EPA, Alcan Agree on Large Settlement Over New York State Superfund Site

December 27, 2004

The EPA has reached an agreement with Alcan Aluminum Corporation (Alcan) requiring the company to pay up to $1,760,000 in connection with the Tri-Cities Barrel Superfund site, located in the Town of Fenton, NY.

The agreement is embodied in a consent decree, which was lodged on December 10, 2004 in United States District Court in Albany by the U.S. Department of Justice on behalf of the EPA. Alcan had previously been unwilling to join a settlement between the government and other parties responsible for contamination at the site, which resulted in a cleanup.

The site includes a 15-acre property, of which seven acres were used by the now defunct Tri-Cities Barrel Company for a barrel reconditioning business from the 1950's through 1992. Tri-Cities Barrel Company took in barrels that had been used for industrial chemicals by a large number of companies and cleaned and reconditioned them. Operations at the site and chemical residues in the barrels resulted in contamination of the soils, sediments and ground water. Alcan was among the companies that had barrels reconditioned at the facility.

In August 2001, the federal government settled with companies that agreed to undertake the long-term permanent cleanup of the site under EPA supervision, at a cost then estimated at $20 million. The settling parties recently completed the cleanup of contaminated soils and sediments at the site and they and EPA are now reevaluating the need to actively address the ground water. Alcan did not participate in the cleanup settlement and, in September 2001, EPA ordered Alcan to participate in the cleanup. Alcan did not comply with EPA's order.

The current settlement with Alcan consists of a $360,000 penalty for violating EPA's order, a $600,000 payment for the Agency's past response costs and payments of up to $800,000 for EPA's future costs in connection with the cleanup of pollution at the site. In earlier settlements, EPA received a total of about $1 million from a number of other companies that had each sent only a small amount of chemical barrels to the site. With the Alcan settlement, all 73 financially viable parties that were deemed responsible for the contamination will be contributing to the cost of cleaning up the site.

The proposed settlement is subject to a 30-day public comment period, which will begin shortly, upon the publication of a notice in the Federal Register. In addition, the settlement requires approval by the United States District Court before becoming final.

Effective Date for DOT Rule Postponed

DOT originally published a rule on October 30, 2003 at 68 FR 61905 expanding the scope of training and other requirements for "pre-transport activities." This rule was to have an effective date of October 1, 2004.

On May 28, 2004, at 69 FR 30588, due to an overwhelming number of comments, DOT extended the compliance date to January 1, 2005. As explained in this federal register, this would give the DOT more time to consider the comments and modify the rule as needed to address the points made by industry concerning the rule.

On Wednesday, December 8, 2004, at 69 FR 70902, DOT again delayed the effective date of this rule, now to June 1, 2005.

Nevada Energy Company Fined for Failure to Develop Chemical Risk Management Plan

The EPA settled a case with a Washoe County, NV geothermal energy facility, requiring the company to pay $3,000 for failing to have a plan that outlines how the facility will handle any accidental chemical releases, as required by the Clean Air Act.

Empire Energy, a geothermal facility located in Empire, NV, has already paid the penalty and submitted the plan. The company failed to prepare a risk management plan by June 1999, as required by the EPA. The plan was finally submitted to the EPA last June, four years after the deadline.

As part of a new enforcement policy, the EPA offered Empire a reduced penalty because the company acted quickly to correct the problem and pay the fine, and the facility presents a relatively low risk to the public.

The EPA's regulations require all facilities using extremely hazardous substances above specified threshold quantities to develop risk management plans. Empire had more than 64,000 pounds of isopentane at its facility, which is more than six times the EPA's threshold quantity.

Isopentane, a component of gasoline, is a highly flammable chemical. Isopentane can irritate or burn skin and eyes through inhalation or contact with the skin.

The plan must include an assessment of the potential effects of an accidental release, history of accidents over the past five years, evaluation of worst-case scenarios and employee training. The plan must also include an emergency response program that outlines procedures for informing the public and response agencies, such as the police and fire departments, in the event of an accident.

Empire Energy LLC is part of the Empire group of companies including Empire Research and Empire Farms. The geothermal plant is located south of Empire in the San Emidio Desert approximately 100 miles north of Reno. The facility produces electricity for a geothermal power plant and for an onion and garlic dehydration plant operated by Empire Farms.

DOT Proposal for Safe Food Transportation

RSPA is proposing to address the safe transportation of food and food products in commerce by referencing in its regulations requirements of the U.S. Department of Agriculture and the Food and Drug Administration of the U.S. Department of Health and Human Services that apply to persons who offer for transportation or transport food in commerce by motor vehicle or rail car. This action is intended to implement the Sanitary Food Transportation Act of 1990.

Significant Changes to DOT Regulations as Agency Adopts International Standards

DOTÆs Research and Special Programs Administration (RSPA) is amending the Hazardous Materials Regulations (HMR) to maintain alignment with international standards, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations and vessel stowage requirements. Because of recent changes to the International Maritime Dangerous Goods Code (IMDG Code), the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions) and the United Nations Recommendations on the Transport of Dangerous Goods (UN Recommendations), these revisions are being adopted to facilitate the transport of hazardous materials in international commerce.

Some of the significant changes include:

  • Amendments to the Hazardous Materials Table (HMT) which add, revise or remove several proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, bulk packaging requirements, passenger and cargo aircraft maximum quantity limitations and vessel stowage provisions
  • Amendments to the List of Marine Pollutants
  • Revisions and additions of special provisions
  • Removal of the air eligibility marking requirement
  • Addition of a "KEEP AWAY FROM HEAT'' marking requirement for packages offered for transportation by air
  • Amendment to require that aerosols that are carried aboard an aircraft in accordance with 49 CFR 175.10(a)(4) have their release devices protected by a cap or other suitable means
  • A grandfather provision to allow the shipment of materials classified as corrosive to steel or aluminum under ASTM G 31-72
  • A provision to require that the word "overpack" be marked on overpacks to indicate that inside packages comply with prescribed specifications
  • An amendment to the criteria for classification of materials that are corrosive to metals
  • Revision of the limited quantity provisions for Class 6.1, PG II materials and for materials with a subsidiary hazard of 6.1, PG II
  • Amendments to the packaging requirements for materials classified as Division 6.1, Packing Group I, Hazard Zone A or Hazard Zone B
  • Revision of the organic peroxide packaging requirements in order to have one consolidated packaging section for organic peroxides. The revised section will include three separate tables for organic peroxides authorized for transport in non-bulk packagings, IBCs, and bulk packagings other than IBCs, respectively. Additionally, the packaging tables will be updated through the amendments to the organic peroxide requirements that will add, revise, or delete certain entries in the organic peroxide tables.
  • The effective date of these amendments is January 1, 2005. Unless otherwise specified in the regulations, compliance with the amendments adopted in this final rule is mandatory beginning January 1, 2006. Learn more about the rule in Environmental Resource CenterÆs DOT Hazardous Materials training, or in our new Focus on Hazmat course.

    Lithium Batteries Banned on Passenger Aircraft

    RSPA published an interim final rule prohibiting the transport of primary (non-rechargeable) lithium batteries and cells as cargo on passenger-carrying aircraft. Equipment containing or packed with large primary lithium batteries is also prohibited. These restrictions are included in three new special provisions being added in the Hazardous Materials Table for lithium battery entries.

    Lithium batteries and cells shipped in compliance with one of the exceptions in 49 CFR 173.185 are not subject to the remainder of the Hazardous Material Regulations. Because of this, the interim final rule also amended those exceptions in 49 CFR 173.185 by adding an additional requirement to mark excepted packages of primary lithium batteries with the text, "PRIMARY LITHIUM BATTERIES - FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT." This requirement applies to excepted packages being shipped by all modes of transportation.

    RSPA and the Federal Aviation Association are still evaluating the risks of shipping secondary (rechargeable) lithium batteries and cells. This rule does not apply to the shipment of equipment that contains or is packed with small primary lithium batteries or to the shipment of secondary (rechargeable) lithium batteries (e.g., lithium ion batteries), nor does it affect the transportation of lithium batteries in a passenger's luggage. The effective date for this rule is December 29, 2004 and comments concerning it must be submitted to RSPA by February 14, 2005.

    $80,000 Fine for Form R Violation

    EPA fined an Arizona mining company $80,000 for allegedly failing to report on its Form R the correct amount of toxic chemicals released at its Hayden, AZ facility, a violation of the federal Emergency Planning and Community Right-to-Know Act.

    ASARCO Inc. failed to submit complete and correct toxic chemical release inventory reporting forms for manganese released in 1998 and 1999 and for chromium, nickel compounds, cadmium compounds and lead compounds released in 1998. The fine to be paid by ASARCO Inc. will resolve an administrative complaint that EPA Region 9 filed in September.

    The violations were discovered as a result of an investigation by the National Enforcement Investigations Center, a division of the EPA's Office of Enforcement and Compliance Assurance. The review was performed after the community expressed concern about the validity of the company's reported releases.

    Federal law requires certain facilities using chemicals over certain amounts to file annual Form R reports of chemical releases with the EPA and the state. The reports estimate the amounts of each toxic chemical released to the environment, treated or recycled on-site, or transferred off-site for waste management. The information is then compiled into a national database and made available to the public.

    Each year, the EPA publishes a report entitled the Toxic Release Inventory Public Data Release reports. The report summarizes the previous year's submissions and provides trend analyses of toxic chemical releases.

    Now is the time to begin working on your CY 2004 Form R. To learn how to complete your Form R, Form A, and Tier II reports in accordance with SARA Title III (the Emergency Planning and Community Right to Know Act, or EPCRA), attend one of Environmental Resource CenterÆs SARA Seminars, held nationwide in 2005.