Hazardous Waste Management

Even Death Cannot Mitigate Superfund Liability

In a recent case, the Birch Swamp Road Superfund site in Warren, R.I. was the center of a settlement with the estate of a deceased responsible party and the Defense Logistics Agency (DLA) to recover partial costs of past cleanup activities at the site.

Historically, the deceased site owner operated an unlicensed junk yard from the late 1960s until the early 1990s. Some of the junk materials, such as autos, electric transformers, and other industrial equipment contained hazardous materials, including approximately 4.2 million pounds of military equipment sold to the owner by the DLA. The site is also home to an unnamed stream that flows to the Kickemuit Reservoir, which is the source of drinking water for the towns of Warren, Bristol, and Barrington, R.I.

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In March 2006, the Rhode Island Department of Environmental Management (RIDEM) requested that the EPA conduct a Preliminary Assessment and Site Investigation (PA/SI) of the junk yard site and in August 2006, EPA requested access to the site from the owner. Permission for access was not provided and EPA was issued a warrant for entry and access to the site in April 2007.

The following July  the PA/SI was conducted and soil sample analyses indicated the presence of semi-volatile compounds (SVOCs) including benzo(a)pyrene, benzo(a)anthracene, benzo(b)flouranthene, benzo(k) flouranthene, and chrysene, as well as two polychlorinated biphenynls (PCBs), and the heavy metals, arsenic, antimony, lead, copper, and manganese. All were found in one or more samples at levels exceeding RIDEM residential direct exposure levels and are also hazardous substances regulated under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

In April 2008, the EPA sent the owner a written notice of potential liability, invitation to perform or finance cleanup activities, and another request for access to the site. A week later, the EPA signed an Action Memorandum (Action Memo) determining that “actual or threatened releases of hazardous substances from or at the site, if not addresses by a removal action, could have presented an imminent and substantial endangerment to public health, welfare, or the environment.” The Action also authorized the EPA to perform removal action at the site and to spend up to $752,400 in direct costs.

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 Again, the owner did not provide any of the requested items and subsequently passed away in mid-May 2008. The following July, the EPA was granted a warrant to access the site and from August through December 2008 conducted comprehensive cleanup and removal activities. In total, approximately 1,743 tons (3.4 million pounds) of contaminated soils were excavated, transported and disposed of at a cost of more than $1.4 million.

Despite his death prior to the cleanup activities, however, the site owner’s estate will now pay the United States $92,000 and 82 percent of the net proceeds from the sale of two properties, including a residential property, owned by the Estate in reimbursement for costs associated with the site cleanup.