Hazardous Waste
EPA's Cleanup of the Eagle-Picher Henryetta, Oklahoma, Site Gao ID: GAO-03-1051R September 5, 2003From 1996 to 1997, the U.S. Environmental Protection Agency (EPA) conducted a cleanup action on a former zinc smelter operated by Eagle-Picher Mining and Smelting, Inc. and other areas contaminated by materials from this site near Henryetta, Oklahoma. EPA's cleanup focused on removing the immediate health threat posed by lead- and arsenic-contaminated soil transported from the Eagle-Picher site to residential and other highly accessible areas. Cleanup actions on the Eagle-Picher site involved establishing proper drainage on the site, encapsulating the Eagle-Picher site with clay and cover soil, and establishing vegetative cover at the site to protect nearby residents from the recontamination from wind and water erosion of hazardous materials. Since completion of the cleanup, private landowners of a neighboring property have raised concerns about contamination of their property resulting from EPA's cleanup actions. Landowners allege that EPA, through its contractors, transported and negligently disposed of hazardous substances on their property. The landowners also allege that EPA's actions at the site contributed to the migration of contamination from the Eagle-Picher site onto their property. These landowners are currently pursuing litigation against EPA and the city of Henryetta for damages incurred as a result of the cleanup. EPA asserts that the cleanup met its objectives and successfully removed the immediate threat to human health and the environment. Congress asked us to provide information on (1) the environmental cleanup actions EPA conducted at the Eagle-Picher Henryetta site and (2) the actions EPA has taken in response to neighboring landowners' concerns related to the Eagle-Picher cleanup site.
In August 1996, EPA initiated a removal action on the Eagle-Picher site and other locations throughout Henryetta in accordance with CERCLA. EPA determined that the site, including locations where material from the site was used as fill material in construction, presented an imminent and substantial endangerment to public health and the environment because of lead and arsenic contamination in high-access areas. However, because the site did not affect residential drinking water or a large population, it did not qualify for proposal to EPA's list of the nation's most contaminated sites, called the National Priorities List. EPA placed a ceiling of $8 million on EPA's project cost. According to EPA regional and headquarters officials, EPA responded appropriately to the concerns of the landowners, expressed through correspondence, telephone calls, and requests for information under the Freedom of Information Act between October 2000 and March 2001. EPA referred the October 2000 incident report submitted by the landowners to EPA's National Response Center to the Oklahoma Department of Environmental Quality, which responded by reviewing the landowners' concerns and contacting the landowners to explain that the levels of contamination present did not warrant action by EPA or Oklahoma. EPA responded to the landowners' written requests for information by advising them of the cost to provide documents, and when the cost proved excessive, providing the documents for landowners' counsel to review at EPA's offices. Although EPA took several months to respond to some requests for information, EPA attributes these delays to the time required to retrieve documents placed in storage, review files to locate appropriate documents, and determine a cost estimate for providing the documents directly to the landowners. The landowners disagree that EPA was responsive to their concerns about contamination on their property and assert that EPA's systematic attitude has impeded their efforts to obtain information about the cleanup. The landowners cited unnecessary delays in providing documents and alleged that EPA attempted to hide the truth about cleanup actions.
GAO-03-1051R, Hazardous Waste: EPA's Cleanup of the Eagle-Picher Henryetta, Oklahoma, Site
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Washington, DC 20548:
United States General Accounting Office:
Washington, DC 20548:
September 5, 2003:
The Honorable James M. Inhofe:
Chairman, Committee on Environment and Public Works:
United States Senate:
Subject: Hazardous Waste: EPA's Cleanup of the Eagle-Picher Henryetta,
Oklahoma, Site:
Dear Mr. Chairman:
From 1996 to 1997, the U.S. Environmental Protection Agency (EPA)
conducted a cleanup action on a former zinc smelter operated by Eagle-
Picher Mining and Smelting, Inc. and other areas contaminated by
materials from this site near Henryetta, Oklahoma. EPA's cleanup
focused on removing the immediate health threat posed by lead-and
arsenic-contaminated soil transported from the Eagle-Picher site to
residential and other highly accessible areas. Cleanup actions on the
Eagle-Picher site involved establishing proper drainage on the site,
encapsulating the Eagle-Picher site with clay and cover soil, and
establishing vegetative cover at the site to protect nearby residents
from recontamination from wind and water erosion of hazardous
materials. Since completion of the cleanup, private landowners of a
neighboring property have raised concerns about contamination of their
property resulting from EPA's cleanup actions. Landowners allege that
EPA, through its contractors, transported and negligently disposed of
hazardous substances on their property. The landowners also allege that
EPA's actions at the site contributed to the migration of contamination
from the Eagle-Picher site onto their property. These landowners are
currently pursuing litigation against EPA and the city of Henryetta for
damages incurred as a result of the cleanup. EPA asserts that the
cleanup met its objectives and successfully removed the immediate
threat to human health and the environment.
You asked us to provide information on (1) the environmental cleanup
actions EPA conducted at the Eagle-Picher Henryetta site and (2) the
actions EPA has taken in response to neighboring landowners' concerns
related to the Eagle-Picher cleanup site. To address these objectives,
we reviewed documents on the background of the site, EPA cleanup
activities, and documents provided by private landowners. We also
interviewed officials from EPA headquarters and Region 6 offices, the
Department of Interior's Bureau of Reclamation and its contractor on
the Eagle-Picher cleanup, the Oklahoma Department of Environmental
Quality, a representative of the city of Henryetta, and private
landowners. In addition, we visited the site and neighboring property.
Because
the landowners are currently involved in litigation against EPA and
others related to the site cleanup, we did not assess the sufficiency
or effectiveness of EPA's cleanup or the merits of the landowners'
litigation against EPA. We present the results of the litigation, to
date, but we did not determine the cause of contamination associated
with the cleanup or any liabilities associated with the cleanup. A map
of the Eagle-Picher hazardous waste site and the landowners' property
is included in enclosure I. A detailed narrative chronology of events
related to the Eagle-Picher Henryetta hazardous waste site and legal
issues surrounding litigation against EPA and others is included in
enclosure II.
Background:
From 1916 to 1968, Eagle-Picher Mining and Smelting, Inc. operated a
smelter producing zinc, cadmium, and germanium on a 70-acre property
near Henryetta, Oklahoma. Eagle-Picher received ore from mines in
northeastern Oklahoma and operated a smelter for recovering metals from
the ore. These operations left the site with high concentrations of
arsenic, lead, and zinc in waste primarily located in four piles on the
north and south areas of the site. Eagle-Picher, Inc. ceased operations
on the site in 1968, and donated the property to the city of Henryetta
in 1974. The city of Henryetta took steps to develop the property,
leasing portions of it to industrial facilities, including a coal
mining company that used the site for storage and transportation and
mined the property to the north of the smelter extensively. In
addition, the city used soil from the site as fill material at
locations throughout Henryetta, including residences, schools, and
parks, between 1974 and 1995.
The Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 (CERCLA) established the Superfund program to clean up
highly contaminated hazardous waste sites. CERCLA authorizes EPA to
respond to hazardous substance releases that threaten public health or
welfare or the environment in two general ways: (1) removal actions,
which generally address environmental emergencies and are generally
short-term actions to diminish the threat of a release, or (2) remedial
actions, which are generally permanent cleanups that are more costly
and take longer to complete. CERCLA authorizes EPA to compel parties
responsible for the contamination to clean up the sites; allows EPA to
pay for cleanups, then seek reimbursement from the responsible parties;
and establishes a trust fund to help EPA pay for cleanups and related
program activities. EPA may enter into settlement agreements with
potentially responsible parties (PRPs) that require them to clean up
the site or pay for cleanup. In addition, PRPs may sue to seek
contribution from other PRPs for their response costs incurred during
cleanups.
In 1996, Oklahoma state environmental officials requested assistance
from EPA in addressing contamination on the Eagle-Picher site and other
locations throughout Henryetta. Sampling conducted for EPA indicated
soil taken from the Eagle-Picher site and used as fill in residential
and other highly accessible areas, including areas frequented by
children, was contaminated with lead and arsenic. Specifically, EPA
found contamination at levels presenting health concerns at three
schools, three parks, 93 residential alleys, and 162 residential
properties.
EPA's Cleanup Action Focused on Removing Hazardous Waste from High-
Access Areas and Consolidating and Containing Waste at the Eagle-Picher
Site:
In August 1996, EPA initiated a removal action on the Eagle-Picher site
and other locations throughout Henryetta in accordance with CERCLA. EPA
determined that the site, including locations where material from the
site was used as fill material in construction, presented an imminent
and substantial endangerment to public health and the environment
because of lead and arsenic contamination in high-access areas.
However, because the site did not affect residential drinking water or
a large population, it did not qualify for proposal to EPA's list of
the nation's most contaminated sites, called the National Priorities
List. EPA placed a ceiling of $8 million on EPA's project cost.
Working in partnership with the Oklahoma Department of Environmental
Quality, EPA's removal action focused on excavating contaminated soil
and wastes used as fill material in residential and high-access areas
such as schools and parks, and on addressing residential areas
contaminated by wind or water erosion from the site. The cleanup action
also included moving contaminated material from these locations to the
Eagle-Picher property; consolidating contaminated material present at
the site; and placing a clay cap, cover soil, and vegetation over the
material to protect nearby residents from further contamination. In
January 1997, EPA officials also obtained an agreement granting access
to property to the north of the Eagle-Picher site from the then-current
landowner. This agreement allowed EPA to address contamination in a
pond, located on both properties, which was filled with coal sediments
used by the coal mining company that leased a portion of the Eagle-
Picher site to wash coal after it was mined from the property to the
north. EPA states that it filled this pond with clean soil and
uncontaminated debris such as cement blocks from residential properties
to remove the threat of direct contact with contaminated waste material
in the pond.
EPA completed the majority of its cleanup actions on the site in August
1997, with other drainage work completed in December 1997. On February
4, 1998, EPA notified the Henryetta Economic Development Authority that
all phases of the design and implementation of the cleanup action at
the site were complete and that the site was ready for appropriate
commercial or industrial redevelopment.[Footnote 1] On December 11,
1998, the Oklahoma Department of Environmental Quality sent a similar
letter to the city of Henryetta stating that EPA and the department had
completed a project that identified and buried remaining contamination
from the smelter operation and that no environmental factors precluded
construction and use of the property for industrial or commercial
purposes.
EPA Provided Neighboring Landowners with Documents Related to the
Eagle-Picher Cleanup:
On October 10, 2000, owners of a portion of the property located to the
north of the Eagle-Picher site submitted a hazardous waste release
incident report to EPA's National Response Center. One of four private
citizens co-owning the property reported stepping in water near the
Eagle-Picher property line and later experiencing chemical burns on his
feet. The landowners retained legal counsel on October 17, 2000, and
made a series of Freedom of Information Act requests for documents
relating to the Eagle-Picher removal action from October 2000 through
March 2001. The landowners asserted in communication to EPA that the
removal action failed to eliminate exposure to hazardous substances and
failed to prevent the migration of contaminants through soil erosion
into water pathways. Landowners reported incurring expenses for two
environmental engineering studies, a property survey, laboratory tests
on soil and water samples, telephone calls, travel to EPA Region 6 and
EPA headquarters, and medical expenses.
According to EPA regional and headquarters officials, EPA responded
appropriately to the concerns of the landowners, expressed through
correspondence, telephone calls, and requests for information under the
Freedom of Information Act between October 2000 and March 2001. EPA
referred the October 2000 incident report submitted by the landowners
to EPA's National Response Center to the Oklahoma Department of
Environmental Quality, which responded by reviewing the landowners'
concerns and contacting the landowners to explain that the levels of
contamination present did not warrant action by EPA or Oklahoma. EPA
responded to the landowners' written requests for information by
advising them of the cost to provide documents, and when the cost
proved excessive, providing the documents for landowners' counsel to
review at EPA's offices. Although EPA took several months to respond to
some requests for information, EPA attributes these delays to the time
required to retrieve documents placed in storage, review files to
locate appropriate documents, and determine a cost estimate for
providing the documents directly to the landowners.
The landowners disagree that EPA was responsive to their concerns about
contamination on their property and assert that EPA's systemic attitude
has impeded their efforts to obtain information about the cleanup. The
landowners cited unnecessary delays in providing documents and alleged
that EPA attempted to hide the truth about cleanup actions.
On March 16, 2001, the landowners sued EPA and other parties in federal
district court, seeking among other things to recover cleanup costs
under CERCLA resulting from contamination on their property. The
landowners alleged that a release of hazardous substances from the
Eagle-Picher property caused the contamination and that EPA's cleanup
activities had caused the release. At a February 2002 meeting with
Department of Justice attorneys representing the United States, the
landowners proposed settling its litigation for $602 million: $373
million to remedy alleged contamination on the landowners' property;
$100 million to remedy the alleged failure of the Eagle-Picher cleanup;
$2 million in damages for trespass, nuisance, and personal injuries;
$126 million for economic losses; and $103,000 in expenses incurred for
two environmental engineering studies, a property survey, laboratory
tests on soil and water samples, telephone calls, travel to EPA Region
6 and EPA headquarters, and medical expenses. The landowners later
revised this figure to $28 million, citing a desire to compromise and
save taxpayer dollars. Justice contacted the landowners in March 2002
and stated that it would not settle. Among other things, the government
argued that landowners had not incurred any cleanup costs recoverable
under CERCLA. Although the landowners report that they have not cleaned
up or contained the contamination on their property, they argue that
some of the costs they have incurred, including the costs of the
environmental engineering studies, are response costs under CERCLA.
The district court dismissed the suit, holding in part that the
landowners themselves were responsible parties because the release was
occurring on their property, and that under CERCLA responsible parties
cannot generally recover cleanup costs. While there is an exception to
this rule for "innocent landowners," those that exercised due diligence
before purchase in determining whether the property was contaminated
and due care with respect to hazardous substances found on the
property, the landowners failed to assert that they qualified for this
exception. The landowners appealed, contending among other things that
they are not responsible parties and that in any event they qualify as
innocent landowners. The appeal is pending. A more detailed description
of the litigation is included in enclosure II.
Observations:
Based on our observations, EPA has carried out its planned activities
to remove lead and arsenic contamination from residential and high-
access areas and to mitigate exposure to and migration of lead-and
arsenic-contaminated material from the Eagle-Picher site. From 1996 to
1997, EPA and its contractors took actions designed to remove
contamination from residential and high-access areas, establish proper
drainage on the Eagle-Picher site, consolidate and cover hazardous
material on the Eagle-Picher site with clay and cover soil, and
establish vegetative cover over the hazardous material on the site to
protect nearby residents against further contamination. Our review of
EPA's records shows that the Eagle-Picher site and the landowners'
property were used for a number of industrial activities over the past
century, hence determining the cause of current contamination on either
property would be problematic. Further, the removal action did not
purport to eliminate hazardous material at the Eagle-Picher site or to
make the Eagle-Picher site suitable for residential development.
Similarly, the action was not intended to remove contamination from the
landowners' property because, unlike the other properties where EPA
took action, it is not a residential property where EPA determined that
an imminent and substantial endangerment existed. As we describe above,
the district court dismissed the landowners' suit in its entirety, and
the landowners are appealing on the cleanup cost issues. We note that
final judgment regarding the merits of the landowners' case against EPA
is reserved for the court.
Agency and Other Interested Party Comments:
We provided EPA with a draft of this letter for review and comment. EPA
agreed with the letter's findings and observations and stated that the
actions EPA has taken at the Eagle-Picher site were appropriate to
address the human health threats posed by the site. EPA also provided
technical comments and clarifications, which we incorporated in the
letter as appropriate. In addition, we provided the landowners with an
opportunity to review and comment on a draft of this letter. The
landowners disagreed with several of the letter's findings and
observations. The landowners maintain that EPA's cleanup of the Eagle-
Picher site failed and assert that EPA's actions during the cleanup
were negligent or incompetent. Based on our review of EPA records and
discussions with EPA, EPA's contractors for the cleanup, and state and
local officials, we believe EPA carried out its planned activities at
the Eagle-Picher site. Written comments provided by EPA and the private
landowners appear in enclosures III and IV, respectively.
We conducted our work from May 2003 through August 2003 in accordance
with generally accepted government auditing standards.
As agreed with your office, unless you publicly announce the contents
of this letter earlier, we plan no further distribution of it until 30
days after the date of this letter. At that time, we will send copies
to other interested parties and make copies available to others who
request them. In addition, the letter will be available on GAO's Web
site at http://www.gao.gov.
If you or your staff have any questions about this letter, please
contact me or Peg Reese at (202) 512-3841. Major contributors to this
letter were Richard Johnson, Joanna McFarland, Kirk Menard, Judy
Pagano, and Leigh White.
John B. Stephenson:
Director, Natural Resources and Environment:
Enclosures:
Map of Henryetta, Oklahoma, Eagle-Picher Hazardous Waste Site and
Adjacent Landowner Property:
[See PDF for image]
Note: Eagle-Picher site and adjacent landowner property are not to
scale.
[End of figure]
Narrative Chronology of Events Related to the Eagle-Picher Henryetta
Hazardous Waste Site:
This enclosure provides a narrative chronology of events related to the
Eagle-Picher site in Henryetta, from its historical industrial use to
EPA's 1996 CERCLA removal action and current litigation related to that
action. This enclosure presents private landowners' concerns about
contamination from the Eagle-Picher site onto neighboring property,
culminating in a lawsuit against EPA and others, and EPA's response to
the landowners' concerns. Figure 1 provides a timeline of key events
related to the Eagle-Picher site.
Figure 1: Timeline of Key Events:
Eagle-Picher Site History:
The Eagle-Picher CERCLA site is located in the city of Henryetta,
Oklahoma, in east-central Oklahoma. The property is located northeast
of downtown Henryetta, population 6,096, and is west of the town of
Dewar, population 919, in Okmulgee County. From 1916 to 1968, Eagle-
Picher Mining and Smelting, Inc. (now EaglePicher Inc.) operated a
smelter on 70 acres near Henryetta, Oklahoma. The smelter was used to
recover zinc, cadmium, and germanium from ore received from mines in
northeastern Oklahoma. From 1943 to 1949, the U.S. Defense Plant
Corporation also operated on approximately 20 acres of the 70-acre
site.
Eagle-Picher ceased operations on the site in 1968 and donated the
property to the city of Henryetta in 1974. The city never operated the
site, but leased portions of the property beginning in 1975 to four
companies: Permocast, Inc. (an aluminum casting company), P&K Company,
Ltd. (a coal mining operation), Klutts Trucking (coal hauling for P&K
Company), and Glover Construction (an asphalt plant). During P&K's
occupation of the land, the company built a coal sedimentation pond--a
pond used to remove coal sediments during coal processing--on the
northern end of the property extending beyond the Eagle-Picher property
line. According to a representative for the city of Henryetta, P&K
Company also conducted extensive coal mining operations on the property
to the north of the Eagle-Picher site under an informal agreement with
the then-owner. P&K Company, Klutts Trucking, and Glover Construction
vacated the Eagle-Picher site prior to EPA's 1996 removal action.
Permocast is still active on about 3 acres near the northwest corner of
the site.
Industrial operations left the Eagle-Picher site with high
concentrations of arsenic, lead, and zinc in waste primarily located in
piles on the north and south portions of the site. Over 170,000 cubic
yards of bulk solid waste from the smelter remained on the site from
Eagle-Picher's operations. During the 1980s, EPA and Oklahoma state
agencies conducted numerous site investigations on the Eagle-Picher
property, identifying high concentrations of several metals in waste
piles and soil located near these piles. Air samples also indicated
lead and zinc contamination near a residence located near the Eagle-
Picher site. In 1988, EPA conducted a site assessment to determine if a
removal action was necessary to address the lack of site security
around heavy metal-contaminated zinc ore and waste piles on the Eagle-
Picher site. The assessment was conducted to determine if lead
contamination in waste material posed a threat to public health and
welfare through direct physical contact with the material. However,
because sampling indicated that contamination levels did not present an
imminent and substantial endangerment at that time, EPA decided that no
further action was necessary.
In 1996, prompted by heightened concern about material from the Eagle-
Picher site moved to residential and high-access areas, the Oklahoma
Department of Environmental Quality (ODEQ) contacted EPA requesting a
CERCLA cleanup of the site. This time EPA decided to proceed. EPA
officials explained that several factors contributed to the agency's
decision to conduct a removal action at the site in 1996.
(1) The health standard for lead had changed, indicating that lead
levels in the area were a greater concern than previously believed.
(2)Samples indicated that contaminated material from the Eagle-Picher
site was migrating to residences located immediately south of the site.
ODEQ informed EPA that material from the Eagle-Picher site was used as
fill material in the construction of residential driveways, schools,
alleys, and other high-access areas.
A site assessment conducted for EPA by Ecology and Environment, Inc.
from 1995 to 1996, prior to the removal action, reported that the site
posed a threat to the public and the environment through the risk of
direct contact and off-site migration of contaminants through wind and
water erosion. The assessment found that contaminated material had
traveled through a tributary to a creek located to the north of the
Eagle-Picher site. The assessment also found that residences and
businesses located south of the Eagle-Picher site within 500 feet of
the southern waste piles as well as high-access areas where smelter
material was used as fill material were contaminated with lead. Lead
exposure can be harmful to humans when ingested or inhaled, but is
particularly harmful to children because of their increased
susceptibility to the adverse neurological and developmental effects of
lead. Ecology and Environment, Inc. also developed a work plan that
provided the conceptual design and cost estimates for the removal
action.
Eagle-Picher Henryetta CERCLA Removal Action:
EPA initiated a removal action on the Eagle-Picher site and other
locations contaminated with material from the site in August 1996. EPA
and ODEQ entered into a contract pursuant to CERCLA setting forth the
responsibilities of both agencies in conducting the removal action. The
removal action addressed threats at areas accessible to children,
residential properties, and the Eagle-Picher site, as well as an
additional industrial site in the area. The primary concern was the
threat to public health posed by arsenic-and lead-contaminated soil.
As the lead agency under the contract, EPA's responsibilities included
excavating contaminated soil from residential properties and other
highly accessible areas, restoring these properties to near original
condition, and consolidating and encapsulating waste at the Eagle-
Picher site. EPA's responsibilities at the Eagle-Picher site also
included establishing proper drainage to minimize further off-site
migration of hazardous material, placing a clay cap over the heavily
contaminated areas, and placing cover soil over the entire smelter
facility site to protect nearby residents from further contamination.
The initial work plan developed by Ecology and Environment, Inc.
included draining and filling the coal sedimentation pond located on
both the Eagle-Picher site and the property to the north with clean
soil or hazardous material from the northern waste pile, or both.
ODEQ's responsibilities included establishing a vegetative cover on
areas of the Eagle-Picher site and providing funding to reimburse EPA
for 18 percent of the cost of performing the removal action. In
addition, the removal action included the excavation of waste from a
separate former smelter site in the area, operated by Victory Metals,
and the consolidation of this waste at the Eagle-Picher site. EPA was
responsible for excavation and consolidation of the waste, while ODEQ
was responsible for establishing vegetative cover on disturbed areas at
the Victory Metals site and reimbursing EPA for costs in connection
with the removal action at the Victory Metals site.
To conduct the removal action, EPA entered into an interagency
agreement with the Department of Interior's Bureau of Reclamation (BOR)
for engineering and contracting support for removal activities. BOR
contracted with Environmental Chemical Corporation (ECC) to conduct the
engineering work on the site. ECC began excavating material from
residential and high-access areas in August 1996 and completed
excavation at three parks, three schools, and 162 residential
properties by July 1997. Relocation and consolidation of waste at the
Eagle-Picher site was initiated in February 1997. Small ponds located
on the site were filled with soil and compacted, and the most
contaminated smelter material was relocated to the consolidated waste
area on the site. Material from waste piles, as well as waste excavated
at the Victory Metals site and other areas, was also relocated to the
consolidated waste area. BOR officials explained that culverts were
installed to drain water from the consolidated waste area--a large,
contoured plateau--and direct water into natural gullies located on the
site.
In addition, in January 1997, EPA and the then-owner of the property
immediately north of the Eagle-Picher site entered into an agreement
allowing EPA access to the property. The property, used for coal mining
operations by P&K Company during its lease on the Eagle-Picher site,
contained a portion of the coal sedimentation pond located on both
pieces of land. The access agreement stated that the landowner
consented to officers, employees, and parties authorized by EPA
entering and having continued access to the property for taking samples
and other actions related to the investigation of contamination and for
the performance of a response action including, but not limited to:
the use of mechanical equipment,
the removal of contaminated material,
the replacement of removed contaminated material with clean material
and regrading of replaced material to the property's near-original
grade,
the replacement of vegetation whose removal was necessary with locally
available vegetation, and:
other actions necessary to mitigate releases or threats of releases of
hazardous substances from the property.
EPA contractors began draining the north coal sedimentation pond in
March 1997. EPA officials stated that its contractors placed clean soil
and large, uncontaminated debris into the coal sedimentation pond
partially located on this property. EPA officials explained that
although Ecology and Environment, Inc.'s initial plan mentioned the
possibility of placing hazardous waste in the pond, EPA did not proceed
with this plan. EPA and its contractors state that activities conducted
on the private property were limited to draining and filling the coal
sedimentation pond with clean material and installing a large drainage
pipe that directed excess water around the coal sedimentation pond into
natural gullies on the site.
EPA began capping the consolidated waste area with clay donated by a
local company in April 1997. Soil donated by a local strip mine in
exchange for leveling the property provided cover soil for the entire
Eagle-Picher site. With technical support from the U.S. Department of
Agriculture's Natural Resources Conservation Service and other local
entities, vegetation was planted to provide protection against the
erosion of contaminated materials. Sewage sludge provided by the city
of Tulsa and the city of Okmulgee also assisted in treating soil to
facilitate revegetation. EPA completed major removal operations in
August 1997. Additional drainage work was completed in December 1997,
and ODEQ continued planting vegetation on the site into the spring of
1998.
After completion of the removal action, the city of Henryetta agreed to
conduct long-term maintenance on the Eagle-Picher site. ODEQ has
provided technical expertise on maintenance activities to the city as
needed. According to city and EPA officials, the primary concern in
maintaining the site is ensuring the integrity of the cap placed over
the consolidated waste area to prevent exposure of hazardous waste. EPA
officials explained that appropriate maintenance activities include
controlling erosion at the site, particularly around drainage pipes
where water erosion of cover soil could occur. EPA officials stated
that they asked the previous owner of the property north of the Eagle-
Picher site to assume responsibility over maintaining the portion of
the cleanup that occurred beyond the Eagle-Picher property line, but
the previous owner declined. According to a city of Henryetta
representative, the city attempted to conduct maintenance on this
property, although the city lacked the authority to enter the property.
A city of Henryetta official noted that the logistics of this
arrangement were unclear. In January 2001, a deed restriction was
placed on the Eagle-Picher site that limited land use to commercial or
industrial use and prohibited residential, childcare, or nursing care
development because of the continuing presence of authorized
concentrations of hazardous substances in the soil and groundwater. The
deed restriction also stipulated that the groundwater under the site
should not be used for drinking or industrial uses and that activities
on the site must preserve and protect the cap over the hazardous waste.
Private Landowners' Concerns about Contamination from the Eagle-Picher
Site onto Neighboring Property:
Four private citizens began leasing the property north of the Eagle-
Picher site in October 1999. The property was used by P&K Company for
coal mining while it leased a portion of the Eagle-Picher site from the
city of Henryetta, and is located downwind from the Eagle-Picher site
and subject to prevailing southerly winds. The citizens stated that
they had an informal agreement with the previous landowner to lease the
land with the intent of purchasing it later. The citizens occupied the
site to pursue several business developments, including building an
asphalt plant, building and leasing commercial properties on land
fronting the highway, and building a prison facility. The citizens
reportedly paid $250,000 to purchase, transport, and erect an asphalt
plant on the property in late 1999. The citizens also report initiating
discussions with a potential investor in 1996 about financing the
construction of a medium-security geriatric prison facility on the
site.
During discussions in May 2003, the landowners told us they believed
the land they intended to purchase was suitable for these development
plans because state and local newspaper articles reported that EPA had
cleaned up the Eagle-Picher site adjacent to the land and deemed it
available for industrial business use. The landowners stated that they
assumed from this information that the property they planned to
purchase was a good site for locating an asphalt plant and a prison.
Furthermore, the landowners noted that no deed restrictions existed on
the property and no problems were identified by the title search
conducted before they purchased the property. The landowners also
stated that they did not realize the coal sedimentation pond, drained
and filled by EPA during the cleanup, was partially located on their
property. When asked whether a survey was conducted on the property to
clarify the property boundary with the Eagle-Picher site before the
purchase was made, the citizens told us that the local bank providing
the loan did not require one. The citizens' purchase of a portion of
the 330-acre property became final in July 2000.[Footnote 2] The
citizens maintained an informal agreement with the previous owner to
purchase the remainder of the property located along the highway when
they were able.
In October 2000, one of the landowners stated that he stepped into
water on the southern portion of his property bordering the Eagle-
Picher site and experienced chemical burns on his feet. On October 10,
2000, a private law firm representing the landowners called EPA's
National Response Center reporting that a hazardous waste release
occurred on the landowners' property. From October 2000 through March
2001, the landowners and their counsel contacted EPA requesting
additional information about the Eagle-Picher site. The landowners also
employed two environmental firms to conduct a site investigation that
entailed testing soil and water on the property and to conduct an
assessment of health risks associated with contamination on the
property. The site investigation found elevated levels of pollutants
and concluded that portions of the Eagle-Picher cleanup had been
compromised. The assessment of health risks found that contamination on
the site could pose carcinogenic risks to workers. The landowners also
engaged an engineering firm to survey their property to confirm the
location of the boundary with the Eagle-Picher site.
The landowners reported experiencing additional health problems since
the October 2000 incident, including heart problems, skin lesions, and
difficulty speaking and breathing while on their property. The
landowners also indicated that contamination on their property has left
them on the brink of bankruptcy. The landowners ceased discussions with
a potential investor in a prison to be built on the property in
December 2000, citing the discovery of a hazardous material release on
the Eagle-Picher site. The landowners also stated that the asphalt
plant erected on the property was never operated because of the
discovery of hazardous material.
EPA's Response to Landowner Concerns about the Eagle-Picher Cleanup:
EPA responded to the private landowners' October 10, 2000, incident
report to the National Response Center by referring the incident to EPA
Region 6, which referred the incident to ODEQ. EPA officials explained
that when the National Response Center receives an incident report, it
contacts the appropriate EPA regional office to determine if immediate
response is warranted. EPA officials explained that events such as
train wrecks or airplane crashes would require immediate response. In
this case, EPA determined that the incident was indicative of a pre-
existing condition and did not warrant immediate response. Region 6
officials referred the report to ODEQ because state officials are
closer to and more familiar with sites in their area. The director of
the Waste Management Division at ODEQ told us that ODEQ handles
incident report referrals on a case-by-case basis and does not have
formal procedures in place for responding to reports. In this case,
ODEQ reviewed sampling data supplied by the landowners' counsel and
determined that the site did not need to be cleaned up to residential
standards, and therefore the level of contamination present did not
justify a cleanup. ODEQ officials telephoned the landowners and
explained its conclusion that the contamination did not require any
action. On December 17, 2002, one of the landowners E-mailed EPA Region
6's Internet Comments E-mail address reiterating concerns about
contamination resulting from the Eagle-Picher cleanup. An EPA Region 6
official responded to this E-mail with a letter sent January 17, 2003,
stating that the concerns raised were the same as, or very similar to,
issues EPA discussed previously with the landowners and their counsel
and did not warrant additional EPA response or action.
From October 2000 through March 2001, the landowners and their counsel
contacted EPA through written correspondence, telephone calls, and
Freedom of Information Act requests seeking information about the
Eagle-Picher cleanup. EPA responded to landowners' written requests for
information by advising the landowners of the cost to provide documents
and, when the cost proved excessive, providing the documents for
landowners' counsel to review at EPA's offices. EPA officials told us
the agency responded to landowners' concerns appropriately. Although
EPA took several months to respond to some requests for information,
EPA explained that delays resulted from the time required to retrieve
documents placed in storage, review files to locate appropriate
documents, and determine a cost estimate for providing the documents
directly to the landowners. For example, EPA responded to the
landowners' December 13, 2000, request for documents on March 12, 2001,
attributing the delay to the time required to review site documents and
determine an estimated cost for identifying and copying appropriate
documents. EPA officials stated that document requests after the
landowners filed suit were treated as discovery requests within the
litigation rather than Freedom of Information Act requests and were
addressed by EPA and Department of Justice attorneys.
Landowners Pursue Litigation against EPA, ODEQ, the City of Henryetta,
and Others:
The landowners disagree that EPA was responsive to their concerns about
contamination on their property and assert that EPA's systemic attitude
has impeded their efforts to obtain information about the cleanup. The
landowners cited unnecessary delays in providing documents and alleged
that EPA attempted to hide the truth about cleanup actions.
On March 16, 2001, the landowners filed suit in federal district court
against numerous defendants, including EPA and the city of Henryetta,
the two defendants that are the focus of this report. Alleging that
these defendants were respectively a former and the current owner, the
landowners sought response costs under CERCLA and an injunction under
CERCLA requiring EPA and the city to carry out further cleanup
activities on the Eagle-Picher site and to clean up the landowners'
property. The landowners also brought several claims under state law,
alleging that (1) EPA had trespassed on their property;[Footnote 3] (2)
the contamination from the Eagle-Picher site constituted a public
nuisance for which EPA and the city were responsible; (3) the
landowners had suffered personal injury from the contamination on their
property originating from the Eagle-Picher site; and (4) the landowners
had suffered economic loss as a result of the contamination on their
property from the Eagle-Picher site.
On February 12, 2002, the landowners, Department of Justice attorneys
representing EPA in the lawsuit, EPA Region 6 officials, and a
congressional staff member met to discuss the litigation. The
landowners proposed settling its litigation for $602 million: $373
million to remedy alleged contamination on the landowners' property;
$100 million to remedy the alleged failure of the Eagle-Picher cleanup;
$2 million in damages for trespass, nuisance, and personal injuries;
$126 million for economic losses; and $103,000 in expenses incurred for
two environmental engineering studies, a property survey, laboratory
tests on soil and water samples, telephone calls, travel to EPA Region
6 and EPA headquarters, and medical expenses. The landowners later
revised this figure to $28 million, citing a desire to compromise and
save taxpayer dollars.
Following this meeting, Justice wrote the landowners' counsel on March
19, 2002, and stated that it would not settle. Justice stated in its
letter that EPA did a good job in cleaning up the Eagle-Picher site and
that Justice has not seen any evidence that EPA's work harmed the
landowners' property or that the cleanup action failed. Justice also
stated that no contaminated wastes were placed in the coal
sedimentation pond or on the landowners' property. With regard to the
landowners' claims for nuisance, economic losses, and medical expenses,
Justice stated that the landowners failed to follow the appropriate
procedure for filing tort claims against the United States.[Footnote 4]
Regarding their claims under CERCLA, Justice asserted that the
landowners had not established that they had already incurred response
costs or that any such costs were necessary. Justice also noted that
the only way for the landowners to recover all of their costs would be
to show that they were "innocent landowners" under CERCLA, meaning
among other things that they exercised due diligence in inquiring into
the condition of the property before they bought it and due care with
respect to hazardous substances that may be present on their property.
On September 30, 2002, the district court dismissed the landowners'
suit against EPA and the city.[Footnote 5] The court held that the
landowners were PRPs for the contamination on their property, and that
applicable CERCLA case law generally prohibited PRPs from recovering
response costs.[Footnote 6] Although "innocent landowners" may bring
cost recovery actions under CERCLA, the court noted that the landowners
did not argue that they qualified for this exception to the general
rule prohibiting cost recovery actions by PRPs.[Footnote 7] Because the
landowners could not seek any response costs from EPA and the city, the
court did not decide whether the landowners had in fact incurred such
response costs. Because no federal claims remained, the court
accordingly dismissed the state law claims against the city, although
it noted that the landowners could re-file these claims in state court.
In an earlier ruling, the district court also rejected the landowners
attempt to obtain an injunction, holding that because CERCLA does not
require EPA to take remedial action, courts lack the power to order it
to do so.[Footnote 8] The earlier ruling also dismissed the landowners'
state law claims against the United States, holding that the landowners
had failed to follow required administrative procedures in filing such
claims against the United States.
The landowners have appealed that part of the district court's order
dismissing their claim for response costs under CERCLA. The landowners
contend among other things that they are not responsible parties, that
in any event they qualify as innocent landowners, and that applicable
CERCLA case law does not prohibit them from recovering costs from EPA
and the city. The landowners have hired new counsel to pursue the
appeal, which is pending.
City of Henryetta Attempts to Condemn a Portion of Private Property
Neighboring the Eagle-Picher Site:
Because the landowners will not allow the city of Henryetta to conduct
maintenance on the portion of the cleanup that occurred on their
property, the city is currently attempting to condemn about 12 acres
bordering the Eagle-Picher site. A representative of the city of
Henryetta explained that city officials attempted to conduct
maintenance on the landowners' property but were told they were
trespassing and were asked to leave the property. An EPA official
stated that surface water is cutting into a gully along the drainage
pipe that terminates into a natural drainage pathway on the landowners'
property. This gully needs to be repaired because, if left unchecked,
it could eventually damage the drainage pipe or cut into the hazardous
substances encapsulated on the site.
[End of section]
Comments from the Environmental Protection Agency:
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460:
AUG 26 2003:
OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE:
Mr. John B. Stephenson:
Director, Natural Resources and Environment United States General
Accounting Office Washington, DC 20548:
Dear Mr. Stephenson:
Thank you for the opportunity to review the General Accounting Office's
(GAO) draft report, "Hazardous Waste: EPA's Cleanup of the Eagle-Picher
Henryetta, Oklahoma, Site." We find that the report accurately reflects
the U.S. Environmental Protection Agency's (EPA)
position regarding the issues raised by landowners near the site.
For many months we have had extensive communications with Senator James
Inhofe and provided him voluminous background information on EPA
activities at the site. Your report captures this information as well.
We believe the actions EPA has taken at the Eagle Picher site were
appropriate to address human health threats posed by the site.
Again, thank you for the opportunity to review your draft report.
Sincerely,
Tom Dunne:
Associate Assistant Administrator:
Signed by Tom Dunne:
[End of section]
Comments from Private Landowners:
Jack Young Asphalt & Construction Co.Inc.
U. S. G. A.O.
441 G street,N.W.,Room 2T23 Washington, D.C. 20548:
Attention: Mr. John Stephenson:
Re: EPA's Cleanup of the Eagle Pitcher Henryetta, OK Site(GAO-03-
1051R).
Dear Sir:
We, myself, my partner Dayle James, and our wives, appreciate Ms. Peg
Reese from GAO taking the time and interest to visit our offices again,
to allow us to review your Draft Report on the captioned matter. We
also appreciate your allowing us to submit our comments on the Draft
Report which, as I understand, will be included in your Final Report.
It is our understanding that GAO is seeking "the truth" with regard to
the subject of this investigation and Report and I can assure you that
anything we include in the following comments is "the truth", to the
best of our knowledge. However, with all due respect, we fear that,
based on the Draft Report, GAO appears to have been mislead on several
key issues. Inasmuch as I do not have a copy of the Draft before me and
must rely on my memory, I may unintentionally mis-state certain
matters. Nonetheless, we urge you, and others with GAO who are involved
in this matter to seriously consider the following.
1. DRAFT: We understand that because of pending litigation, GAO does not
seek to determine the cause of the contamination associated with the
EPA/BOR removal project or to assess responsibility therefor.
COMMENT: The cause, and the responsibility for the release of hazardous
substances from the smelter site onto our property is abundantly clear.
2. DRAFT. EPA/BOR installed a clay cap, cover soil, and a vegetative
cover for the smelter site.
COMMENT: From your investigation GAO knows EPA did not prepare any
design plans for the project, only a statement of general intentions in
their Action Memorandum. Nor did BOR submit any design plans to the
contractor, just a vague statement of intentions and concepts that
actually called for the contractor to submit its own version of project
objectives. Nor did BOR prepare any "as built" plans, merely a "general
review" with little specifics. We concede that EPA/ BOR probably
intended to install a clay cap, cover soil, and to re-vegetate the
smelter site. But the difficulty in our search for the truth has never
been so much with what EPA/BOR or the contractor "intended" or
"planned" to do, but more with exactly what work was performed and
where it was performed. A review or analysis of these documents will
not disclose these pertinent facts. We have spoken to several of the
workers that performed the day-to-day work on the project and their
accounts of what they did and where they did it are vastly different
from what EPABOR or the contractor suggest. We assume that in your
quest for the truth, GAO has also
spoken to many of these same workers and have found the same
inconsistencies. 3. DRAFT: EPA/BOR installed a drainage system for the
smelter site. COMMENT: We also recognize that EPA/BOR probably intended
to design and install a drainage system to prevent the migration of
contaminate-laden precipitation from the smelter site onto adjoining
landowners. Unfortunately, the drainage system EPA/BOR and the
contractor installed was not completely on the smelter site. Much of
the EPA/BOR drainage system was actually installed on our adjoining
property. I can assure you, this fact will not appear in any of the
documents mentioned above. But then GAO already knows that. The portion
of the drainage system on our property consists of about 300 to 400
feet of 24" PVC pipe. Approximately 100 feet of this drainage pipe was
left surficially exposed on our property, which the contractor
installed backwards, was then approved by EPA/BOR, for which the
contractor was paid. This "backwardness" merely exacerbates the release
of contaminate-laden precipitation onto our site. But regardless of
whether the drainage pipe was actually installed correctly or
backwards, its design and purpose was to transport and deposit
significant amounts of contaminate-laden precipitation directly onto
our property on a daily basis. As we know your Report will confirm, the
southerly part of our tract is approximately 75 feet down-gradient from
the smelter site which, of course, serves to accelerate the migration
of this contaminate-laden precipitation onto our property The
disturbing thing about this is that inasmuch as none of our property
was included in the EPA/BOR removal project, it is irrefutable that
whomever was responsible for the design and/or installation of such a
system was either negligent or grossly incompetent. Meaning no
disrespect, but we are not suggesting that the engineering staff at EPA
Region VI, or the engineering staff of BOR in Denver, or the engineers
of the contractor in California are incompetent. So the troubling
questions remain, [I] who would design, and [2] who would actually
install a drainage system on known non project property that completely
defeats a primary objective of the EPA/BOR removal project? We have
asked these questions for three years without getting truthful answers
and trust the GAO investigation will reveal the truth. We are sure that
is in part why Senator Inhofe sought your independent review. As your
letterhead states, "Accountability *Integrity *Reliability".
4. DRAFT. EPA/BOR claims to have filled the pond that was half on our
property and half on the smelter site with clean soil and
uncontaminated debris.
COMMENT: The conversations of GAO with workers on the EPA/BOR project
have told you a very different story. We have spoken to several of them
and the Affidavits of some are attached. From the Affidavits, you will
note that they confirm they drove several truck loads of hazardous
waste from the South Piles on the smelter site, which were the most
heavily contaminated of any on the smelter site that were dumped into
the pond. EPA/BOR caused the huge North Pile l, which contained over
166,000 cubic yards of contaminated waste to be bull dozed into the
Pond. The BOR report confirms that the toxic liquid contents of the
pond were drained onto our property. After the litigation was filed, we
caused additional soil samples to be taken from that part of the pond
that is on our property and had it tested. The tests revealed high
concentrations of the same hazardous substances found in the samples of
Nationwide Environmental Services at the base of the pond on our
property taken in November, 2000. Neither EPA, ODEQ, or the City of
Henryetta have ever returned to take any soil or water samples from our
property.
Again the questions, who would design a project and/or carry out a
project, that [1] requires the workers to trespass onto adjacent
property with heavy machinery, [2] that requires the workers to
trespass onto adjacent property by draining the contents of a large
coal sedimentation pond onto adjacent property, and [3] trespass onto
adjacent property to dump large quantities of hazardous substances??
Was that negligence of gross incompetence? If GAO does not feel our
tests are reliable, we would assume they have conducted their own
sampling and testing to ascertain the truth of exactly what was
deposited into the pond on our adjacent property. And, why did EPA/BOR
take all of this action by trespassing and damaging our adjacent
property? We were led to think EPA/ BOR were trying to cover up some
misdeeds. What did GAO ascertain?
5. DRAFT: ODEQ purportedly made the determination that the levels of
contamination did not warrant further action by EPA because EPA raised
the required levels for action in 2001.
COMMENT: Dayle James was with Marvin Boatwright (ODEQ) the only time
their office visited our property after the release in the Fall of
2000. Upon arrival at the edge of our property, within minutes
Boatwright complained that he could taste the contamination merely from
breathing at that distance. That is the only investigation ODEQ has
made. Neither they nor EPA have ever came onto our property to take any
soil or water samples or make any other evaluation of the conditions.
The City of Henryetta tried to trespass, again, on our property to make
a feeble attempt to cover up some of the exposed drainage pipe and when
our Lawyers told them they were trespassing, they promptly left. There
really isn't any question about what was done at the smelter site and
how it has failed. All EPA, ODEQ and DOJ have attempted is to cover up
for the negligence in the removal action and the damages it has cost
us. If GAO feels otherwise, then ask EPA and ODEQ to send a copy of
their test results and compare those with the test results of NES (Ben
Costello) who gathered samples from our site in the Fall of 2000. I'm
sure you have studied the NES report. No other engineer disputes the
findings of NES. Plain and simple, the EPA removal action has failed
and the smelter site continues to discharge hazardous substances onto
our property and other lands, including Tribal lands of the Creek
Nation.
6. DRAFT: DOJ is of the opinion that because the EPA removal action has
failed and is leaking hazardous substances onto our property, in order
for us to recover our costs in response to the release we would have to
show we were "innocent landowners" under CERCLA.
COMMENT: Since I'm not a lawyer, it is difficult for me to present much
of a legal argument although in the past three years I have come to
know a little about CERCLA. From my non-legal reading of CERCLA, with
all due respect, DOJ is flat wrong. To follow their reasoning, if a
twenty mile pipeline carrying hazardous substances was to rupture and
leak its contents onto hundreds of farms, each of the farmers that
incurred costs trying to contain the effects of the leak would have to
first prove they were "innocent purchasers" of their own farms in order
to recover their costs. Merely because the hazardous substances just
happened to end up on their land. It even sounds silly. But
that's not what CERCLA says. The whole concept about CERCLA is making
those responsible for the release, liable for its clean up and that is
exactly what Congress said. One would like to think that with thousands
of lawyers working at DOJ at least one of them would be able to
understand the plain language of CERCLA. You should also keep in mind
that it was the same DOJ that tried to convince the judge in our case
that the federal government was shielded from CERCLA liability based on
sovereign immunity. Anyone with a third grade education could read
Section 120 of the Act and understands that it plainly says that
sovereign immunity is expressly waived for the federal government. So,
no, frankly, I don't put much stock in what DOJ might have to say and I
would think GAO could read and understand CERCLA for themselves. The
"innocent purchaser" language is contained in one of only three
defenses to CERCLA response cost liability. The other two are that the
release was caused solely by an act of God or an act of War. What GAO
needs to understand in realizing the complete lack of understanding by
DOJ of CERCLA, is that we were the Plaintiffs, not Defendants. We were
the ones that brought the lawsuit, not the ones being sued. If we had
taken the position that we were somehow responsible for the failure of
the EPA removal action and the leakage of the hazardous substances and
were asking others, such as EPA, to contribute to the clean up, then we
could assert a defense that we were merely "innocent purchasers". But
that was not the case. The simple truth is that we had nothing to do
with the failure of the EPA remedy or the release.
OTHER COMMENTS: Inasmuch as we were not able to retain a copy of the
Draft, I am understandably limited in how much of it I can retain in my
memory. I trust these comments have not come across as too "caustic",
to coin a phrase, but we have been struggling for three years at great
expense merely trying to get our business back together after
discovering what EPA and others put on our property. If we can't trust
our government to admit its mistakes and make things right, then we
need to tear up the Constitution and get the hell out of Iraq,
Afghanistan, and a whole bunch of other places on whom we are trying to
impose our concepts of peace, freedom, liberty, and democracy and
simply stay at home. I doubt those folks could do things any worse than
our own government.
I appreciate the opportunity to submit these Comments which I trust
will be received by GAO in the light in which they were intended. All
we want is justice under the law.
Sincerely,
Jack Young
Signed by Jack Young:
GAO Comments:
The following are GAO's comments on the private landowners' undated
letter, received by GAO on August 26, 2003.
1. Determining the cause of contamination associated with the cleanup
was beyond the scope of our review. We note, however, that the cause of
contamination on the landowners' property is not clear. As our report
states, our review of EPA's records shows that the Eagle-Picher site
and the landowners' property were used for a number of industrial
activities. Federal and state officials told us that at least some
contamination was present on the landowners' property before EPA
conducted its removal action. Therefore, our report states that
determining the cause of current contamination on either property would
be problematic.
2. As we reported, in addition to EPA's Action Memorandum, EPA's
contractor, Ecology & Environment, Inc., prepared a Removal Site
Assessment Report that included a Conceptual Closure Design & Work Plan
for the removal action. This document provided the conceptual design
for the removal action. We agree that BOR did not submit any design
plans. However, EPA contracted with BOR to conduct the engineering work
to implement EPA's design plans for the removal action, not to provide
additional design plans.
The landowners assume that we spoke to many workers about their
accounts of work performed during the cleanup and that we found
inconsistencies between these accounts and EPA's plans for the site.
While we reviewed the affidavits obtained by the landowners from two
workers who performed work on the site, it was beyond the scope of our
review to interview every worker associated with EPA's cleanup. EPA
officials and EPA contractors told us that the actions taken during the
cleanup were consistent with the design plan.
3. The landowners assert that the drainage system installed by EPA and
its contractors was installed on both the Eagle-Picher site and the
landowners' property, included a drainage pipe that was installed
backwards, and was designed to transport and deposit contaminated
material onto their property. Our report states, and we have explained
our role and scope on this review to the landowners on numerous
occasions, that we did not evaluate the sufficiency or effectiveness of
EPA's actions during the cleanup. However, we note that EPA obtained an
agreement with the then-current owner of the adjacent property north of
the Eagle-Picher site that allowed EPA to access the property to
conduct a range of work during the removal action, including installing
a portion of the drainage system. EPA officials told us that a portion
of the drainage system was installed on the adjacent property to direct
drainage around the consolidated waste area on the Eagle-Picher site
and into natural gullies located on the adjacent property. Regarding
the installation of the drainage pipe, we observed the drainage pipe
during our site visit, but were unable to determine whether the pipe
was installed backwards or not. We disagree with the landowners'
assertion that the drainage system was designed to transport and
deposit contaminated material onto the landowners' property. According
to BOR's Removal Action Report, drainage control measures were
constructed to significantly minimize the potential for off-site
migration of contaminants by capturing and redirecting water on the
site. We note that EPA and city of Henryetta officials told us the
drainage area on the landowners' property needed maintenance, and that
city workers were refused access to the landowners' property. We
further note that the removal action purported to mitigate migration of
contaminants, not to prevent any migration of contaminants.
The landowners also assert that the party responsible for designing and
installing the drainage system was negligent or grossly incompetent. As
our report states, because the landowners are currently involved in
litigation against EPA and others, we did not assess the sufficiency of
the cleanup or determine any liabilities associated with the cleanup.
4. Regarding the landowners' claims of trespass, we note that EPA
obtained an access agreement signed by the former owner on January 20,
1997. The agreement authorized EPA to conduct a range of activities on
the property, including the use of mechanical equipment, removal and
replacement of contaminated material, and other actions necessary to
mitigate releases or threats of releases from the property. With regard
to whether hazardous material was placed on the adjacent property
during the cleanup, officials from EPA, BOR, and Environmental Chemical
Corporation (BOR's contractor) have all stated that, although EPA's
initial plans included placing hazardous waste into the pond as an
option, EPA and its contractors did not proceed with this plan. Rather,
EPA and its contractors state that uncontaminated debris such as cement
blocks were placed into the pond, along with clean soil.
Regarding the landowners' assumption that we conducted our own sampling
and testing to ascertain the truth about what was deposited into the
pond located on both properties, as we stated in comments 1 and 3,
determining the cause of contamination or any liabilities associated
with the cleanup was beyond the scope of our review.
5. We disagree with the landowners' characterization of our report
statements regarding ODEQ's response to the landowners' hazardous waste
incident report. Our report does not state that ODEQ made the
determination that the levels of contamination did not warrant further
action by EPA because EPA raised the required levels for action in
2001. Rather, our report states that ODEQ reviewed sampling data
supplied by the landowners' counsel and determined that the site did
not need to be cleaned up to residential standards, and therefore the
level of contamination present did not justify a cleanup. While we
reviewed the landowners' environmental studies, it was beyond the scope
of our review to determine the cause of contamination or any
liabilities associated with EPA's removal action.
Based on our observations, EPA carried out its planned activities to
remove contamination from residential and high-access areas and to
mitigate exposure to contaminated material from the Eagle-Picher site.
Federal, state, and local officials told us that EPA's removal action
met its objectives. We note that the removal action did not purport to
eliminate hazardous material at the Eagle-Picher site or to remove
contamination from the landowners' property because the property was
not a residential property.
6. We have no response to the landowners' comments regarding litigation
against EPA and others. As stated in our report, we present the results
of litigation but because the landowners' litigation is ongoing, we did
not assess the merits of the landowners' litigation against EPA. We
state, however, that final judgment regarding the merits of the
landowners' case against EPA is reserved for the court.
[End of section]
(360336):
FOOTNOTES
[1] A January 2001 deed restriction placed on the Eagle-Picher site
prohibited residential, childcare, or nursing care development.
[2] According to a city of Henryetta representative, the landowners
purchased approximately 280 acres in 2000.
[3] Specifically, the landowners alleged that EPA had dumped both
hazardous and nonhazardous substances on their property, moved and used
soil on their property, and erected signs on their property, all
without permission.
[4] The landowners have not pursued these claims.
[5] Young v. United States, No. CIV-01-155-S (E.D. Okla. Sept. 30,
2002).
[6] The court also noted that the landowners could have sought
contribution from EPA and the city for the landowners' cleanup costs
had the landowners themselves been subject to a cleanup order or a cost
recovery action under CERCLA. However, neither circumstance was present
in this case.
[7] To be considered an innocent owner, owners must establish that at
the time of acquiring the contaminated property they exercised due
diligence in determining whether the property was contaminated, and
that since acquiring the property they have exercised due care with
respect to any hazardous substances present. 42 U.S.C. §§ 9601(35),
9607; see Sinclair Oil Corp. v. Dymon, Inc., 988 F.Supp. 1394, 1397 (D.
Kan. 1997).
[8] In addition, the earlier ruling held that to the extent EPA was not
negligent, CERCLA specifically exempted it from liability under the
theory that it had arranged for the disposal of hazardous substances on
the landowners' property as a result of EPA's cleanup activities.
