EPA v. NEW HAMPSHIRE BALL BEARINGS INC. (SOUTH MUNI WATER SUPPLY)

Case summary

THE REFERRAL RECOMMENDED FILING A COST RECOVERY ACTION PURSUANT TO SECTION 107 OF CERCLA FOR APPROXIMATELY $1.2 MILLION IN PAST COSTS AND FOR ALL FUTURE COSTS FOR THE SOUTH MUNICIPAL WELL SUPERFUND SITE IN PETERBOROUGH, NEW HAMPSHIRE. THE PROPOSED DEFENDANT IS NEW HAMPSHIRE BALL BEARINGS, INC. ( NHBB ), A SUBSIDIARY OF MINEBEA CO., LTD OF JAPAN. ENFORCEMENT HISTORY: THE SOUTH MUNICIPAL WELL WAS INSTALLED IN 1952. IN 1982 NEW HAMPSHIRE WATER SUPPLY AND POLLUTION CONTROL COMMISSION ( NHWSPCC ) SAMPLING SHOWED THE PRESENCE OF VOCS. AT THE RECOMMENDATION OF THE EPA AND NHWSPCC, THE TOWN THEN DISCONTINUED USE OF THE WELL. IN MAY 1983, THE SOUTH WELL SITE WAS LISTED ON THE NPL. IN 1984 AND 1985, THE STATE CONDUCTED A HYDROGEOLOGIC INVESTIGATION TO CHARACTER- IZE THE AQUIFER SUPPLYING GROUNDWATER TO THE SOUTH WELL. ON JULY 26, 1986, NHBB ENTERED INTO AN ADMINISTRATIVE ORDER BY CONSENT TO CONDUCT THE RI/FS. NHBB COMPLETED THE RI/FS IN JULY, 1989 AND ITS RESULTS DEMONSTRATED THAT NHBB'S OPERATING AND WASTE DISPOSAL PRACTICES WERE RESPONSIBLE FOR THE CONTAMINATION AT THE SITE. ON SEPTEMBER 27, 1989, EPA ISSUED A ROD FOR THE SITE. THE SELECTED REMEDY IS COMPRISED OF SIX COMPONENTS, INCLUDING: 1. GROUNDWATER PUMP-AND-TREAT USING AIR STRIPPING WITH EMISSIONS CONTROLS FOR VOCS; 2. IN SITU VACUUM EXTRACTION FOR CONTAMINATED SOILS; 3. EXCAVATION AND/OR DREDGING OF SEDIMENTS CONTAMINATED WITH PAHS AND PCBS WITH OFF-SITE DISPOSAL; 4. RESTORATION OF WETLANDS AFFECTED BY SEDIMENT REMEDIATION; 5. LONG-TERM MONITORING; AND 6. INSTITUTIONAL CONTROLS. THE PRPS ARE IMPLEMENTING THE REMEDY UNDER A UAO. A SUBSEQUENT ESD CALL FOR NO AIR STRIPPING. EPA ISSUED A GENERAL NOTICE LETTER TO NHBB ON JANUARY 30, 1985. ON MARCH 5, 1985, MINEBIA PURCHASED 100% OF THE OUT- STANDING SHARES OF NHBB STOCK AND THEN ASSIGNED THE INTEREST TO NMB (USA),A HOLDING COMPANY AND WHOLLY-OWNED SUBSIDIARY OF MINEBEA. ON SEPTEMBER 12, 1985, EPA SENT A GENERAL NOTICE LETTER TO MINEBEA IN JAPAN, THE OWNER OF NMB. IN A RESPONSE DATED SEPTEMBER 26, 1985, MINEBEA CLAIMED NO REPONSIBILITY FOR THE LIABILITIES OF NHBB AND CLAIMED NO CONTROL OVER DECISIONS MADE BY NHBB. SIGNIFICANT ISSUE OF OVERSIGHT COSTS: A SUBSTANTIAL PORTION OF THE PAST COSTS AND ALL OF THE FUTURE COSTS ARE BEING SOUGHT THROUGH THIS REFERRAL ARE FOR EPA'S OVERSIGHT OF THE PRPS' PERFORMANCE OF THE RI/FS UNDER AN ADMINISTRATIVE ORDER BY CONSENT AND THE PRPS' PERFORMANCE OF THE RD/RA UNDER A UAO. NHBB RECEIVED AN OVERSIGHT BILL DATED OCTOBER 11, 1991 FOR $124,000.37 WHICH THEY HAVE NOT PAID. OF THESE TOTAL COSTS BEILNG SOUGHT, APPROXIMATELY $460,000 ARE PAST COSTS FOR PREPARATION OF AN EPA WORK PLAN FOR THE RI/FS AND FOR EPA'S OVERSIGHT OF THE PRP'S PERFORMANCE OF THE RI/FS, WHICH COSTS ARE SPECIFICALLY RECOVERABLE IN SECTION 104(A) OF CERCLA, 42 U.S.C. SECTION 9604(A). WITH RESPECT TO THE RECOVERY OF THE REMAINDER OF THE COSTS RELATED TO OVERSEEING THE PRPS' PERFORMANCE OF THE RD/RA, THE PRP'S ARGUMENT IS THAT THE STATUTE AND CASE LAW DO NOT ALLOW SUCH RECOVERY. IN PARTICULAR, THE PRPS WILL CITE THE THIRD CIRCUIT COURT OF APPEALS' RECENT DECISION IN UNITED STATES OF AMERICA VS. ROHM AND HAAS CO., ET AL. (3RD CIR. AUGUST 12, 1993) WHICH MAY LIMIT EPA'S ABILITY TO RECOVER OVERSIGHT COSTS FOR A PRIVATE PARTY'S CONDUCT OF THE RD/RA AT A SITE PURSUANT TO A SECTION 106 UAO. THE THIRD CIRCUIT'S RULING CONCERNED THE UNITED STATES' ATTEMPT TO RECOVER FOR THE COSTS OF OVERSEEING A PRIVATE PARTY'S CLEANUP FOR A REMOVAL ACTION, WHICH THE COURT FOUND COULD NOT BE DONE UNDER CERCLA. IT IS UNCLEAR, HOWEVER, IF THIS RULING WOULD APPLY TO COSTS INCURRED IN OVERSEEING THE IMPLEMENTATION OF RD/RA BY A PRIVATE PARTY.

Defendants (2)

• MINEBEA LTDNamed in complaintNamed in settlement
• NEW HAMPSHIRE BALL BEARINGS INCNamed in complaintNamed in settlement

Facilities (1)

• SOUTH MUNICIPAL WATER SUPPLY WELL

  RT. 202, PETERBOROUGH, NH, 03458

  Registry ID: 110009348740

Statutes cited

• CERCLA 107A — Cost Recovery

Enforcement conclusions (1)

• NEW HAMPSHIRE BALL BEARINGS INCentered 1997-10-10

  Primary law: CERCLA

Timeline (6 milestones)

• 1993-08-01Enforcement Action Data Entered
• 1993-12-17Referred To Dept Of Justice
• 1997-07-02Complaint Filed With Court
• 1997-07-21Final Order Lodged
• 1997-10-10Final Order Entered
• 1997-10-16Concluded