Dioxin: Regulatory Developments

October 24, 2016 | Commercial Litigation | Complex Torts & Product Liability

EPA Issues ROD Regarding $11 Million Cap Remedy for Standard Chlorine Chemical Superfund Site in New Jersey

The U.S. Environmental Protection Agency (“EPA”) has issued a record of decision (“ROD”) setting forth its plan to remedy contamination at the Standard Chlorine Chemical Company, Inc. (“SCCC”) Superfund site (the “SCCC Site”) in Kearny, New Jersey, along the Hackensack River.

Site Description

As the EPA explained in its ROD, the SCCC Site consists of approximately 42 acres in an industrial area of the town of Kearny, in Hudson County, New Jersey. It includes the 25-acre former SCCC property located at Belleville Turnpike and a 13-acre portion of the adjacent Seaboard Hudson County Improvement Authority (“HCIA”) property, commonly referred to as the Seaboard property. Together, the SCCC property and 13-acre portion of the Seaboard property were designated as Area 1 of the SCCC Site.

The SCCC Site also includes 3.8 acres that consist primarily of the Belleville Turnpike, Newark Turnpike, and associated right-of-ways and steep embankments, which were designated as Area 2 of the SCCC Site.

The Seaboard property adjacent to the south of the SCCC Site is a New Jersey brownfields site, and the Diamond Shamrock property adjacent to the north of the SCCC Site is also a New Jersey brownfields site.

Site History

The area of the SCCC Site originally consisted of marshlands bordering the Hackensack River. In the first half of the 20th century, industrial fill materials were placed in the coastal marshlands of this region to create property for industrial/commercial development. The SCCC Site is relatively flat, with elevations ranging from about three to 15 feet above sea level.

The EPA pointed out in its ROD that, since 1916, various forms of industrial manufacturing, chemical refining, blending/mixing, and/or processing have occurred on the different parcels that make up the SCCC property. Activities have included naphthalene refining and product formulation, lead-acid battery manufacturing, formulation of drain cleaner, dye-carrier production, and distillation/purification of various chlorinated benzenes.

Buildings, production areas, ditches, and lagoons were constructed to support these operations. Two lagoons (east lagoon and west lagoon) were located on the eastern portion of the SCCC Site. The lagoons drained into a ditch that ran along the southern property boundary and into the Hackensack River.

Early environmental response actions were previously completed at the SCCC Site with oversight by the EPA and/or the New Jersey Department of Environmental Protection (the “NJDEP”).

At the current time, SCCC Site access is restricted. The surface of the SCCC property is currently either paved, covered with coarse gravel, or vegetated. Most of the buildings have been demolished and several concrete slabs are all that remain of the other former structures. The only original structures remaining are the five dilapidated buildings associated with the Thomas A. Edison, Inc. Emark Battery Corporation. A newly built structure houses the hydraulic control system and groundwater treatment plant.

On the eastern portion of the SCCC Site, a mounded consolidation area was constructed with an engineered cover. A number of dense non-aqueous phase liquid (“DNAPL”) recovery wells, groundwater extraction wells, and piezometers are present at the SCCC Site for operation, maintenance, and monitoring (“O&M”) of the early response actions.

The SCCC Site is located within the 100-year floodplain of the Hackensack River, with the exception of limited areas that have been raised due to certain early response actions. Surface water runoff at the SCCC Site previously was channeled into surface ditches that emanated eastward toward the Hackensack River or into on-site lagoons. Currently, no flowing surface waters are present on the SCCC Site. A new subsurface stormwater collection piping system manages the stormwater runoff. Approximately 1.28 acres of man-made freshwater wetlands exist across the SCCC Site.

Regulatory History

In 1982, a NJDEP inspection of the SCCC property revealed the presence of chromite ore processing residue-impacted fill materials, hexavalent chromium in surface waters, and spillages of naphthalene and dichlorobenzene on the ground surface. According to the EPA, the inspection also disclosed that the lagoon system at the SCCC Site was previously used for waste disposal by Koppers Company. Moreover, the EPA said, groundwater samples collected from a monitoring well on the Diamond Shamrock property adjacent to the SCCC property’s northern border revealed the presence of naphthalene, dichlorobenzene, and trichlorobenzene in the groundwater, which the NJDEP suspected to have migrated from the SCCC property.

Subsequent sampling undertaken by SCCC and the NJDEP from 1983 until 1987 demonstrated the presence of hazardous substances in groundwater and soil throughout the SCCC Site, according to the EPA.

In October 1989, SCCC entered into an administrative consent order with the NJDEP to conduct a remedial investigation and perform a remedial action at the SCCC Site.

In April 1990, Occidental Chemical Corporation (“OCC”) and Chemical Land Holdings, Inc. (now, Tierra Solutions, Inc.) entered into a separate administrative consent order to address the chromite ore processing residue-impacted fill materials at the SCCC Site, which, the EPA said, had been generated at the adjacent Diamond Shamrock property.

The NJDEP was the lead agency during these initial investigations and early response actions.

In December 2001, the NJDEP referred the SCCC Site to the EPA for proposed inclusion on the National Priorities List (“NPL”).

On April 30, 2003, the EPA proposed adding the SCCC Site to the NPL. The SCCC Site was subsequently listed on the NPL on September 19, 2007.

Enforcement History

In April 2008, the EPA sent a general notice letter to SCCC, OCC, Beazer East, Inc., and Tierra Solutions advising each party of its potential responsibility for cleanup of the SCCC Site under Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), including all costs incurred by the EPA in responding to releases at the SCCC Site.

The EPA sent a similar general notice letter to Cooper Industries, LLC, in July 2009 and to Apogent Transition Corp. in December 2012.

In July 2010, the EPA contacted SCCC, Beazer, OCC, Tierra, and Cooper, inviting each party to enter into a settlement with the EPA to conduct remedial investigation and focused feasibility study (“RI/FFS”) activities at the SCCC Site.

Later, the EPA contacted Apogent to enter into a settlement.

The RI/FFS was conducted pursuant to a May 2013 administrative settlement agreement and order on consent entered into between the EPA and Apogent, Beazer, Cooper, and OCC. Tierra participated in the RI/FFS on behalf of OCC.

Interim Response Actions

In 2009, the EPA approved an engineering evaluation/cost analysis (“EE/CA”) for a non-time critical removal action under CERCLA that corresponded with an interim response action approved by the NJDEP in 2008. The EPA designated the NJDEP as the lead agency for implementation of the EE/CA.

As the EPA explained, activities conducted pursuant to the EE/CA and the NJDEP interim response action included the following engineering controls and containment measures:

  • Construction of a barrier wall containment system, a 1,230 foot long steel sheet pile wall along the Hackensack River, and a 6,880 foot long barrier wall with cement bentonite slurry two feet in width. The barrier wall was keyed a minimum of three feet into the underlying varved clay, which contained the area inside the barrier wall from the surrounding subsurface. The barrier wall system initially was designed to contain contamination on the SCCC property and Diamond Shamrock property and was expanded prior to construction to also enclose 13 acres of Seaboard property when groundwater and subsurface soil data showed that SCCC Site-related DNAPL had migrated onto Seaboard property.
  • A DNAPL recovery system consisting of 16 18-inch diameter high-density polyethylene recovery wells with 10-foot deep sumps within the barrier wall system; as of June 30, 2016, 6,330 gallons of DNAPL had been recovered at the SCCC Site for off-site disposal.
  • A hydraulic control system and groundwater treatment plant to maintain hydraulic control of groundwater within the barrier wall and to treat impacted groundwater pursuant to a New Jersey Pollutant Discharge Elimination System (“NJPDES”) permit, with treated effluent meeting discharge permit limits and then discharging to the Hackensack River.
  • Lagoon dewatering and solidification. Historic analytical results confirmed the lagoons as a significant source area. Lagoon solids were found to consist of 77 percent naphthalene with the remainder consisting largely of chlorinated benzenes, methylnaphthalene, phenols, 2,3,7,8-tetrachlorodibenzo-p-dioxin, arsenic, lead, and hexavalent chromium. The accumulated liquids in the former lagoons were collected and treated on-site and the solids were stabilized primarily with Portland cement and encapsulated in place.
  • Construction of a consolidation area and surface cover in the vicinity of the former lagoons. Soft soils in the south ditch were found to contain chlorinated benzenes (1,4- dichlorobenzene most frequently), naphthalene and other polycyclic aromatic hydrocarbons (“PAHs”) and, to a lesser extent, polychlorinated biphenyls (“PCBs”) and dioxin/furans, chromium, and lead. The south ditch soft soils were excavated, stabilized with Portland cement, and placed in the consolidation area. Materials generated during the barrier wall construction and nearshore river sediment impacted by chlorobenzenes, naphthalene and other PAHs, dioxins, and metals, including chromium, were removed, stabilized, and placed in the consolidation area. The consolidation area was covered with a multi-layer cover system consisting of a 60-mil linear low density polyethylene liner, geosynthetic drainage layer, structural fill, and top soil.
  • Treatment and disposal of septic tank contents. Six septic tanks were sampled and analyzed to determine appropriate disposal methods and requirements. The tank solids contained benzene, various chlorobenzenes, naphthalene and other PAHs, PCBs, and several metals. Solids were removed and disposed of off-site. Liquids were removed and treated in a temporary on-site treatment facility, and discharged through the NJPDES outfall. The tanks were then filled with a flowable concrete grout.
  • Process area surface cover and stormwater controls. A liner and gravel surface cover was installed in the former process area located to the north of the former lagoons. Existing surface cover materials across the SCCC Site were repaired as needed. Stormwater conveyance piping, catch basins, and manholes were installed to convey stormwater historically carried by the south ditch. The stormwater system was approximately 2,980 feet long and extended from the northwestern corner of the SCCC Site to the Hackensack River. 

CERCLA Removal Action

In June 2010, SCCC and Beazer entered into an administrative order on consent for a removal action with the EPA that required sealing the openings in the former process area buildings and the maintenance, and replacement as necessary, of the existing fencing surrounding the eastern portion of the SCCC Site and the warning signs along the fencing.

Now, the EPA has determined that actual or threatened releases of hazardous substances, pollutants, or contaminants from the SCCC Site, if not addressed, may present an imminent and substantial endangerment to public health, welfare, or the environment.

The EPA’s Plan

The EPA has decided to move forward with a program that it has referred to as “Targeted Cap/Cover, Continued DNAPL Recovery in Area 1, Barrier Wall System, DNAPL Recovery in Area 2, Institutional Controls, and Building Demolition.”

According to the EPA, the estimated 30-year present worth cost of the remedy, with a seven percent discount factor, is $11,246,000, with construction time estimated to be six months

The EPA said that, in addition to the remedy components already in place as a result of early actions at the SCCC Site, including the fully enclosed perimeter barrier wall system, hydraulic control groundwater extraction and treatment systems, existing surface covers, and stormwater management facilities, this remedy requires the following components:

  • Placement of targeted cap/cover in specific locations within Area 1 that were not capped/covered, including stone and vegetative cover areas and wetlands areas. The existing stone cover areas would be overlain by a more permanent cover such as asphalt paving. There also would be repairs to the existing covers (e.g., repairs to the asphalt) as necessary. Stormwater management enhancements, including wetland restoration, would be incorporated into the remedial design.
  • DNAPL recovery in Area 1 and Area 2.
  • Institutional controls (“ICs”), such as deed notices, classification exception area/well restriction areas (“CEA/WRAs”), soil management and health and safety deed notice protocols, requirements for vapor barriers installed in any new building construction, and/or other ICs to restrict future use of the SCCC Site to commercial/industrial uses and prohibit residential use, to prohibit groundwater use in Area 1 and Area 2, and to prevent potential adverse exposures.
  • Demolition of the Edison buildings.
  • Continued O&M of remedial components, including the fully enclosed perimeter barrier wall system, hydraulic control groundwater extraction and treatment systems, existing surface covers, and stormwater management facilities.

The EPA pointed out in its report that this remedy is “the first and only planned remedial phase or operable unit for the SCCC Site,” concluding that it addresses contaminated soil, surface water, groundwater, and DNAPLs.

Learn more: EPA Proposes $11 Million Cleanup for Standard Chlorine Chemical Site on the Hackensack River.

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EPA Reaches $165 Million Agreement with Occidental Chemical to Begin Cleanup of Lower Eight Miles of Passaic River

The U.S. Environmental Protection Agency (“EPA”) has reached an agreement with Occidental Chemical Corporation, one of more than 100 parties the EPA previously had identified as potentially responsible for contamination of the lower Passaic River, to perform engineering and design work needed to begin the cleanup of the lower 8.3 miles of the lower Passaic River in New Jersey.

Background

The lower 17 miles of New Jersey’s Passaic River, which stretches from its mouth at Newark Bay to the Dundee Dam, are part of the Diamond Alkali Superfund site. The Diamond Alkali site was added to the federal Superfund List in 1984. From 1983 to 2001, EPA-directed cleanup work was conducted on land at the former Diamond Alkali facility and in the streets and homes near it.

In 2012, the EPA oversaw dredging in the Passaic near the facility in Newark. About 40,000 cubic yards of sediment were removed, treated, and then transported by rail to licensed disposal facilities out of state.

In 2013, the EPA oversaw dredging of approximately 16,000 cubic yards of sediment from a half-mile stretch of the Passaic River that runs by Riverside County Park North in Lyndhurst, New Jersey. This area is located about 11 miles north of the river mouth and outside of the lower eight miles addressed in the EPA’s new plan.

The EPA has said that the sediment in the Passaic River “is severely contaminated with dioxin, PCBs, heavy metals, pesticides and other contaminants from more than a century of industrial activity.” According to the agency, the lower eight miles of the Passaic is the “most heavily contaminated section of the river” and 90 percent of the volume of contaminated sediments in the river are in the lower eight miles.

The EPA has said that over 100 pollutants have been identified in the sediment and that about 100 companies are “potentially responsible” for generating and releasing the pollution.

The EPA/Occidental Agreement

The agreement between the EPA and Occidental provides that the work, which includes sampling, evaluating technologies, and doing the engineering work necessary before physical cleanup work can begin, will be done under EPA oversight. Occidental Chemical also will pay for the EPA’s oversight costs.

In particular, under the settlement, Occidental Chemical Corporation will:

  • Develop an overall project management plan to get all work needed prior to and during the cleanup done on a prescribed schedule.
  • Submit to the EPA a design plan that includes work plans and technical approaches for implementing all design activities.
  • Submit field sampling and quality assurance plans for EPA approval, including a plan to collect and analyze sediment samples for the purposes of designing the dredging plan and the engineered cap.
  • Develop a plan for dredged material disposal.
  • Submit a site-wide plan to monitor water and air quality throughout the life of the cleanup project.
  • Identify and select a site or sites for the sediment processing facility, with public input.
  • Perform studies to evaluate enhanced capping technologies.

The EPA said that it will pursue additional agreements with all of the more than 100 parties it said are legally responsible for the contamination to ensure that the cleanup work in the lower 8.3 miles will be carried out and paid for by those responsible for the pollution as required by the Superfund law.

Learn more: EPA Finalizes Passaic River Cleanup.

For further information, please contact James V. Aiosa, Paul V. Majkowski, Lawrence S. Han, or your regular Rivkin Radler attorney.

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