EPA v. ASHLAND/NORTHERN STATES POWER LAKEFRONT CONSENT DECREE (CERCLA)

Case summary

The proposed Consent Decree, concerning the Ashland/Northern States Power Lakefront Superfund Site ( Site ) in Ashland, Wisconsin, is to implement the Remedial Design and Remedial Action ( RD/RA ) to address the release of hazardous substances for certain areas of the Site. Soil, sediment, and groundwater at the Site are contaminated by polycyclic aromatic hydrocarbons ( PAHs ) and volatile organic compounds ( VOCs ). The Northern States Power Company ( NSP ) is liable under Section 107(a) of CERCLA as the successor to the former owner and operator of a manufactured gas plant that released the hazardous substances at the Site, and as the current owner of a portion of the Site where the manufactured gas plant was located. In addition to the former gas plant that sits on top of a bluff, the Site consists of (i) a portion of Kreher Park, a City-owned property fronting Chequamegon Bay of Lake Superior that includes a former municipal waste water treatment plant; (ii) an inlet of Chequamegon Bay that is part of Lake Superior; (iii) a railroad right-of-way owned by the Wisconsin Central Ltd., and formerly owned by the Soo Line Railroad; and (iv) Our Lady of the Lake Church/School, as well as private residences. EPA is the lead agency for this Site and the Wisconsin Department of Natural Resources ( WDNR ) is the support agency. This Site is listed on the National Priorities List. Under the proposed Consent Decree, NSP would perform the RD/RA pursuant to the ROD. The work required by the proposed Consent Decree is valued at approximately $40 million. In addition, NSP would pay EPA's costs of overseeing that work that exceed $1.5 million, and settle natural resource damage claims associated with the Site with the federal, state and tribal trustees. The Consent Decree requires NSP to perform the RD/RA for the upland areas of the Site ( the Phase 1 Project Ai-ea ). The Phase 1 Project Area includes the entire Site excluding the contaminated sediments in Chequamegon Bay. Although the Ashland Site is not broken into operable units, EPA agreed to negotiate a Consent Decree that excludes the bay because the remedy for the upland areas of the Site must occur first to provide source control to the bay and because NSP and EPA have a fundamental disagreement over the best remedial alterative to remove contaminated sediments from the bay. That disagreement proved to be a significant obstacle to reaching a settlement for the entire Site. The RD/RA includes the final remedy selected by the ROD for the Phase 1 Project Area including contaminated soil and groundwater in the park, the property owned by NSP, as well as contaminated groundwater in a deep aquifer. In exchange for the commitment to perform the RD/RA for the Phase 1 Project Area, NSP will receive contribution protection under Section 113 of CERCLA, and a covenant not to sue from the United States for the Phase 1 Project Area and for future oversight costs up to $1.5 million. The covenant not to sue by the United States excludes the sediment contamination in Chequamegon Bay and EPA's approximately $1.3 million in past costs. The contaminated sediments and EPA's past costs will have to be addressed as part of a second Consent Decree or in a subsequent enforcement action. The Consent Decree also includes a natural resources settlement to resolve the claims of the natural resource trustees (i.e., the United States, State of Wisconsin, and the Bad River and Red Cliff Bands of the Lake Superior Tribe of Chippewa Indians) against NSP for natural resource damages for the entire Site.

Defendants (1)

• Norther States Power Company - WisconsinNamed in complaintNamed in settlement

Facilities (1)

• ASHLAND/NORTHERN STATES POWER LAKEFRONT

  300 ST. CLAIRE ST., ASHLAND, WI, 54806

  Registry ID: 110009319558

Statutes cited

• CERCLA 104E2 — Information and/or Access
• CERCLA 107A — Cost Recovery
• CERCLA 122A — Agreement to Perform Work Under 104B
• CERCLA 106A — Imminent & Substantial Endangerment Order

Enforcement conclusions (1)

• ASHLAND/NORTHERN STATES POWER LAKEFRONT CONSENT DECREE (CERCLA)entered 2012-10-18

  Primary law: CERCLA

Timeline (5 milestones)

• 2012-04-05Enforcement Action Data Entered
• 2012-07-11Referred To Dept Of Justice
• 2012-08-08Complaint Filed With Court
• 2012-08-08Final Order Lodged
• 2012-10-18Final Order Entered