EPA v. CITY OF NEW BEDFORD

Case summary

THE PROPOSED DEFENDANT IS THE CITY OF NEW BEDFORD, MA. THE CITY HAS DENIED EPA AND ITS REPRESENTATIVES ACCESS TO ITS PROPERTY AND ROADWAYS BY ENACTING A CITY ORDINANCE WHICH REQUIRES EPA TO OBTAIN A PERMIT FOR TRANSPORTATION AND USE OF EQUIPMENT ASSOCIATED WITH INCINERATION AND WASTEWATER TREATMENT, AND WHICH ESTABLISHES THE FOLLOWING STANDARD FOR ISSUANCE OF THE PERMIT: THE MAYOR AND CITY COUNCIL SHALL NOT ISSUE A PERMIT FOR THE TRANSPORTATION OF THE ITEMS ENUMERATED IN THIS SECTION UNLESS IT IS SATISFIED THAT THE TRANSPORTATION AND USE OF SAID ITEMS SHALL NOT CAUSE AIR POLLUTION, DANGER TO THE HEALTH OF THE RESIDENTS AND SHALL NOT BE DETRIMENTAL TO THE WELFARE AND SAFETY OF THE NEIGH- BORHOOD. ... (EMPHASIS ADDED) THE PURPOSE OF THE ORDINANCE IS CLEARLY TO DELAY AND/OR PREVENT ACCESS BY EPA NECESSARY TO EFFECTUATE A RESPONSE ACTION. THE REGION HAS SUBMITTED TO DOJ DOCUMENTATION AND VIDEOTAPE WHICH INCLUDE STATEMENTS BY CITY COUNCILORS TO THE EFFECT THAT THE ORDINANCE IS DESIGNED TO STOP EPA'S REMEDIAL ACTION. THE STATUTORY PROVISIONS WHICH FORM THE BASIS FOR THE PRO- POSED ACTION ARE SECTIONS 104(A) AND (E) OF CERCLA 42 U.S.C. 9604(A) AND (E). SECTION 104(A) PROVIDES FOR EPA TO TAKE RESPONSE ACTION TO ADDRESS A RELEASE OR SUBSTANTIAL THREAT OF ANY HAZARDOUS SUBSTANCE INTO THE ENVIRONMENT. SECTION 104(E) PROVIDES THAT EPA MAY HAVE ACCESS TO ANY PROPERTY WHERE A HAZARDOUS SUBSTANCE HAS BEEN RELEASED (104(E)3(B), OR ANY PROPERTY WHERE ENTRY IS NEEDED TO EFFECTUATE A RESPONSE ACTION UNDER CERCLA 104(E)(3)(D).) THE FACTS UPON WHICH THE PROPOSED ACTION IS BASED ARE IN THE DRAFT COMPLAINT FOR THE ACTION BEING PREPARED BY THE CASE TEAM. PERTINENT FACTS INCLUDE THE FOLLLOWING: A. ON APRIL 6, 1990, EPA ISSUED A RECORD OF DECISION (ROD) SELECTING A REMEDY FOR THE HOT SPOT OPERABLE UNIT OF THE SITE TO ADDRESS THE RELEASE OR THREATENED RELEASE OF HAZARD- OUS SUBSTANCES, INCLUDING PCB'S, AT THE SITE. THE ROD REMEDY INCLUDES TREATMENT OF DEWATERED SEDIMENTS BY INCINERATION. B. IN APRIL 1992, EPA ISSUED AN EXPLANTION OF SIGNIFICANT DIFFERENCES WHICH SPECIFIES THE METHOD FOR FINAL DISPOSAL OF INCINCERATOR ASH IN THE REMEDIDAL ACTION. C. THE CITY OWNS OR CONTROLS ACCESS TO PROPERTIES NEEDED TO EFFECTUATE THE RESPONSE ACTION. D. ON JULY 29, 1993, THE CITY ORDINANCE (SECTION 15-70 OF THE CITY CODE) DESCRIBED ABOVE IN PARAGRAPH 1 WENT INTO EFFECT. E. ON OR BEFORE AUGUST 20, 1993, THE U.S. ARMY CORPS OF ENGINEERS WAS ADVISED THAT THE NEW BEDFORD CITY COUNCIL HAD DENIED COMMONWEALTH ELECTRIC COMPANY'S APPLICATION FOR A STREET OPENING PERMIT TO PROVIDE ADDITIONAL ELECTRICAL POWER NECESSARY TO EFFECTUATE THE RESPONSE ACTION. F. ON SEPTEMBER 1, SEPTEMBER 3, AND SEPTEMBER 9, 1993, EPA REQUESTED ACCESS TO CITY PROPERTY TO IMPLEMENT THE RESPONSE ACTIONS. G. ON SEPTEMBER 10, 1993, EPA ISSUED AN ADMINISTRATIVE ORDER FOR ACCESS TO THE CITY UNDER 104(E) OF CERCLA. H. ON SEPTEMBER 13, 1993, THE CITY RESPONDED TO THE ADMIN- ISTRATIVE ORDER, AND DID NOT GRANT ACCESS TO THE PRPOPERTIES SOUGHT BY EPA. I. DURING ANY DELAY IN IMPLEMENTATION OF THE REMEDIAL ACTION PCB'S WILL CONTINUE TO SPREAD TO AND FROM THE HOT SPOT INTO THE SURROUNDING AIR AND WATER. EVIDENCE INDICATES THAT THE HOT SPOT IS A SOURCE OF PCB'S FOUND IN THE AIR AT THE SITE. ALSO, EACH DAY THAT THE HOT SPOT REMAINS UNREMEDI- ATED, APPROXIMATELY TWO POUNDS OF PCBS MIGRATES FROM THE ESTUARY, TO THE HARBOR INTO BUZZARDS BAY. THE NATURE OF THE VIOLATIONS IS AS FOLLOWS: VIOLATIONS OF SECTION 104(E) OF CERCLA, FOR INTER

Defendants (1)

• CITY OF NEW BEDFORDNamed in complaint

Facilities (1)

• NEW BEDFORD

  ACUSHNET ESTUARY, NEW BEDFORD, MA, 02740

  Registry ID: 110009290169

Statutes cited

• CERCLA 104E5A — Superfund

Timeline (5 milestones)

• 1993-09-07Enforcement Action Data Entered
• 1993-09-17Referred To Dept Of Justice
• 1993-09-23Complaint Filed With Court
• 1993-10-13Concluded
• 1993-10-13Enforcement Action Closed