apartments continue to operate as low income housing for forty more years. In the end, we were able to garner the parties’ maximum ability to pay, raise about $4 million in funds for cleanup, and ensure the provision of continued affordable housing for the elderly tenants.
An Innovative Approach to Establishing Institutional Controls
The Peterson/Puritan, Inc. Superfund site is located in the towns of Cumberland and Lincoln, RI and straddles the Blackstone River. In 1959, the Peterson/Puritan plant began packaging aerosol products, and the facility remains in operation today under the name of CCL Custom Manufacturing Inc. In 1974, approximately 6200 gallons of solvent spilled from a rail car and tank incident that occurred during a delivery at the plant's tank farm. The site was placed on the EPA's National Priorities List in 1983 after our investigations revealed groundwater contamination had affected the area's municipal drinking water wells. Since that time, we have overseen cleanup and remediation activities at the site.
However, because most Superfund cleanups may leave some level of contamination in place, the remedies are not protective without some type of institutional controls -- typically deed restrictions -- that protect against the disturbance of contaminated groundwater and soil. In the Consent Decree for that section of the Peterson/Puritan Site, known as Operable Unit 1, the potentially responsible parties are required to record easements on fifteen properties to protect people from hazardous substances and insure the integrity of the cleanup. This process has been slow. Since 1995, when the Consent Decree was entered, easements have been put in place at only a few properties.
Last year, we took an innovative approach – the first in the nation – to address this very important issue of institutional controls at Superfund sites. Under this pilot, the potentially responsible parties finalized an agreement with the Guardian Trust, a separate, independent entity, to handle these institutional controls. The Guardian Trust has taken over the work of negotiating with the property owners, performing the intricate and time-consuming title work, recording the easements, and – extremely importantly – monitoring compliance with the easements. This novel arrangement is expected to speed up the process of recording easements, to improve monitoring of the environmental integrity of the controls, and finally to serve as a model for other sites in New England and nationwide.