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UNITED STATES v. ROHM & HAAS CO.

April 24, 1992

UNITED STATES OF AMERICA
v.
ROHM AND HAAS COMPANY, ROHM AND HAAS DELAWARE VALLEY INC., CHEMICAL PROPERTIES, INC. and BRISTOL TOWNSHIP AUTHORITY



The opinion of the court was delivered by: EDMUND V. LUDWIG

 Ludwig, J.

 April 24, 1992

 This is a declaratory judgment action under § 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9607(a), to recover EPA oversight costs incurred in substantial part prior to an administrative consent order entered into under the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.1 Jurisdiction is federal question. 42 U.S.C. § 9613(b); 28 U.S.C. §§ 1331, 1345. On August 5, 1991, a bench trial was held in which the sole fact issue concerned whether the settlement embodied in the administrative consent order constitutes a bar to this action.

 I.

 The following facts are part of a pretrial stipulation that comprises most of the fact record for this decision:

 1. The Rohm and Haas Landfill Site is an inactive industrial landfill consisting of approximately 120 acres in Bristol Township, Bucks County, Pennsylvania, next to the Delaware River.

 2. Rohm and Haas Company, Inc. ("Rohm and Haas") is a specialty chemicals company. Rohm and Haas Delaware Valley, Inc. ("Rohm and Haas DVI") is a wholly owned subsidiary of Rohm and Haas.

 3. Between 1917 and 1978, Rohm and Haas owned and operated the Site except as set forth in paragraphs 5 and 6.

 4. From 1917 until 1975, Rohm and Haas operated the landfill primarily for the disposal of general refuse, damaged containers, process wastes, and offgrade products generated by Rohm and Haas' two plastics and chemical manufacturing plants adjacent to the Site and by community "clean up/fix-up campaigns."

 5. In 1963, Rohm and Haas sold 14.5 acres of the Site to the Bristol Township Authority ("BTA").

 6. In 1968 and in 1971, Rohm and Haas sold a total of 10.94 acres of the Site to Chemical Leasing Corporation, now known as Chemical Properties, Inc. (together referred to as "Chemical Properties").

 7. In 1969, Chemical Properties obtained soil boring logs for its portion of the Site. Two of the borings indicated "chemical waste." Chemical Properties did no chemical analysis of the borings.

 8. After 1970, a tank-truck hauling facility operated at Chemical Properties' portion of the Site which included dispatching, limited maintenance and, during some periods, cleaning tank trucks.

 9. In 1978, Rohm and Haas transferred the Site to Rohm and Haas DVI. Since 1978, Rohm and Haas DVI has owned and operated the Site except as set forth in paragraphs 5 and 6.

 10. The Site first came to the attention of the Environmental Protection Agency ("EPA") in 1979 when Rohm and Haas reported to a congressional subcommittee that it had disposed of wastes at the Site.

 11. EPA placed the Site on the "Potential Hazardous Waste Site Log" on April 15, 1980.

 12. On June 4, 1981, Rohm and Haas DVI submitted a Notification of Hazardous Waste Site to EPA stating that Rohm and Haas DVI had disposed of approximately 309,000 tons of waste at the Site, including approximately 750 55-gallon drums of research laboratory wastes. According to Rohm and Haas DVI, 4,600 tons of this drummed liquid waste consisted of hazardous substances as defined by section 101(4) of CERCLA, 42 U.S.C. § 9601(14), including an estimated 1,600 tons of flammable solvents carrying water insoluble polymers. Rohm and Haas DVI also stated that it had smashed some containers of research laboratory wastes and mixed the contents in the landfill with an acrylic emulsion.

 13. Rohm and Haas DVI hired BCM Eastern Inc. ("BCM"), an environmental consulting firm, to study and sample the environmental conditions at the Site in 1983, including those portions of the Site owned by BTA and Chemical Properties.

 14. Since 1979, EPA has sampled and analyzed the substances at the Site and monitored, assessed, and evaluated the activities of Rohm and Haas DVI and BCM at the Site.

 15. Numerous hazardous substances have been found at the Site. The presence of approximately thirty CERCLA hazardous substances have been confirmed in groundwater monitoring wells; *fn2" and ammonia, which is also a CERCLA hazardous substance, has been found in the portion of Hog Run Creek running through the Site.

 16. Air samples, collected directly above the landfill surface, contained concentrations of ethyl acrylate, benzene, toluene, methyl ethyl ketone, methyl acrylate, and xylene, which are hazardous substances within the meaning of section 101(14) of CERCLA, 42 U.S.A. § 9601(14).

 17. In 1986, BCM investigated Chemical Properties' portion of the Site. Through tests which included visual inspections and thirty-eight soil borings, BCM found in the subsurface of the soil on Chemical Properties' portion of the Site detectable levels of phenols, cyanide, chromium, lead, toluene, 1,3-dichloroethylene, 1,2-dichloroethylene, chlorobenzene and ethylbenzene.

 18. Benzene toluene, trichloroethylene, trans-1,2-dichloroethylene, formaldehyde, and 2,4-dimethylphenol were detected in subsurface waste samples from BTA's portion of the Site.

 19. On April 10, 1985, EPA proposed to add the Site to the National Priorities List ("NPL"). 50 Fed. Reg. 14115, 14121, (1985).

 20. On August 28, 1986, EPA sent Rohm and Haas DVI a draft consent order under Section 106 of CERCLA, 42 U.S.C. § 9606, requesting that Rohm and Haas DVI conduct, inter alia, a remedial investigation/feasibility study ("RI/FS") at the Site. Rohm and Haas DVI did not sign this consent order. See Exhibit A.

 21. EPA continued to monitor the work of Rohm and Haas DVI at the Site, including its preparation of a cleanup investigation.

 22. From October 31, 1986 through July of 1987, EPA monitored Rohm and Haas' removal of approximately 11,700 cubic yards of waste and soil from the BTA's portion of the Site which contained hazardous substances.

 23. To promote private performance and payment of cleanups of hazardous substances, and to preserve Superfund monies for sites where private sources of payment are unavailable, EPA promulgated a policy whereby facilities, which are subject to both CERCLA and the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901 et seq. are managed under RCRA and not listed on the NPL, except where the owner or operator of the facility is bankrupt or has demonstrated an unwillingness to undertake corrective action. See EPA, RCRA/NPL Listing Policy, 51 Fed. Reg. 21054, 21057-59 (1986).

 24. Thereafter, consistent with the RCRA/NPL Listing Policy and given Rohm and Haas DVI's willingness to negotiate to take corrective action to investigate further and clean up the Site and to pay for that cleanup, EPA decided to manage the Site under RCRA. On February 4, 1987, EPA informed Rohm and Haas DVI that it had decided to manage the Site under RCRA, that new personnel from EPA Region III's Office of RCRA Programs would be assigned, and that CERCLA project officer Jack Kelly would continue to work on the Site. EPA proposed to delete the Site from the proposed NPL on June 24, 1988, 53 Fed. Reg. 23978, 23984 (1988).

 25. EPA removed the Site from the proposed NPL on October 4, 1989. See 54 Fed. Reg. 41000, 41012 (1989).

 26. One administrative entity within EPA Region III, the Hazardous Waste Management Division and its sole director, oversees both EPA Region III's Office of RCRA Programs and its Office of CERCLA Programs.

 27. EPA Region III, through its Office of RCRA Programs, continues to monitor, assess and evaluate the release and threat of release of hazardous substances and Rohm and Haas DVI's activities at the Site.

 28. On February 6, 1989, Rohm and Haas DVI and EPA entered into an Administrative Order on Consent under § 3008(h) of RCRA, 42 U.S.A. § 6928(h), ("Bristol Consent Order" or "ACO"). See Exhibit B. Under the ACO, Rohm and Haas DVI agreed to, inter alia, perform a Facility Investigation ("FI"), an evaluation of the nature and extent of any release of hazardous wastes from the Site, and a Corrective Measures Study ("CMS"), which is designed to develop and evaluate alternative cleanup remedies at the Site. Rohm and Haas DVI agreed to perform these tasks on all portions of the Site including those portions owned by Chemical Properties and BTA.

 29. Rohm and Haas DVI completed and submitted to EPA for review an investigation report, entitled "Remedial Investigation," and the Corrective Measures Study ("CMS"). EPA is reviewing this CMS.

 30. Rohm and Haas' landfilling of wastes on Chemical Properties' portion of the Site occurred prior to Chemical Properties' purchase.

 31. As of June 18, 1991, EPA has incurred a total of $ 379,063.45 at the Site. Of these costs, EPA spent $ 252,352.89 for contractors including sampling support and field investigation. The balance of $ 126,710.56 represents EPA's payroll, indirect, and travel costs. Of these costs, $ 83,351.80 are indirect costs. EPA's payroll costs include the costs of negotiation of one consent order, costs of review of all work performed by Rohm and Haas DVI's contractors and EPA's contractors as well as enforcement including litigation costs.

 32. As of March 31, 1991, the Department of Justice, including the Environment and Natural Resources Division and the United States attorney's Office for the Eastern district of Pennsylvania, has incurred $ ...


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