EPA v. PERFORMANCE ADVANTAGE SUPERFUND SITE

Case summary

7/14/11 - REFERRAL SENT TO DOJ. 8/29/2011 - DOJ FILED A COMPLAINT AGAINST FMC CORP IN THE U.S. DISTRICT COURT, MDAL, NORTHERN DIVISION. THE COMPLAINT SEEKS A DECLARATORY JUDGMENT AND RECOVERY OF APPROX $1.9 MILLION FOR THE EPA'S REMOVAL COSTS INCURRED DURING EMERGENCY AND TIME-CRITICAL REMOVAL ACTIONS CONDUCTED AT THE SITE IN 2005 AND 2007. THE SITE IS THE LOCATION OF AN ABANDONED OIL RECLAMATION FACILITY THAT PERFORMANCE ADVANTAGE, INC., OPERATED FROM THE LATE 1970s TO THE LATE 1980s OR EARLY 1990s. HAZARDOUS SUBSTANCES FOUND AT THE SITE CONTAINED TOTAL HALOGENS IN EXCESS OF 1,000 PPM. USED OIL CONTAINED TOTAL HALOGENS IN EXCESS OF 1,000 PPM IS A HAZARDOUS SUBSTANCE PURSUANT TO CERCLA 101(14). THE COMPLAINT ALLEGES THAT FMC, AN INTERNATIONAL CHEMICAL AGRICULTURAL PRODUCT MANUFACTURING CORPORATION, ARRANGED FOR THE DISPOSAL OR TREATMENT OF WASTE AND/OR USED OIL CONTAINING HAZARDOUS SUBSTANCES AT THE SITE, AND IS THEREFORE LIABLE FOR THE AGENCY'S RESPONSE COSTS PURSUANT TO CERCLA 107(a)(3). IN 1984, EPA SUCCESSFULLY PROSECUTED PERFORMANCE ADVANTAGE INC. (NOW DEFUNCT) AND ITS PRESIDENT, LYNDOL BOLTON (NOW DECEASED) IN A FEDERAL CRIMINAL CASE FOR THE ILLEGAL DISPOSAL AND TRANSPORT OF WASTE DRUMS CONTAINING HAZARDOUS WASTE. IN 2006, EPA RECOVERED $30,000 OF ITS RESPONSE COSTS PURSUANT TO A SETTLEMENT AGREEMENT WITH THE PAST OWNER OF THE SITE, THE W.F. DUNNAM FAMILY TRUST. THE SETTLEMENT AMOUNT WAS BASED ON THE AGENCY AND DOJ'S ABILITY-TO-PAY ANALYSES OF THE TRUST'S ASSETS AT THAT TIME. 5/4/12 - CD ENTERED. DEFENDANT: FMC CORPORATION. SETTLING FEDERAL AGENCIES: U.S. DEPARTMENT OF DEFENSE, SPECIFICALLY INCLUDING, WITHOUT LIMMITATION, THE DEPARTMENT OF THE ARMY, THE ANNISTON ARMY DEPOT, THE UNITED STATES DEFENSE LOGISTICS AGENCY, AND THEIR SUCCESSOR DEPARTMENTS, AGENCIES, OR INSTRUMENTALITIES. PAYMENT BY FMC FOR PAST RESPONSE COSTS - WITHIN 30 DAYS, PAYMENT BY FMC SHALL BE MADE TO DOJ AND EPA IN THE SUM $300,000 PLUS INTEREST. AS SOON AS IS REASONABLY PRACTICABLE, AND AT LEAST WITHIN 120 DAYS, THE U.S. ON BEHALF OF THE SETTLING FEDERAL AGENCIES, SHALL PAY TO EPA $71,000.

Defendants (5)

• ANNISTON ARMY DEPOTNamed in complaintNamed in settlement
• U.S. DEPARTMENT OF THE ARMYNamed in complaintNamed in settlement
• U.S. DEFENSE LOGISTICS AGENCYNamed in complaintNamed in settlement
• FMC CORPORATIONNamed in complaintNamed in settlement
• U.S. DEPARTMENT OF DEFENSENamed in complaintNamed in settlement

Facilities (1)

• PERFORMANCE ADVANTAGE

  PO BOX 157, ROUTE 1 HIGHWAY 29, WEOGUFKA, AL, 35183-0157

  Registry ID: 110071100610

Statutes cited

• CERCLA 107A — Cost Recovery

Enforcement conclusions (1)

• PERFORMANCE ADVANTAGE SUPERFUND SITE (04-2012-C012)entered 2012-05-04

  Primary law: CERCLA

Timeline (5 milestones)

• 2011-07-14Referred To Dept Of Justice
• 2011-07-19Enforcement Action Data Entered
• 2011-08-29Complaint Filed With Court
• 2012-02-21Final Order Lodged
• 2012-05-04Final Order Entered