Waste Site Cleanup & Reuse in New England
Frequently Asked Questions
1. How did Beede Waste Oil become a Superfund Site?
Due to the facility's inception in 1929, some of the waste handling practices pre-date environmental regulation. More recently, in the 1980's, the Beede Waste Oil Company notified the State of New Hampshire that it was a waste oil recycler, as required by that state. As such, this facility was not subject to regulatory oversight by EPA during its operation (Beede was referred to EPA's federal Superfund program by the Governor of New Hampshire in 1995). Under New Hampshire law, the company had to control the type of waste it accepted at the facility to maintain its status as a recycler. It was subsequently determined that oils and other solids and liquids containing hazardous wastes, which fell outside the classification of waste oil regulated under the recycling provisions of New Hampshire law, were brought to the facility. The State of New Hampshire reacted by issuing several notices of violations to the Beede operations which, only after subsequent court actions, lead to closure of the facility in 1994. The Site was referred to EPA in 1995 and became a Superfund site in 1996, due to the threat to human health and the environment.
2. Why am I responsible for the clean up of the Beede Site?
The Beede Waste Oil Site contains significant soil and groundwater contamination which pose a continuing threat to the surrounding community and ecosystem. The Superfund law (the Comprehensive Environmental Response, Compensation and Liability Act or "CERCLA" at 42 U.S.C. Section 9601, et. seq.) was enacted by Congress in 1980 to clean up the most hazardous toxic waste sites. To achieve this goal, EPA must seek participation in the clean up of sites like Beede by parties that are legally defined as being liable under the Superfund law. Liable parties under Superfund include transporters and generators of hazardous waste, as well as owners and operators of businesses at the Superfund site.
3. How and why am I liable?
Superfund's strict liability is without regard to fault under the law and, in this case, includes many parties because Beede Waste Oil Inc. operated over such a long period of time. There is not necessarily an allegation of misconduct in being identified as a potentially responsible party ("PRP") at Beede; it is a matter of responsibility under the law. By locating as many legally responsible parties as possible to assist in the clean up of the Beede Site, the financial burden of cleaning up this heavily contaminated site is spread out most equitably and fairly amongst all the PRPs.
4. What are the different categories of generators?
Parties who generated 40,000 gallons or more of hazardous waste sent to the Beede Site are considered to be "major generators." These generators are made up of about 40 parties who are responsible for more than half of the overall known waste transported to the Site. Parties who generated between 276 and 39,999 gallons of hazardous waste sent to the Beede Site are considered to be “de minimis generators,” although EPA’s description of these parties as “large(r)” or “small(er)” de minimis has changed over time, as noted below.
As of 2005, parties who generated 20,001 gallons to 39,999 gallons are considered to be larger volume de minimis generators. These parties have been invited to participate in RD/RA negotiations with EPA (along with major generators, transporters and owner/operators), while retaining their de minimis status. Remaining non-settled parties who generated between 276 and 20,000 gallons are considered to be smaller volume de minimis generators. As noted earlier, these parties are expected to communicate directly with the larger volume de minimis generators and major generators about opportunities to settle during the RD/RA negotiations process.
[Originally, in 2001, parties who generated under 40,000 gallons but over 1,000 gallons of waste oil that was sent to the Beede Site were identified as "large de minimis generators." This group of about 1,400 parties account for almost half of the recognized waste sent to the Site, even though each party's individual contribution was relatively small. Parties who generated between 275 and up to and including 1,000 gallons of waste oil sent to the Beede Site were identified as "small de minimis generators." This group of about 1,000 PRPs accounted for about 5% of the located parties' waste. As of December 2004, 1,199 de minimis generator parties have settled with EPA in one of the four de minimis settlements for the Beede site. The State of New Hampshire joined EPA in the latter three settlements with de minimis parties.]
Parties who generated 275 gallons or less of hazardous waste sent to the Beede Site are considered to be "de micromis generators." These generators of minuscule amounts of hazardous waste were not sent General Notice letters of Superfund liability, are not being pursued for clean up costs or reimbursement, and will be actively protected from contribution law suits. In 2002, the Small Business Liability Relief and Brownfields Revitalization Act, Public Law 107-118 defined de micromis parties as those generators who contributed up to 110 gallons of hazardous waste to a site, excluding these parties from liability under CERCLA. (Note that the cut-off for de micromis classification of 275 gallons applied at Beede is more than double the 110-gallon cut-off legally required.) The de micromis group for the Beede Waste Oil Site includes almost one fourth of all the parties located, yet the total group volume represents less than 1% of the total waste sent to the Site.
5. When will EPA make another settlement offer?
EPA has completed four settlements with de minimis parties over the last four years. The first settlement offer was issued to generator parties who contributed between 276 gallons and 1,000 gallons of hazardous waste to the Site. The second settlement offer was issued to generator parties with a volume between 276 and 5,000 gallons. The Third De Minimis (ATP) Settlement was offered to 17 parties who submitted information in support of ability to pay claims during the second settlement round. The fourth settlement was issued to eligible parties who generated up to 20,000 gallons of hazardous waste to the Site. This fourth settlement was made effective on December 6, 2004, following a legally required notice and comment period.
As of December 6, 2004, many smaller volume parties have received one or more opportunities to settle with EPA and the State of New Hampshire. At this time, EPA is not planning to offer any additional separate opportunities to settle prior to commencement of negotiations for performance of the remedy. As described in the heading “Future Negotiations with EPA,” in September, 2005, EPA invited about 91 PRPs to participate in such negotiations. Parties who generated 20,001 gallons or above to Beede, as well as owner/operators and transporters must organize themselves into a representative group for participation in these remedy negotiations. Parties who generated between 276 and 20,000 gallons to Beede are expected to be contacted by and/or communicate directly with representatives of the parties invited to negotiate with EPA (and New Hampshire) in order to keep apprized of future opportunities to settle their liabilites at Beede.
6. What is the status of requests for EPA review of volumetric information?
In June, 2001, EPA informed all parties receiving Beede General Notice letters of liability that individual parties could submit documented requests for "waste quantity review" if an error was discovered in EPA's calculation of the total waste volume (in gallons) attributed to that party. The purpose of such reviews was to address errors in calculation or attribution deemed to be simple in nature, as opposed to more complex claims requiring additional research and fact finding. Although EPA asked parties to submit such requests for review within sixty days of receipt of General Notice, in fact, EPA reviewed such requests received until January 2002. Decision letters were issued shortly thereafter to parties who submitted claims that were determined to be simple and straightforward in nature (totaling more than 200).
Since 2002, EPA has continued this effort to review information, as deemed appropriate. EPA has focused its reviews on correcting clear mistakes in an effort to enhance settlement efforts. Prior to issuance of the Fourth De Minimis Settlement offer, EPA reviewed claims submitted from February 2002 to May 2004, and issued letters to a small number of additional parties. As of 2005, EPA considers these reviews to be essentially completed. You may continue to check the Beede Website for updates on volumetric ranking information, which is posted in the Liable and Settled Parties Lists section of this web site.
7. When will ability to pay claims be considered?
If a party determines that they cannot afford a settlement or "cash-out" amount specifically offered by EPA without experiencing undue financial hardship it may ask EPA to review its ability to pay the settlement amount offered. EPA requires that a party who wishes to pursue an "ability to pay" (ATP) claim compile and submit detailed financial information in support of the claim. Each settlement offer letter and invitation to participate in negotiations contained a sheet which specified the documentation necessary to conduct an ATP review. Informational letters issued to smaller volume generators also included the ATP documentation sheet (PDF) (10 pp, 374 K). Information about a tool EPA utilizes in conducting ATP reviews, called Ben & Abel, is on this website at http://www2.epa.gov/enforcement/penalty-and-financial-models. Note that this is only one part of the total financial ATP assessment.
EPA cannot review a claim unless all requested information is submitted for review. Parties that provide the required documentation will receive the results of EPA's analysis in writing. EPA received several ATP claims during the first, second and fourth settlement rounds. In response to ATP claims timely received during the Second De Minimis Settlement offer in 2002, EPA issued a settlement offer to 17 parties in June 2003 (the Beede Third De Minimis Settlement), and 12 parties chose to settle. EPA has recently issued preliminary determination letters to those PRPs who submitted ATP claims in response to the Fourth De Minimis Settlement.
8. When will EPA begin negotiating with the major parties for cleanup?
EPA issued invitations to participate in negotiations for Remedial Design and Remedial Action(“RD/RA”) in September 2005. These RD/RA negotiations, also called "global" settlement negotiations because of their scope, will culminate in a final settlement agreement for the site, to be set forth in a consent decree. EPA expects that major generator parties, larger de minimis generator parties, transporters and owners/operators will participate in these negotiations. Additionally, those de minimis parties who have not resolved their liability at Beede through any of the four de minimis settlements, whether by choice or because they have not yet received a de minimis settlement offer from EPA, have been asked to consider future opportunities to settle that may arise from this process (see “Future Negotiations with EPA”). Due to the number of parties involved, those who anticipate participating in these global settlement negotiations should start to organize themselves into a representative group.
9. Does the new small business/Brownfields law recently enacted have an impact on Beede?
On January 11, 2002, President Bush signed into law the Small Business Liability Relief and Brownfields Revitilization Act (Public. Law. No. 107-118). This law contains several exemptions to CERCLA liability, including liability relief for "de micromis" waste contributors. At this time, we believe that this new law has little or no impact on EPA's enforcement strategy and liability determinations at the Beede Site.
While the new law exempts from liability small volume "de micromis" parties that contributed 110 gallons of hazardous waste or less to a Superfund site, EPA has already met and exceeded this requirement by promising to protect all parties that contributed 275 gallons of hazardous waste or less to Beede.
The new law also codifies EPA's practice of offering ability to pay settlements to eligible parties at Superfund sites, by providing for conditional expedited settlements with eligible persons that demonstrate an inability or limited ability to pay response costs. Consistent with this practice, EPA Region 1 has provided individual parties receiving "cash-out" settlement offers in the first, second and fourth de minimis settlements with an opportunity to submit an ability to pay claim. The Beede Third De Minimis Settlement was, in fact, a settlement with parties who submitted Ability to Pay (ATP) claims in response to the second de minimis settlement offer. Parties submitting claims in the fourth settlement are currently undergoing analysis. Determinations will be sent to requesting parties in writing at some point in the future.
You may obtain a copy of the law via the Internet at http://thomas.loc.gov/.
10. What is EPA's position regarding Superfund Companies?
Generally, a "Superfund Company" is a private entity that seeks to assume or incur the legal obligations to finance and/or perform the clean up at a Superfund site. EPA remains neutral and does not endorse or guarantee the involvement of any particular Superfund Company at Beede. The Agency does, however, support exploration of innovative settlement ideas at Superfund sites and will not oppose the use of a Superfund Company at Beede, provided its approach is supported by the PRPs, and is reasonable and in the public interest. Be sure to read EPA's May, 2000 written statement concerning the criteria for involvement of any Superfund Company at Beede, posted on the Beede Website at www.epa.gov/region1/superfund/sites/beede/news.html.
The potential involvement of a Superfund Company will depend upon the input of many parties connected with Beede. PRPs are welcome to investigate any of these companies and any offer they may make. Note that EPA will continue to move forward with its settlement strategy, as described in questions numbers 5 and 8, above, and that PRPs will have future opportunities to consider settlement directly with EPA, if they are interested, whether or not a Superfund Company is ultimately involved in the Site.