Community Update on the Supplemental Consent Decree, November 19, 2013
After a hearing held on September 18, 2013, Judge William G. Young of the Massachusetts Federal District Court ruled from the bench to approve the Supplemental Consent Decree, which memorializes a settlement between the United States and Massachusetts, as plaintiffs, and AVX Corporation, as defendant, for the New Bedford Harbor Superfund Site.
Summary of the Settlement
Under the settlement, AVX will pay $366.25 million, plus interest, in three separate payments over two years. The settlement is the largest single-site cash-out settlement in the history of the Superfund program. The settlement funds will be paid to the United States and Massachusetts jointly, and will be retained by the U.S. Environmental Protection Agency (EPA) exclusively for cleanup of the Harbor Site.
The settlement will expedite the cleanup of polychlorinated biphenyl (PCB) contaminated sediment in the Harbor by providing over 90% of the estimated funds needed to complete the cleanup of PCBs in the Upper and Lower Harbors in 5-7 years, in contrast to an estimated 40 years under the past annual funding of $15 million from Superfund. The accelerated cleanup made possible by the settlement will result in a more rapid reduction of human health and environmental risks in the Harbor and will result in faster restoration of the Harbor for the use and benefit of the public.
Supplemental Consent Decree Court Approval Process
On October 10, 2012, after over four years of complex, arms-length negotiations with AVX, the United States of America, on behalf of EPA, and the Commonwealth of Massachusetts, lodged the Supplemental Consent Decree in Federal District Court. The Governments invited the public to submit comments on the settlement. The Governments received numerous comments in support and in opposition. After carefully considering all comments, on June 11, 2013, the Governments filed a motion to enter the Supplemental Consent Decree, which included a 126-page Responses to Public Comments. The Buzzards Bay Coalition (Coalition) filed a motion to intervene in order to oppose the settlement, and the Governments, AVX, and the Coalition filed additional briefs with the Court over the summer.
During the court hearing on September 18, 2013, in approving the settlement from the bench, the Court found and ruled, on the basis of the entire record, that the settlement is in the public interest. Parties had until November 18 to appeal the decision, but no appeal has been filed.
From the 1940s to the 1970s, AVX’s corporate predecessor, Aerovox Corp., owned and operated what was known as the Aerovox facility, an electrical capacitor manufacturing facility located on the western shore of New Bedford Harbor. The United States and the Commonwealth have determined that Aerovox discharged hazardous substances, including PCBs, into the Harbor, and that Aerovox’s facility was the primary source of PCBs released into the Harbor.
In 1983, the New Bedford Site was listed on the EPA’s Superfund National Priorities list, and the United States and the Commonwealth of Massachusetts filed suit against AVX and other companies for injury to natural resources at the Site from releases of PCBs. In 1984, the civil action was amended to include claims on behalf of EPA for recovery of response costs. AVX previously paid $66 million, plus interest, for past and future response costs and natural resource damages at the Harbor Site as a result of a 1992 settlement with the U.S. and the Commonwealth. The Governments reserved certain rights in that settlement through reopener provisions, which were exercised to bring about this current settlement. Under the court-approved Supplemental Consent Decree supplementing and modifying the 1992 settlement, AVX agreed to pay $366.25 million plus interest to settle its remaining liabilities for cleanup at the Harbor Site.
EPA is moving forward with the construction of the Lower Harbor CAD cell. For more information on the CAD cell please visit http://www.epa.gov/new-bedford-harbor/lower-harbor-confined-aquatic-disposal-cad-cell. The EPA New Bedford Harbor team is continuing to work on the Site and will begin developing plans to accelerate the cleanup of the PCB contaminated sediment in the Harbor. We will continue to update the community about progress at the Site as plans and activities move forward.
For additional information, please visit our website at www.epa.gov/nbh or contact
Kelsey O'Neil, EPA Community Involvement Coordinator