EPA v. Lehigh Valley Railroad Company

Case summary

The Administrative Order directs Respondent to implement part of a remedial action (RA) at the Lehigh Valley Railroad Derailment Superfund Site located in near the Town of LeRoy, New York, Genesee, Monroe and Livingston Counties. The Site includes the location of a TCE chemical spill (~30,000 gallons) caused by a 1970 train derailment and the resulting contaminated groundwater plume; the groundwater plume is approximately 4 miles long. The Site is on the NPL. Under the Order, the Respondent is being directed to undertake the remedy component related to a soil vapor extraction (SVE) system selected by a March 28, 1997 New York State Record of Decision, which system was later adopted as part of the RA for the Site by EPA, and the remedial design (RD) of which was performed by Respondent pursuant to an Administrative Settlement Agreement and Order on Consent (Settlement Agreement) with EPA. The work is delineated in the Order and in the various EPA-approved plans referred to in the Statement of Work (SOW) attached to the Order. The State’s ROD selected, among other things, ex-situ SVE as a source-control measure. On May 21, 2002, EPA concurred with the source-control measures contained in the ROD. In a November 4, 1991 letter, EPA notified Respondent that it is a potentially responsible party (PRP) for the Site based on its ownership of the railroad right-of-way at the time that the TCE was released there. In its December 20, 1991 response, the Respondent argued that its liability for the Site had been discharged in a bankruptcy proceeding it had commenced in 1970. However, EPA took the position that when the Respondent emerged from bankruptcy its liability for the Site continued, for reasons including that proper notice of the bankruptcy had not been provided to EPA under the bankruptcy rules. As a result, EPA subsequently sought to have the Respondent perform response actions including certain pre-RD investigations, the RD of the SVE system, and an RI/FS for groundwater at the Site. After protracted negotiations on both technical and liability issues, the Respondent agreed to perform those actions in the 2006 Settlement Agreement. The pre-RD investigations have been completed and the RI/FS process is expected to be completed in 2014. A Remedial Design Report for the SVE was approved by EPA on September 27, 2013. The SVE work is valued at approximately $2 million. Following the pre-RD work, EPA began discussions with the Respondent’s counsel regarding implementation of just the SVE component of the ROD in advance of addressing Site groundwater, which is the subject of the RI/FS the Respondent is still performing. After discussions involving the likely SOW for the SVE work, Respondent’s counsel indicated that, while they would not recommend that the Respondent enter into a judicial consent decree to perform the work, Respondent would likely comply with the terms of the an administrative order and implement the specified RA.

Defendants (1)

• Lehigh Valley Railroad CompanyNamed in settlement

Facilities (1)

• LEHIGH VALLEY RAILROAD

  GULF ROAD, LE ROY, NY, 14482

  Registry ID: 110009342808

Statutes cited

• CERCLA 106A — Imminent & Substantial Endangerment Order

Enforcement conclusions (1)

• Lehigh Valley Railroad Companyentered 2014-04-07

  Primary law: CERCLA

Timeline (3 milestones)

• 2014-04-07Final Order Issued
• 2014-04-07Enforcement Action Closed
• 2014-04-08Enforcement Action Data Entered