EPA v. AVX/NEW BEDFORD HARBOR

Case summary

9/18/2013: The court approved the consent decree between the U.S., Massachusetts, as plaintiffs, and AVX Corporation, as defendant, for the New Bedford Harbor Site. Under the CD AVX will pay $366.25 million for the Harbor cleanup. SUMMARY: THE NEW BEDFORD HARBOR IS A CERCLA NATIONAL PRIORITY LIST SITE INVOLVING PCB CONTAMINATION. THE SITE IS LOCATED IN SOUTHEASTERN MASS. THE CONTAMINATION WAS CAUSED BY MANY YEARS OF DISPOSAL & DISCHARGE OF PCB'S, PRINCIPALLY BY 2 FACILITIES WHICH FORMERLY PRODUCED CAPACITORS CONTAINING PCB'S. THE CASE WAS ORIGINALLY REFERRED FROM REG I TO HQ ON SEPT. 30, 1982, W/A DETAILED CASE DEVELOPMENT PLAN, BUT THE CASE WAS NOT REFERRED TO DOJ BECAUSE IT WAS DECIDED THAT A COURT ACTION SHOULD BE DEFERRED UNTIL COMPLETION OF THE RE- MEDIAL INVESTIGATION & FEASIBILITY STUDY (RI/FS). THE RI/FS IS SCHEDULED TO BE COMPLETED IN 3 PHASES, W/THE FIRST PHASE TO BE COMPLETED IN THE FALL OF 1984 & THE FINAL PHASE TO BE COMPLETED IN MID-1985. ON 9 DEC 1983, DOJ FILED A COMPLAINT ON BEHALF OF THE NATIONAL OCEANIC & ATMOSPHERIC ADMINISTRATION (NOAA), SEEKING RECOVERY FOR NATURAL RESOURCES DAMAGES UNDER SECT. 107(A)(4) (C) OF CERCLA. ON 10 DECEMBER 1983, A PARALLEL COMPLAINT WAS FILED BY THE MASS. ATTORNEY GENERAL'S OFFICE. THE ASSISTANT U.S. ATTY ASSIGNED TO THE CASE & ATTYS FROM DOJ HAVE EXPRESSED CONCERN THAT THE FILING OF THE NOAA SUIT RAISES THE POSSIBILITY THAT EPA MAY BE COLLATERALLY STOPPED FROM RAISING ISSUES IN ANY SUBSEQUENTLY FILED SUIT, IF THEY HAVE ALREADY BEEN ADJUDICATED IN THE NOAA SUIT. FURTHER, BECAUSE NOAA RELIED PRIMARILY ON EPA DATA IN FILING ITS CASE, EPA EMPLOYEES & CONTRACTORS WILL PROBABLY BECOME INVOLVED AS WITNESSES DURING DISCOVERY & THE TRIAL OF THE NOAA CASE. THIS INVOLVEMENT WILL HAVE RE SOURCE CONSEQUENCES FOR EPA. PAST NEGOTIATIONS W/SEVERAL OF THE DEFS INDICATE THAT THEIR POSITSIONS MAY BE IRRECONCILABLE AS TO THEIR INDIVIDUAL LIABILITY CONCERNING HARBOR CLEAN-UP & A FAIR APPORTION MENT OF RESPONSIBILITY AMONG THEMSELVES. THERE ARE SEVERAL COMPLICATED ISSUES OF CORPORATE LIABILITY WHICH MAY TAKE CONSIDERABLE TIME TO NEGOTIATE OR LITIGATE. COMMENCING LITIGATION NOW WILL BEGIN THE PROCESS OF RESOLVING LIABILITY ISSUES AND OF FORCING THE COMPANIES TO DEVELOP AN APPORTION- MENT FORMULA SO THAT SUFFICIENT FUNDS ARE AVAILABLE TO CARRY OUT THE REMEDIES. OTHERWISE, REMEDIES MAY PROVE TO BE TOO COSTLY TO BE FUNDED BY SUPERFUND ALONE. REG. I RECOMMENDS REFERRAL OF CASE TO DOJ FOR IMMEDIATE FILING OF AN AMENDED COMPLAINT, COMBINING EPA'S CAUSES OF ACTION W/NOAA'S. DOJ HAS RECOMMENDED THAT SUCH AN AMENDED COMPLAINT BE FILED NO LATER THAN FEB 27, 1984. NATURE OF THE CASE: THE PCB CONTAMINATION IN NEW BEDFORD EXTENDS OVER 18,000 ACRES OF PRODUCTIVE FISHING & LOBSTERING WATERS. PCB'S HAVE BEEN FOUND IN NEW BEDFORD HARBOR SEDIMENTS IN CONCENTRATIONS AS HIGH AS 190,000 PPM. A FISHING BAN WAS IMPOSED IN 1977 & EXTENDED IN 1979, W/ADVERSE EFFECTS ON THE LOCAL ECONOMY. THE PRINCIPAL SOURCES OF PCB'S ARE AEROVOX CORP. & CORNELL DUBILIER ELECTRONICS CORP., 2 ELECTRICAL CAPACITOR MFG FACILITIES WHICH FORMERLY USED & DISCHARGED PCB'S TO THE HARBOR. OTHER POTENTIAL DEFS INCLUDE THE PARENT CORP. OF AERO- VOX, RTE CORP.; THE FORMER PARENT CORP. OF CORNELL DUBILIER, FEDERAL PACIFIC ELECTRIC CORP; & THE PAST OWNERS OF AEROVOX, BELLEVILLE INDUSTRIES & AVX CORP.(RELIANCE ELECTRIC OWNS FED PACIFIC, & RELIANCE ELECTRIC IS OWNED BY EXXON. WE DO NOT ANTICIPATE NAMING THESE AS DEFS AT THIS TIME. IN 1981 & 1982, REG I MET INDIVIDUALLYU W/AEROVOX, CORNELL DUBILIER & AVX TO DISCUSS THEIR ROLE IN THE CLEANUP OF NEW BEDFORD AREA. WHILE REFUSING TO CLEAN THE HARBOR, THEY DID AGREE TO CONSENT ADMINISTRATIVE ORDERS IN MAY 1982 TO CLEAN UP THEIR RESPECTIVE PROPERTIES AS FAR AS THE WATER LINE. CORNELL DUBILIER HAS COMPLETED ITS CLEAN-UP & IS NOW WORKING TO CLEAN THE SEWER LINES

Defendants (6)

• AEROVOX, INC.Named in complaintNamed in settlement
• AVX, INCNamed in complaintNamed in settlement
• BELLEVILLE INDUSTRIESNamed in complaintNamed in settlement
• CORNELL-DUBILIER ELECTRONICS, INC.Named in complaintNamed in settlement
• FEDERAL PACIFIC ELECTRIC, INCNamed in complaintNamed in settlement
• RTE, INC.Named in complaint

Facilities (1)

• NEW BEDFORD

  ACUSHNET ESTUARY, NEW BEDFORD, MA, 02740

  Registry ID: 110009290169

Statutes cited

• CERCLA 107 — Superfund
• CWA 504 — Emergency Powers
• RCRA 7003 — Imminent Order: Solid or Hazardous Waste
• CERCLA 106A — Imminent & Substantial Endangerment Order

Enforcement conclusions (3)

• AVX CORP/NEW BEDFORD HARBORentered 1991-07-17

  Primary law: CERCLA

• AVX CORPORATIONentered 1992-11-13

  Primary law: CERCLA

• AVX CORP/NEW BEDFORD HARBORentered 1992-02-03

  Primary law: CERCLA

Timeline (9 milestones)

• 1982-09-30Referred To Headquarters
• 1984-02-23Referred To Dept Of Justice
• 1984-02-24Referred TO U.S. Attorney
• 1984-02-24Complaint Filed With Court
• 1984-02-24Returned To Region
• 1984-02-24Rereferred
• 1992-11-13Final Order Lodged
• 1992-11-13Final Order Entered
• 2008-03-10Supplemental Referral-Other