EPA v. CAPE CHEM CORPORATION_DBA ERIE CHEMICAL SALES

Case summary

RECOMMENDATION OF FILING OF A COST RECOVERY ACTION UNDER CERCLA 107A AGAINST ONE DEFENDANT FOR APPROXIMATELY $105,000 OUT OF APPROXIMATELY $372,000 IN PAST COSTS INCURRED BY EPA FOR A REMOVAL ACTION AT PAYNE CUTLERY SUPERFUND SITE IN NEW BEDFORD, MA. IF A COMPLAINT IS NOT FILED BY JUNE 26, 1997 THE UNITED STATES RUNS THE RISK OF RECOVERY OF PAST COSTS BEING BARRED BY A STATUTE OF LIMITA- TIONS. THE PROPOSED DEFENDANT IS CAPE CHEM CORPORATION, DBA ERIE CHEMICAL SALES, WHO IS THE ONE REMAINING VIABLE PRP. THE SITE WAS ESSENTIALLY AN UNSAFE WAREHOUSE BUILDING IN WHICH INCOMPATIBLE DETERIORATING AND DAMAGED DRUMS AND PACKAGES CONTAINING HAZARDOUS SUBSTANCES WERE STORED. AFTER AN INITIAL SITE INVESTIGATION, AN ACTION MEMORANDUM WAS SIGNED BY THE REGIONAL ADMINISTRATOR ON DECEMBER 9, 1992. LATER, ON DECEMBER 21, 1992 THE RA SIGNED THE UNILATERAL ADMINISTRATIVE ORDER COMPELLING FIVE PARTIES, INCLUDING THE PROPOSED DEFENDANT, TO PERFORM REMOVAL ACTIVITIES. AFTER ERIE AGREED TO COMPLY WITH THE UAO WHILE THE OTHER PARTIES CLAIMED AN INABILITY TO FINANCE THE REMOVAL, THE RESPONSE ACTION WAS CONDUCTED IN TWO PHASES. PHASE I WAS AN EPA-LEAD REMOVAL OF ALL THE HAZARDOUS SUBSTANCES NOT ASSOCIATED WITH ERIE. PHASE II WAS A PRP-LEAD ACTION BY ERIE WITH EPA OVERSIGHT. IN PERFORMING THE CLEANUP OF THE REMOVAL, THE PROPOSED DEFENDANT'S CONDUCT--INCLUDING ITS FAILURE TO PROPERLY RETAIN A COMPETENT SITE SUPERVISOR CONTRACTOR, ITS RELUCTANCE TO FULLY UTILIZED THIS SITE SUPERVISOR/CONTRACTOR, ITS LACK OF FAMILIARITY WITH INDUSTRY PRACTICES FOR DISPOSAL OF HAZARDOUS WASTE, AND MORE IMPOR- TANTLY, ITS FAILURE TO COMPLY IWTH THE UAO ON SEVERAL OCCASIONS--NECESSITATED CLOSER MONITORING, LED TO DELAYS IN THE REMOVAL SCHEDULE, AND RESULTED IN INCREASED EPA COSTS. IN SETTLEMENT NEGOTIATIONS, ERIE CLAIMED AN INABILITY TO PAY ITS SHARE OF THE TOTAL RESPONSE COSTS. AFTER REVIEWING THE FINANCIAL RECORDS SUPPLIED BY ERIE, THE REGION CONCLUDED THAT ERIE HAS THE ABILITY TO PAY A ONE-TIME PAYMENT OF $50,000. ERIE HAS CONTINUED TO ARGUE, UNCONVINCINGLY, HOWEVER, THAT ITS FINANCIAL CONDITION PERMITS IT TO PAY ONLY $10,000. THE REGION HAS GIVEN ERIE AMPLE OPPORTUNITY TO PROVIDE DOCUMENTATION OF ITS SUPPOSED FINANCIAL HARDSHIP, BUT HAS NOT RECEIVED ANYTHING OF SIGNIFICANCE.

Defendants (5)

• A-1 STORAGE, INC.Named in settlement
• JOSEPH F. OLIVEIRA, JR.Named in settlement
• MICHAEL BEARONNamed in settlement
• NU-TRAFFIC CONCEPTS, INC.Named in settlement
• PAYNE CUTLERYNamed in settlement

Facilities (1)

• PAYNE CUTLERY CORPORATION

  295 PHILLIPS AVE., NEW BEDFORD, MA, 02746

  Registry ID: 110030942568

Statutes cited

• CERCLA 107A — Cost Recovery

Enforcement conclusions (1)

• CAPE CHEM CORPORATION (PAYNE'S CUTLERY)entered 1999-11-08

  Primary law: CERCLA

Timeline (6 milestones)

• 1997-06-03Referred To Dept Of Justice
• 1997-08-15Complaint Filed With Court
• 1997-08-15Enforcement Action Data Entered
• 1999-08-30Final Order Lodged
• 1999-11-08Final Order Entered
• 1999-11-08Concluded