NCD981475932_20070214_FCX Inc. (Washington Plant)_SERB C_General Correspondence 1988 - 2007-OCR

: • •
STATE OF NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION
MICHAEL F. EASLEY
GOVERNOR
TIP:
WBS#:
COUNTY:
DESCRIPTION:
MEMORANDUM TO:
FROM:
SUBJECT:
February 14, 2007
R-2510B
34440. I. I
Beaufort
US 17 Washington Bypass
L YNDO TIPPETT
SECRCIARY
Ms. Jacqueline Armstrong, El, Design Build Engineer
Alternative Delivery Unit
Cyrus Parker, LG, PE
Project Manager
GeoEnvironmental Section
Geotechnical Engineering Unit
Response to Construction Meeting Comments and
Request For Information (RFI) No. 32
In response to questions presented by Flatiron/United at the January 12, 2007
construction meeting regarding geoenvironmental issues on the Washington Bypass
project and RFI No. 32, the following comments are provided:
If trash is disturbed in the known Chocowinity or Washington Dump areas during
clearing and grubbing operations, the Design-Build Team shall haul the trash to a
licensed disposal facility. Trash is not to be burned with the clearing and grubbing
debris.
Within 30 days of receiving written notification and approval of the "Trash Clearing
Plans", the Geotechnical Engineering Unit will clear the trash from the proposed bent
locations to the extent shown on Flatiron/United's "Trash Clearing Plans" and/or to the
extent the permits will allow, which ever is less. If additional trash clearing is needed, it
will be Flatiron/United's responsibility to modify the permits, clear the trash, and haul the
trash to a licensed disposal facility.
MAILING ADDRESS:
NC DEPARTMENT OF TRANSPORTATION
GEOTECHNICAL ENGINEERING UNIT
GEOENVIRONMENTAL SECTION
1589 MAIL SERVICE CENTER
RALEIGH NC 27699-1589
TELEPHONE: [phone]
FAX: [phone]
WEBSITE: LNVMI.DOH.DOT.STATE.NC.US
LOCATION:
CENTURY CENTER COMPLEX
BUILDING 8
1020 BIRCH RIDGE DRIVE
RALEIGH NC 27610
• Ms. Jacqueline Annstrong
R-25l0B
Washington Bypass
Page 2 of2
Ground water forced to the surface during pile-driving operations in the Washington
Dump and FCX Superfund areas shown on the GeoEnvironmetal Plans will be allowed to
infiltrate back into the ground water if the water is contained around the pile and not
allowed to enter surface water.
Soil in the agricultural field from station 476+00 -L-to 484+16 -L-is to be considered
NOT contaminated unless signs of contamination are found during construction and/or
noted by the engineer. Unless signs of contamination are found, the soil from this area
has unrestricted use on the project. If soil contamination is found in this area, it will be
considered an "Unknown Contaminated Site" and the Design Build Team shall follow
Section IV of the GeoEnvironmentaI Scope of Work. It should be noted that during the
EPA's January 23, 2007 site visit they noted probable soil contamination under the
building foundation of the former Arin's Social Club along Grimes Road. Soil
excavation from station 484+ 16 -L-to Grimes Road remains restricted as noted in the
Geo Environmental Scope of Work.
If dewatering is required for the Dominion Power utility relocation between the
Washington Dump site and the FCX Superfund site, the Design-Build Team has the
choice of two options. Option One: the design build team shall obtain a Non-Discharge
Permit from the NCDENR Division of Water Quality which will allow the ground water
to infiltrate back into the ground. The infiltration system shall comply with the
requirements specified in the North Carolina Administrative Code Title 15A Subchapter
2T. Option Two: the ground water shall be containerized and tested to determine the
appropriate disposal method. The Design-Build Team shall be responsible for the
disposal of this ground water if the second option is elected.
Please contact me at (919).250-4088 if you have any questions or comments concerning
these comments.
cc (via PDF Email)
Don Moore, LG, NCDOT, Geotechnical Engineering Unit Contract Administrator
Teresa Burton, PE, NCDOT Alternative Delivery Unit
Bruce Lefler, NCDENR, Inactive Hazardous Sites Branch
Nile Testerman, NCDENR, Superfund Federal Remediation Branch
Al Hodge, NCDENR, Surface Water Protection Section
David May, NCDENR, Aquifer Protection Section
Samantha Urquhart-Foster, US EPA Superfund
File
I II!~,..•*•• •
1t OLD REPLBLIC
1111* * Old Republlc Surety Company 111''* * * Old Republlc Insurance Company
August 6, 1996
'
North Carolina Department of Environment
Health & Natural Resources
North Carolina Superfund Section
P.O. Box 27687
Raleigh, NC 27611-7687
ATTN: Jack Butler, P.E.
•
7610 Stemmons, Suite 400
P.O. Box 569480. Dallas, TX 75356-9480
Phone: (214) R634~00/.Fk'.'x:/(2.14).688-)1120 r_C,c. \/•-'
AUG 14. 1996
SUFt.,·,rUNu SECTION
Certified Mail
Return Receipt Requested
# P 104 273 464
RE: FCX, Inc., Bankruptcy Case No. 85-01574-SOS
U.S. Department of Justice, Environment & Natural Resources Division
File No. 90-11-3-350, North Carolina Superfund Section File Numbers
SIS-070-100-612 (Washington) and SIS-490-100-613 (Statesville)
Holmes P. Harden, Trustee for FCX Environment Settlement Trust
Dear Mr. Butler,
We are herewith returning the originally executed endorsement form reducing
the captioned bond to a level of $211,000. This original should be retained
in your file as we have kept a copy of the acknowledged form with your
signature.
If you have any questions regarding this, please advise.
Sincerely,
Underwriting Manager
DRL/lm
Enclosure
10
r
\
' '
OLD REPUBLIC INSURANCE COMPANY
RIDER
• t',:•.....,r ~ . 1acJc r'l.. .. 1 . · : ;/ Eb
Jtl,L ·b 9 1996
SUPERl'lJNO SECTlbN
TO BE ATTACHED TO AND FORM PART OF
TRUSTEE Bond Number LSC-833865 (Type of bond)
IN FAVOR OF US ENVIROMENTAL PROTECTION AGENCY
(Obligee)
ON BEHALF OF HARDEN, HOLMES P. RE: FCX, INC.
(Principal)
EFFECTIVE 10/07/91
(Original effective date)
IT IS AGREED THAT, in consideration of the original premium charged for thigbond, and any additional premium that may be properly chargeable as a result of this !"1der,
I,) ·~":
,.:.::: 1. The Surety hereby gives its consent to: ~~1 f\.)
,_!-:• i\J INCREASE CHANGE THE NAME OF THE PR!NCI!1AL I .• -..,
)> ()') X DECREASE CHANGE THE ADDRESS OF THE' PRINCIPAL
CHANGE THE EFFECTIVE DATE CHANGE THE EXPIRATION DATE
OTHER
(of) the attached bond FROM: TWO MILLION TWENTY-FOUR THOUSAND SEVEN HUNDRED FIFTY
AND 00/100 ($2,024,750.00) DOLLARS.
TO: TWO HUNDRED ELEVEN THOUSAND AND 00/100 ($211,000.00) DOLLARS.
EFFECTIVE: -"6/~2~6~/~9~6'--------------------
2. PROVIDED, however, that the attached bond shall be subject to all its agree-ments, limitations, and conditions except as herein expressly modified, and that the liability of the Surety under the attached bond and under the attached bond as changed by this rider shall not be cumulative.
3. Signed a11d sealed this 3rd -~~--
ACCEPTED BY:
L> (TITLE)
See,./ ,,·91,1, C,4 ,'e,-/'
,,,u.,c, J'"tf)err'""'1« Jec/;017
ORSC 22381 (l/93)
day of _J~u_l~---------19 96
OLD REPUBLIC INSURANCE COMPANY
By:
ATTORNEY-IN-FACT
ADELE GOLDSTEIN
J
January 2, 1996
To: File
From: Jack Butler~
Subject: Status of Clean-up Activity
Potters Pitts, NCO 981 023 260
'iE_CX_:_Wiisliingto~ NCO 981 475 932
•
Mr. Curt Fehn, EPA Region IV, contacted our office on this date to inform us that due to the
lack of a Federal budget his staff at EPA were being again furloughed and that he had been
instructed to have all contractor work stopped until a federal budget is approved. For this reason
the contractors at the Potters Septic Tank Pitts site and the FCX-Washington site are being sent
home and all remediation work at these sites will cease until further notice.
\J I '. • •
LACY H THOH!','BUIK> Department of Justice
P.O. BOX G20
RALEIGH
27G<)2·062P
ATI ( JHNEY ( ;i:;;•SEH:\J.
To:
From:
Re:
Date:
MEMORANDUM
Bill Meyer
Lee Crosby
Jill Hickey
Nancy Scott
FCX -Washington
Request for Release from Liability by Fred Webb
July 16, 1991
Factual Background
Fred Webb, Inc. has requested that the State consider
releasing it from liability for all claims the State may have
against it under both federal and state Superfund law. In
support of this request, Fred Webb asserts that it will not be
able to remain in business unless its liability to the State is
resolved, that it provides a valuable service to the farmers of
North Carolina, and that it employs 46 people.
Fred Webb, Inc. is a North Carolina Corporation operating
primarily in eastern North Carolina. Fred Webb, Inc. buys grain
and cotton from North Carolina farmers, stores it for a period of
time, and then sells it. This business is highly leveraged (90%)
and, thus, Fred Webb is dependent upon loans from its bankers.
The bank loans are secured by warehouse receipts for the farm
commodities. Fred Webb employs approximately 46 people.
Fred Webb, Inc. purchased the former FCX facility in
Washington, North Carolina from the FCX bankruptcy estate for
$200,000. Fred Webb was not involved in the environmental
contamination of the site, but was aware of the contamination at
the time it purchased the site. One hundred thousand dollars of
the sales price was placed in escrow to cover any environmental
liability to the State and federal governments arising from the
site. The Bankruptcy Court in the FCX matter approved the sale
to Webb. Subsequently both the Washington site and another
former FCX distribution center in Statesville were placed on the
National Priorities List. In 1988 the State and EPA entered the
FCX bankruptcy proceedings seeking to have money set aside to
An Equal Opportunity/ Affirn1utive Action Employer
• •
clean up both sites. The litigation concluded with a Consent
Decree under which FCX would transfer two million dollars to a
trust account for reimbursement of EPA and State cleanup expenses
at both sites. Ten percent ($200,000) of the trust account is
reserved for the state.
Although Fred Webb vigorously contested its liability for
the environmental problems at the site, EPA has recently obtained
a declaratory judgement ruling from the U.S. District Court for
the Eastern District of North Carolina that Fred Webb is a
potentially responsible party under federal Superfund law. Fred
Webb is, therefore, liable for all of EPA's costs to remediate
the site. The State was not a party to this litigation.
As a result of this ruling, Fred Webb's bankers told Fred
Webb they could not continue to finance the business as long as
the unknown and potentially very large liability to the federal
government existed. 'Fred Webb then sought a release from EPA for
its liability under the federal Superfund law. After an .
examination of Fred Webb's financial situation by EPA and the US
Department of Justice and extensive negotiations between the '
parties, EPA determined that Fred Webb was entitled to a covenant
not to sue because Fred Webb met the statutory criteria required
for extraordinary circumstances as stated in 42 U.S.C §9622
(f) (6) (B). The terms of the covenant not to sue require Fred Webb
to pay $108,000 per year for a period of five years. This
agreement will be embodied in a Consent Decree which is scheduled
to be signed by July 24, 1991.
Fred Webb's bankers have now told Fred Webb that it must
also clear up the uncertain and potentially very large liability
to the State for the Superfund cleanup. Fred Webb is seeking a
release or a covenant not to sue for all claims the State may
have under federal and State Superfund law. In exchange for this
release, Fred Webb has proposed to pay the State the sum of
$60,000 in the first year after it finishes its commitment to pay
EPA $108,000 per year for five years ("year 6").
Factors to Consider
1. The magnitude of the State's financial responsibility is
unknown and potentially very large.
As long as EPA expends funds for a remedial action at the
FCX-Washington site, the State will be committed to pay 10% of
those costs and in addition will be required to operate and
maintain the site after the cleanup levels have been achieved.
At the present there are no estimates of the magnitude of this
expense because the investigatory work has not yet been done to
determine the nature and extent of the environmental problem at
the site.
2. The State may not be able to recover from Fred Webb.
The critical question regarding recovery of monies expended
is not whether Fred Webb will be found liable to the State but
whether Fred Webb will be a financially viable entity at that
• •
time. Once the State expends funds to remediate this site, it
will be able to seek cost recovery under federal law. The State
will be able to use the recent Eastern District ruling finding
Fred Webb is a potentially responsible party under federal law.
Company will bake
contaminated soil -
BY JERHY ALLF:GOOD
SIAFF WRlTElf
,WASHINGTON, N.C -If a new
high-tech recipe works, tons of
contaminated soil at a former
pesticide rtump in Washington
will soon be cooked clean enough
to cal.
A private cornpnny working
under a contract with the U.S.
l~nvironmcntal Protection Agen-
cy will soon begin baking hatch-
es of pcslicide-lacc<l soil. It ·s
part of a $2.5 million government
clc:rnup of a former' FCX Co. site
where pesticides -some now
bannl'd -were buried in trench-
es fnr yenrs.
Paul IL Pcronard, an EPA
spokesman, said thC·' Beaufort
County cleanup will be the first
hazardous waste site ih which
pesticides will be treated with
new technology. using infrared
heat chambers. It should result
in soil with only a trace amount
of pesticides, he sc1id -far less
than that found around a typical
farm.
"I would jokingly say -jok-
ingly say -you should be able to
feed this to small school children
when we're done," he said. "It
should be that safe."
No taste-testing is planned.
but there will be extensive moni-
toring to nrnke sure that total
pesticide levels in the soil are no
more than one part per million.
"You would find more in the
soybean fields next to us; or, if
you. were spraying for termites
in your house. you would expect
to find a couple of thousand parts
of chlordane," Pcronard said.
The treated soil will he made
available for fill at construction
sites. State officials have also
expressed interest in obtaining
soil for covering landfills.
Ahout 15,000 cubic yards of
contaminated soil -enough to
fill t ,000 large dump trucks -
no\\.' forms a 25-foot tall mound.
The site, on the .west side of
Washington just off U.S. High-
way 264, was uncovered five
years ago.
The Washington store. which
closed in 1982, was operated by
Farmers Cooperative Ex-
change, a farm cooperative that
McLaren-Hart employees load a troy full of dirt into one of the four 'ovens' at the waste site. PH010S fil' >.IIJ.'l NilA.'-lf.: ~OP THE N~WS & OBSU!VER
Dan Sullivan of McLaren-Hart oversees the pesticide baking.
filed for bankruptcy in l!JR.1.
EPA officials said pesticides
that were out of date. partially
mixed or unsold wPrc huriPd in
trenches from the I !i.t0s I hrough
the t970s.
A survey confirmed about 18
rliffcrcnt chemical compounds
,rnrl high conernlralions of chlo-
rinated pesticides, n calcgory
that includes DDT i!nd clilnr-
rlane. Because of its relali\'cly
low cost. DDT was widclv used
to kill insects in potatocs:collon
and corn: but its use was re-
stricted in I9fi9, and it was later
banned.
State environmental officials
said the llcaufort County site is
one of about l.000 in the stat('
that has been assessed for possi-
hle cleanup with money from the
federal Superfund program.
About 100, including the Wash-
ington site, had problems seri-
ous enough for the F.:PA to pay
for measures that ranged from disconn~cting water lines to re-
moving of hazardous material.
When finished, this soil troy will
be tested to see whether it
improves pesticide removal.
At least six North Carolina
sites arc on a national priority
list for cleanup.
EPA spent $1.2 million to
locate anrl excavate the contam-
ination at the Washington site
and awarded a $1.27 million
contract for treating the soil to
J\.lcLarcn-llart E:nvironmcnlal
Engineering Co, Treating con-
taminated groundwater under
t.he site will cost even morc, hut
an estimate was not available'.
Original estimates for the clean-
up put the tag at $4.6 million.
Peronard said incineration of·
. · soil was considered and rejected
because burning the soil coStS
more and produces hazardous
byproducts and air emissions.
The infrnred method produces
neither combustion nor harmful
air emissions, he said.
Dan Sullivan, project manager
for McLaren-Hart, said the sys-
tem uses radiant heat in a
vacuum to vaporize the harmful
chemicals and draw them out in
a gaseous state. Outside the
chamber, the gas is chilled so
the chemicals can be piped into
bai-rcls for disposal. The soil is
left dry and clean.
Motioning to the soil. Sullivan
said. "My contract is to take that
pile of soil right there and make
it less than one part per million
total pesticide. That is a very
low threshold."
Four heat chambers, each
about th• size of a large dump
truck, have been assembled at
the two-acre site along \\·ith an
array of pipes, tanks and hea\'y
equipment. Each chamber can
bake about five cubic yards at a
time. a process that takes about
two hours.
It. will take months to remol/e
the polluted mound from the
landscape. Then, Peronard said,
the only hazard at the site will be
contaminated groundwater.
"You will be able to walk
around and roll around and have
absolutely no risk," he said.
, .. ,, ·-· ' • •
MICHAEL F. EASLEY
ATTORNEY GHNHHAL
State of North Carolinc1
ncpnrtrncnt of .lusticc
P. 0. l~OX t'QO
11!\LEICl·I
27GIQ-Of'Q0
--MEMORANDUM--
TO: Grover Nicholson, Pat·DeRosa•
Super fund Section
FROM: Nancy ScotffJt/2
Assistant Attorney General, EPD
RE: FCX Environmental Settlement Trust Fund
DATE: April 18, 1994
Attached for your information is a copy of the 12/31/93
accounting for the FCX Environmental Settlement Trust Fund, showing
approximately $2.11 million in the fund.
As you are aware, ten percent of the Trust assets are
available to cover any expenses the State may incur at the former
,ECX-,properties in Washington and Statesville, including, of course,
the state's statutory ten percent share of an NPL site remediation
funded by the federal Superfund. The Trust Agreement includes
specific procedures for claiming expenses from the Trust. I have
a copy of the Agreement in my file. Please let me know if you need
a copy.
/en
Attachment
c.c. Rob Gelblum
An Equal Opportunity / Afflrmntivc ,\ctinn F.rnployl'r
' ,-., '
FCX ENVIRONMENTAL SETTLEMENT TRUST
Assets as of 12/31/93:
Checking Account -SNB
Checking Account -FUNB
Checking Account -UCB
Checking Account -Centura
Certificates of Deposit -FUNB
Certificates of Deposit -SNB
Certificates of Deposit -Centura
Total
Liabilities as of 12/31/93:
1993 Federal and North Carolina
Income Tax Liabilities
Receipts 1/1/93 -12/31/93:
Interest Income
Disbursements 1/1/93 -12/31/93:
Surety Bond
Trustee Fees
Accounting Fees
Bank Charges
1992 Income Taxes Paid
1993 Estimated Tax Payments
Total Disbursements
Receipts in Excess of Disbursements
1/1/93 -12/31/93
$ 16,759.40
33,192.66
61,665.80
19,778.24
404,731.61
976,822.53
596,963.36
$ 2,109,913.60
$
$
$
24,944.00
73,553.12
10,124.00
2,569.65
1,031.05
90.06
26,181.00
15 360.00
55 355.76
18,197.36
ALAts, Black and Associa•, P.A.
CERTIFIED 'ffl"suc ACCOUNTANTS AND MANAGEMEW CONSULTANTS
3008 ANDERSON DRIVE, SUITE 203
RALEIGH, NORTH CAROLINA 27609
919-781-3581 FAX [phone]
April 14, 1994
Mr. Holmes P. Harden, Trustee
FCX Environmental Settlement Trust
Post Office Box 19764
Raleigh, North Carolina 27619
Dear Holmes:
Please find attached the information requested in Article IV,
Paragraph 4.5 of the FCX Environmental Settlement Trust
Agreement. This information was obtained from bank statements,
tax reporting statements, and bank account reconciliations that
you provided. We have also prepared the enclosed tax returns
based on this information.
Please contact me if you have any questions or if I can be of
further assistance.
Sincerely yours,
C~.°A°l::-
CAA:shb
MEMBER: AMERICAN INSTITUTE OF C.P.A.'S AND THE NORTH CAROLINA ASSOCIATION OF C.P.A.'S
•
PAMLICO-TAR RIVER FOUNDATION
P.O. BOX 1854, \\½SHINGTON. NC 27889 [phone]
Michael Townsend
Remedial Project Manager
USEPA Region IV
345 Courtland Street, NE
Atlanta, Georgia 30365
Dear Mr. Townsend:
7-4-93 · Ktl :t\\JtU
l •) '\ \':j':jj J\j " '
SU~ERHINO S£t1l0N
The Pamlico-Tar River Foundation (PTRF) is a giass-roots organization of more
than 2000 individuals who are dedicated to protecting the ground and surface water
resources of our watershed. As you know, PTRF has been concerned about the FCX
Superfund site and EPA remediation efforts for the past few. years.
While we were pleased to learn of EPA's proposed remediation program for the
FCX site, PTRF was dismayed by recent reports that many of the same pesticides and
other toxics were also disposed at an adjacent, relic city dump. Media coverage
suggested that this site may be as great a threat to ground and surface waters as the
FCX site, but it is not currently included in remediation efforts ..
We urge the USEPA to address this concern aggressively; the entire problem of
poorly disposed pesticides must be resolved. Please share with us the complete
reports of your preliminary assessment and plans for remediation for the expanded
site.
Sincerely,
David McNaught, Executive Director
Pamlico-Tar River Foundation
cc. Mr. William L. Meyer, Solid/Hazardous Waste, NC DEM;
Ms. Diane Barrett, Community Relations, USEPA
EnuCATr<i:--. ArwlKACY. RESE,\RCJ! . .. t_J :()()'',, ,,,,·1·1:J,,,! /!,Ii"''
V • •
January 21, 1992
To: Bill Meyer, Director·
Division of Solid Waste Management
From: Bruce Nicholson "f, IN
Superfund Section
Subj: Update on FCX-Washington NPL Site, Beaufort County
In November 1991, on the FCX-Washington NPL Site_, the U.S. EPA
Emergency Response Branch delineated the boundaries of an
additional pesticide disposal area with numerous soil borings.
This week, the Emergency Response Branch began field work to
excavate this new disposal area. They anticipate excavating 1000
cubic yards or less. It will be placed within the fenced area on
site that already contains 800 tons of., excavated material.
Although this work is being conducted by the. ~mergency Response
Branch, there are no immediate plans to treat the waste material.
The U.S. EPA Remedial _ Branch started the Remedial
Investigation in October 1991. Much of the information gathered by
the Emergency Response Branch during the recent field. activities is
intended to be used for the Remedial Investigation.
At_ this point, it is not known whether the wastes will be
treated soon by the Emergency Response Branch or later by the
Remedial Branch.
An EPA press release is attached.
information, please let me know.
BIN/mem/fcxinfo
If you need further
-ailod SSH••
Environtnin~ Prot,,,.:t!on ·
Ag•ncy
F\tiglon IV • Offico of Public Attalrt
:;<5 Cour11Ynd SL NE
Allantu, G<,orgia 30365
[phone]
EPA BEGINS SECOND PHASE OF RF.HOV.AL A•:TIVITIES AT '.l.'HE FCX, INC.
SUPERFilllD SlTE lN WASHil\G'.::·ON' 1 NC
Th~ u.s, Environmental Protection
Agency will begin e:-c.;;;vi,.t5.on cf r,rr:_:n:•:ixima.tely 1,000 cubic yards of
contamin&tGd mate::iaJ.s f.::·o:r .. t.ho Fe:-;, In::. Superf,;.nd aite in
Washington,. No~:th Care lir,a, 'l'i~n :~i:A pr::.·je:;t is scheduled to begin on
January 22 1 1992.
In addition to the sxci,veticn, e;p_; w.lll reecreen and secure an
· existing 800 cubic ye.::-do or c::n:rently atockpilE:d materials with the
proposed excavated materi5.l, Tha ex~avation and stockpiling are.
being conducted to remove the 1.rr@ediate threat to groundwater from
the contaminated material. 1'. new cover for the stockpile and fence
repair will aloo be performed, EPA expects this phase to take !ive
to seven days . · · . .;.
In January l989, EPA excavated approximately 2,200 cubic yarda
of contaminated debris and ?esticlde con-tarninated soils from two
-trenches·at the· site. 5eo-inning l.n December lSS0, approximately
1 1 600 cubic yards of, the conta.'ninuted debris were removed . from the
site before operations ceased beca~se of difficulties encountered in
-· loc.!tting a permitted !la.:az:doua wac;ttl disposal facility to accept the
material. All the contruninate,1 soil and debris currently at the site
are ba1ng stockpiled for fu.t. ... •.ra ,.:reatment !:>y EPA under the Superfund
process,
The FCX Washington cite occ\!pies approximatel::t 12 acres. near the
intersection of Grimes Road llnd Whispering Pine Road juat inside the
city limits of Washington. From 1945 through 1985, the company
repackaged and distributed agr.t.cultural chemicals. In the early
1970s, a large trenc'h on the property was filled with pesticide
wastes ~nd other agricultural chemicals. Samples collected by EPA
indicate soil and groundwater contaruination. The site was placed on
EPA's National Priorities, List of hazardous waste sites in March
1989. -o.:.
CONTACT1
Jo.nu,:;,ry 15 1 1992
Charlis Thornptior, ct: EPA ,;,egic,n IV at ( 404) 347-3004
....... -
"
LA\.Y 11. Tl tOHNHUHG
An ( mNEY nENEHAL
• •
State of North Carolina
Department of .Justice
P.O. BOX629
HALEIGH
27002-0629
--MEMORANDUM--
TO:
THRU:
FROM:
DATE:
SUBJECT:
Edythe McKinney, Assistant Secretary
for Environmental Protection, DEHNR
Lee Crosby, Chief J..-v
Superfund Section, DSWM
Nancy E. Scott 1/f6
Assistant Attorney General
Phone: 3-8352
November 14, 1991
FCX Trust Agreement for Signature
By this memo I am forwarding for your signature the
Trust Agreement which implements the Settlement Agreement in
In Re FCX, Inc. by establishing the FCX Environmental
Settlement Trust. You signed the Settlement Agreement in
February, 1990, and that Agreement was entered by the U. s.
Bankruptcy Court for the Eastern District of North Carolina
in October of 1990. The Court has entered an order
approving the Trust Agreement, but postponing any
reimbursement to the State and Federal government from the
Trust Fund until a consent decree is entered in a separate
lawsuit between EPA and Fred Webb, Inc. (Fred Webb is a
responsible party at the FCX -Washington site.)
FCX has funded the trust with $2 million, plus interest
of $24,750 awarded by the Bankruptcy Court in September,
1991. The Trustee has purchased the bond required by the
Trust Agreement. Pursuant to the terms of the Settlement
Agreement, as reiterated in the Trust Agreement, $202,475 is
reserved as the State's share of the Trust Fund for
reimbursement of State expenses incurred and to be incurred
as a result of disposal of hazardous substances at the FCX -
Washington and Statesville sites.
Please return the signed Trust Agreement to me. Call
me if you have any questions.
NES:gg
Enclosure
An Eq1ml Opp,munity / Affim1ntivc Action Emnloyer
• _.<:·:~??,f::~,.
/:x~ r 1 "-1s,,\, /' ;Arit;ft s:'\ 1~%~\1 :~JI :\i ........ :7
-·,:·.~,':':.::.:::.
•
State of North Carolina
Department of Environment, Health, and Natural Resources
Division of Solid Waste Management
P.O. Box 27687 · Raleigh, North Carolina 27611-7687
James G. Martin, Governor
William W. Cobey, Jr., Secretary
MEMORANDUM
24 July 1990
TO: Edythe McKinney, Assistant Secretary
Environmental Protection
FROM: Lee Crosby, Chief
Superfund Section
RE: FCX Washington
NPL Site
1111
William L. Meyer
Director
Jan Hasty with WDLX-FM News in Washington is concerned about the pile of
pesticide contaminated soil at a National Priorities List site in Beaufort County known as
· FCX Washington. Bill Klutz is the EPA Region IV Removal Project Manager. The
pesticides were scheduled for incineration this past spring. However, there were problems
with the c'ontractor, which EPA subsequently fired. According to Bill Klutz, the pesticides
are scheduled for incineration this winter.
Jan Hasty was referred to Bill Klutz (404/347-3931). She has also discussed this site
with Steve Reid.
cc: Steve Reid
LC/jo/memos.lee
.. . -<=-::::1_;:_~;f.~-,~::_:,,~~7:_"5!;;;;,,_j::~ . . ...
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a«./__~_5._d_(i~--=>-~e,£-__ Q,.,__ _z;~ ;z: ,
____ 1-M_,,_tk___e~£:.~--~ ~"----'--"='-----
---·-f?-¼&Ac:_a,.uL __ ~-~ . ~ ~~-"'s'-=~~· --·
-----~-~~pq"4-+J --- . --~-~ .. _w~~· ---~:rfo---~-~~ · t¼ ~~~-~d-~ .
___ 074£~a£_~·-1~£/.{~ __ /4.-<..~~.--..
__ •-£J_fa.££~ ~-~L-o/t¥ ~ ~ /2tU;{~--·····
--~/u.<1 ftu~~-.ck-. .d~ -fkcd:__b-1 c.2A-Uu.b.~0:J __ .L,o_Jlo /4.,. ~--·-·
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: /,/},1' /J· /7/J . /} _.ff ,1 /./ ,1 ---1-~?l'd:d.R_/_~_.$.a,,µ:r----2.~__r_¼b.._~c,..,r_t0-_~<t--A== ..
--..... ~.1:0 fi ~=1-zCs.._c.kaA!~ -4-ft:. 6.<!L~_/~o.. -· ....
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•
To: FCX-Washington File
From: Bruce Nicholson
•
January 5, 1990
Subj: Telecon with Bill Klutz, U.S. EPA Region IV, Emergency
Response Control Section, [phone]
Mr. Klutz called today to inform us of upcoming activities at
the immediate removal portion of the FCX-Washington NPL Site. He
indicated that in the .Jan-Feb 19B9 removal action that
approximately 2,500 tons of pesticide waste were excavated and
placed in a sealed liner on site. The ljner reportedly has a fence
around it. He said EPA has received bids for on-site incineration
of the material and has selected the contractor for the job. He
said he and the contractor would like to have a contact person with
the State to arrange dist~ibution of documents pertaining to
compliance with State regulations. He indicated that they would
not apply for permits but would supply any documents we require for
establishing they are in compliance with state regulations. I told
him that I would serve in that capacity, and that Grover Nicholson
would be available to answer questions in my absence.
Because the file has little information on the immediate
removal action, I asked Bill to send any data and documentation on
the immediate removal that was conducted. He agreed to send lab
results, reports and other technical data as soon as possible. I
told him to be aware that we would need extra lead time on any
documents that concerned regulatory compliance (such as air
emissions) so that we could obtain the response from the Division
of Environmental Management.
The proposed operation would consie.;t of a mobile incinerator
to treat the pesticide wastes. Air emtssions and ash would be
tested to establish compliance with DEM regulations (without
obtaining a permit). I told Bill of the Peele Pesticide Disposal
Site and asked if it would be possible ~o do on site incineration
there too. He said it would be possible and he would like to visit
the Peele site when he comes to vi si 1; the FCX-Washington site
within the next two weeks. The limitation on on-site incineration
is that it usually takes about 2,000 tons of material before
contracting for a single site becomes cost effective. He said it
might be possible combine the Peele Site with the FCX-Washington
Site in the same remedial effort. He will discuss this with us and
when he comes to Raleigh.
BIN/tel/FCX-Wl
cc: Lee Crosby
Grover Nicholson
..,; • •
COOT RECDVERY ANALYSIS SUMMARY
FCX -STATESVILI.E
NCD095458527
October 17, 1988 -December 31, 1989
I. Personnel & Fringe Benefits (1210, 1810/20/30, 8312)
Staff Member Date Hours Total Fringe
Incurred Salary Benefits
s. Atwood 10/17/88 45 $ 638.10 127.62
c. Varlashkin 10/27/88 18 223.92 44.78
s. Atwood 11/1/88 1 14.18 2.84
II. Travel (3111)
10/24/88 Mileage -365 miles at .24 =
III. SUpplies (2390, 2600)
4 tyveks@ $2.76 = $11.04
2 pr. nitrile gloves@ $1.75 = $3.50
2 pr. =tton gloves@ $.75 = $1.50
IV. Other (3990)
lab Samples 10/25 - 6 organics@ $194.00
STATE Bl]rx:;El' OODE
1830-8312
100% state Funded Expenditures
Total
Cost
20%/Personnel
$ 765. 72
268.70
17.02
1,051.44
87.60
16.04
1,164.00
$2,319.08
''-• am REXDVERY ImlMEN.I'ATI~ (SUINIT 'IO IM:)
STATE SITES
SITE NAME FC'i( S¼te;s11;Ji.,__ EMPIDYEE NAME s+1a A+-t-,)ool
STATE ID FOSITION Tox;c.olo3 ;.s T
EPA ID t-)c_ D D'l 5 '{5 8' S 2. 7 PROJECT I.FADER S+,g,, A±w•o J
INVESTIGATION DATES
D'.XUMENTATION FOR:
(MON'IH)
EXPENSES INCURRED:
Transportation (In-State, out-state) $ ____ _
SUbsistence (In-State, out-state) $ ____ _
SUpplies (Film, Maps, Ice, Etc., attach receipts) $ -----
Health & Safety Equipment (List#)
Laboratory.Samples Soil: Water: Other:
ACTIVITY
1. Background Search, Evaluate Data
--:org. __ o:rg.
-~o,rg.
DATE(S)
2 . Prel:iminary Hazard Ranking Score Assigned
3. Hazard Ranlµng Score Finalized & Site Placed on Priority List
4. Prepare Study/Safety Plan
5. Conduct Field Work: Field Time
Travel Time
6. Sample Preparation/lab Delivery
7. Review Analytical Data
8. Erwironrnental Impact statement
9. Written Declaration
10. Consent/Compliance Orders
11. Public Participation Plan
12. Evaluating & Approving Remedial Plan
13. Coordinating Remedial Action Plan
II I I '
Total
~:ior~
DATE fOSTED __________ _
(Attach Daily Breakdown and Telephone List)
--::j.norg. --:+norg. __ .morg.
HOURS
•
• am REXXJVERY IXXlJMENI'ATI~ (SUEMIT ID IM::)
Sl'ATE SITES
sITE NAME Fc..:7--Shte.s\l: I le.. EMPIDYEE NAME 3tAo A±wac> d-
sTATE ID s1S'-19otoll'-l3 rosmoN Tt>)<;c.olo:=ii.cr
EPA ID AJC...i>095'-/:S~52 7 PROJECT IEADER S+!io Ah.wad
INVESTIGATION DATES __,_/.,,_0+-/~2-~':/:y/c...c/c...c~~g~~------------~--
COCUMENI'ATION FDR:
EXPENSES INOJRRED:
Oc:..to\,,e.r
( r-KJN'l'FI)
Transportation (In-state, out-state)
SUbsistence (In-state, out-state) $ ____ _
Supplies (Film, Maps, Ice, Etc., attach"receipts) $ ____ _
Health & Safety Equipment (List#) Y :7vc.\:./ lrc n:+r:\e.. J)bues, 2fr cotf,,,_-'.lloU!'i.
Labo t 1 . @)So @'2.00 . © ra ory Samp es SOJ.l: -~org. __ .:µiorg. Water: 6 org.-k __ :µiorg.
Other: -~org. -~inorg.
ACTIVITY
1. Background Search, Evaluate Data
2 . Preliminary Hazard Ranking Score Assigned
3. Hazard Ranlµng Score Finalized & site Placed on Priority List
4. Prepare Study /Safety Plan
5. Conduct Field Work: Field Time Travel Time
6. Sample Preparation/lab Delivery
7. Review Analytical Data
8. Environmental Impact statement
9. Written Declaration
10. Consent/Compliance Orders
11. Public Participation Plan
12 . Evaluating & Approving Remedial Plan
13. Coordinating Remedial Action Plan
DATE (S)
10/17,Jg
'
10/2}
ta/vi
I• P-"=i
tob.'5 )
10L27 2.~ 31 . )
HOURS
!lo
s
3
' 2
/6
Total 4 s
. q~r/Jkiiil
DATE FDSTED pQl-Olhi,Q t" ~-C, R._ Tu ~; / '3 / p,,
(Attach Daily Breakdown and Telephone List) ~ ~
* Si't-f\e_~ -\--..,o """'";~or\':) ua.lls:
. 2JI.. -\,,t>"-/1"-e. .... -\.-~~
J.L -red-;c:l~
\JOA -1)0\,1-1-:le.~
• • Cost-7<.ec.o-.ia-y Sv..wi>M.11r'j
0 c.., +-i) \, t.r 1"1 '6" g-
for -_S_ +-~"' A f-v-Jc:io d_
PA-\-.,_ Kou.rs.
'SttJ:.~to"'~ d. .:,vi.-c..h I ev'R("'-.A-te JA:-fA Ju/17 f-_
BA(.k-:,ro"'-~d s.e.11.-c.\.. 1 e vfr 1'1,,,/--"-d1r -f--11 10;.,'?;-fr-
Pn:.r11r-e... ,s;~ s+-d1 p/11" io I :i.1 5
Lo ,,,d v«:: .. t t; t. 'd_ w,;rk, r.0/2<-1 ~
SA"tV\e\e... f re.fi'H'A-t; DY\ . 10 /2.s 2
P.,e. v;ei.J ·A f\A-\ j J; LJ\-) cl .11-+-f/ 10/2. 7 2
/2.e.." :e. w ,4 riA-IJt,c.A-1 .. clA-+.I\' Jo/2-'iY _ _5
Re.v;ew /.\ ".O. I y /-; '-* I dJti-:-A ;o {s I ~
To'h+/_ 45
J
• ffi5T REmVERY ~ (SUIMIT 'JD IM::)
STATE SITES
SI'IE NAME Fc....y. Stl'f+esv:lle... EMPIDYEE NAME C.\,,,...\o\:te.. \J11r\1tshkil\
STA'IE ID · S l S Y~O 1006(3, rosITION H:yd..-o.geo\oj i.s. T
EPA ID /\J c. 1) o 9 s tJ $ 8' S 2. '7 PROJECT LEADER S +-A-" A :I: .,;,o e d
INVESTIGATION DATES _J/'-"OC/-/..='l.:_:_i':\-+/.,._R-_.r'. _______________ _
IXXUMENTATION FOR: Clc.J-v\..~.--
(MON'IH)
EXPENSES INOJRRED:
Transportation (In-State, out-state) $ ____ _
SUbsistence (In-state, out-state) $ ____ _
SUpplies (Film, Maps, Ice, Etc., attach receipts) $ ____ _
Health & Safety Equipment (List#)
L3boratory.Samples Soil:
Water: Other:
ACTIVITY
1. Background Search, Evaluate Data
__ o.rg. __ o.rg.
__ org.
DA'IE(S)
. 2. Preliminary Hazard Ranking Score Assigned
3 . Hazard Ranlµng Score Finalized & Site Placed on Priority List
__ .:j.norg.
__ :µ10rg.
-----'morg.
HOURS
4. Prepare Study/Safety Plan/T.-;f R~0,.+ 10/a11,s,2& > ; h
3 f, 5. Conduct Field Work: Field Time Travel Time
6. Sample Preparation/Lab Delivery
7. Review Analytical Data
8. Environmental Impact statement
9. Written Declaration
10. Consent/Compliance Orders
11. Public Participation Plan
12 . Evaluating & Approving Remedial Plan
13. Coordinating Remedial Action Plan
10/2'+
10'24 •
/o/z[, •
IV /2 ') '
2.
I
Total /8
~,~
DA'IE rosTED p~/2 $_&}';, Ctl, ,7:,, d/f.~1,µ /&-'f
(Attach Daily Breakdown and Telephone List) ca;/,u,,.U /4.v
__ ____,., • • FC...'/--s +A-ks-1.1: I 1-e.
Cos} 'R.e.c. v..:iecy S<.A.""...,..,.r j
0 c:1-& ~e. r /'7 f /J-
f-o r c.. ht'¼r-1 0 r\-e.. V "Ir I -1-s \., k ; ,,,
• I c.-·hv:t-, D,,d-c l-lo ,..
T";(' fr€fArAt-;"" /sA-f:e.+t pl'ln. ID/21. 3
F;l!-/J W~ ,-/<... . 10/z. 't 9
t.J,; te... +-... ;f r~fll r r _ 10/2 S 2
$ A M e \ e_ p,ee, ~-IA\, de\;~. Joj2s 2..
~r;+e. . tr; f' refor+ . 10/2.(p l ?;,J_-y_(' ~ rev:ec.v _ I 4\, d ,,i. t-"'t j(i)) 1-'1 I
cw ·-·-
1
PURCHASING 11JUISITION NORTH C OLINA DEPARTMENT OF HUMAN RESOURCES
DIVISION OF HEALTH SERVICES
TO: Department of Human Resources -Purchasing Requisition No. __________ _
FROM: Division of Health Services -4430-0000 DATE 11-16
PROJECT: ___ _:Seouc:,p'-'e"'r'-"f'-"u:.:.;ne:d'--------------
PLEASE CONT ACT: Patr icia Bowden h 919-733-2801 Pone No. ________ _
SUBHEAD: FUND _ _:1~8~30=---OBJECT __ 2_3_90 __ 8307 RCC _____ _c_ PROG __ 2_08_6 __ _ Code 14430
FUND _. ____ _ OBJECT ____ _ RCC _____ _ PROG _____ _ Code 14430
SHIP TO: DIVISION OF HEALTH SERVICES CHARGE TO: DIVISION OF HEALTH SERVICES
Solid Waste Management Section
su~erfund Branch
401 Oberlin Rd./PO Box 2091
Raleigh, Ne 27602
ATTENTION: Budget Office
Division of Health Services
P. 0. Box 2091
Raleigh, North Carolina 27602-2091
QUANTITY CAT. OR PART NO. ITEM. DESCRIPTION UNIT PRICE TOTAL PRICE
{om ,r 8'7.:5·•9t>IL latex boots size XL 6.50pai~ 195.00 30pai· LA2057 Low cost
(om.;, L/ 7!>-'ID Flock Lined Nitrile Gloves size 10 21.10 dz 42.20 2 doz LA5677 .
t!.0/11 // L/ 7.5'-{/() Flock Lined Nitrile Gloves size 8 , . ...,) 21.10 1 doz LA5677 .,,,,
"f< (2omn, ii JUP ,-L,. 17,rn 21.95 65.85 3 LA-1453-2 Eye wash station
{!o/YI/J 305 .. 57.-.:)f Pocket guide to Chemica Haz. 10. )0 60.00 6 LA-2011 Pocket guides-NIOSH
carton/5 l per carton # ES 29 6 mil bags-yellow-36x63 -55 gallon 73.25
Lab Safety Supply
PO Box 1368
Janesville, WI 53547-1368 .
l-800-356-0783 Federal ID#36-2685918
EXPLANATION: Required for major equipment items and items of unusual nature. This request (represents an 457.40
initial purchase) ( is requested to replace similar equipment which has been or will be disposed of, worn out, ere.) It will SUBTOTAL
be used for (brief explanation). Attach extra sheets if necessary:
SALES TAX 22.87
.1/BtJ ;27
A rnv b, GRAND TOTAL
Funds for this purpose ·are available.
Section Chief Date
Budget Officer Date
Supportive Services Administrator Date
Controller (If total is $2500 or more) Date
DHS 1751! (Rcvi~d 10/86) Date
l> •• _, ___ ,..,_u,. ,n ,A,AM
• •
, ~ on, ... ~··--·~-·· ... -.,•""",-,"•-<_..,.. ···-~•'.r, ... •..-;~···~•-.. ,~ .. ~·-, .,,. ~{.r.,:~.~~-,~r~,.•.::~~,-~~p:~::-~-::«",:,.,.~-l'·~::::r~--~~..,._., ... ,.... ~0 :-· ·., -
B_udget Clnst1ifici..tio11: Project __ .,,Cc,EceRecC=LL\=---------subhead __ __:'l_~8'..:3'..'.0::::_2=-=.3'!.9c,0~8'..:3'..:0c_7,__-_,:2c,Oc,:8ec6:.._ ____ _ Code ~-1021
S1111' TO: DIVISION OF HEALTH SERVICES CHARGE TO: DIVISION OF HEALTH SERVICES
%
Solid and Hazardous Waste Mgmt. Branch
Environmental Health Section Rm: 203 ATTENTION:
Budget Office PO Box 2091
-------".a.Le.igh.,_NC 27602 2091
Contact: Patricia Bowden 733-2801
Division of Health Services
P. 0. Box 2091
Raleigh. North Carolina 27602
INSTRUCTIONS: Detailed specifications, when applicable, to be submitted on an attached sheet. Show manufacturer's name and catalog
number. When ordering repair partB. gh·e make, model and serial number of equipment for which parts are needed.
QUANTITY CAT. OR PART NO. ITEM . DESCRIPTION UNIT PRICE TOTAL PRICE
case (25/, ase) /11015 MEDIUM~ Regula~--,, 11-1q-<i7 69.00 138.00
COMM. II 345718-1-5 2..7~ "-.e'.f!.C .\ ' --jo..d/--., -• -......... . .
case (25/, ase) 114015 Medtrt'rn size· Saranex Coated Tyvek 221.33 221.33
Comm. II 345 08 15
-,, '-om n
C:O/ ,._ 'o M
m .t-, ... ...,.,.., --
·/
VENDOR: Jones Safety Supply
PO Box 4190
Greensboro. NC 27403
VENDOR CONT. ~CT: Randy.:Monger FED. ID II 540 73 7369
Contact: P ,tricia Bowden DHS 733-2801
I ... EXPLANATION: Required for major equipment items and items of unusual nature. This request (represents an 1n1t1al purchase) (1s re-
quested to r-eplace similar equipment which has been or will be disposed of, worn out. etc.) It will be used for (brief explanation).
Attach extra sheets if necessary:--------------------------------------------
Funds for this \Hlrpos<! arc available.
OUOGET OPFIC£H
DllS Form l7S~t!{.::·\·. HJ.::::~1 Budget Offi,;t:
DATE
--------------·-------· -----· .... _~-------!$:¥&¥£~?£="'' ~: * --~£ }.Ji:@w-. --•t: --~---•· •
Approved Ly:
'),:_ J 7v, . -., . I ~-----...!..D.-......J..f~---
B RANCH HEAD I I
SECTION CHIEF
su,PQRT!VE Sf.:RVICES A.0~11,".:;SYRATOR
10 le-; ;; 7 I I
---·· ·---·-·-··-···--·.,..----_. ----· ··---· ·•••••·• -----··--. ··-----. ~-···-------· -<... • • t --••
:: -----"'-'--'-=--....:,="'•·· ---- -----.-.-----·· ---, ____ -·---:--~-'i::-:..2:--:<!.'~•d
• •
S:--IIP TO: DIVISION OF HEALTH SERVICES CHARGE TO:
ff• .••• , .. -~----~. ~~ ·•-.--,.,....,_-,..._Jt.~,1.-l.\r.:'::J":N(t,~j
DIVISION OF HEALTH. SERVYcis'1 ,.•.,,
Solid and Hazardous Waste Mgmt. Br.
1-.:__ ___ .fil:1'1.:illcnm<e'-lo1Jt:.;a3.,lL11Heal_tb,~$~e~c~t~i~o~n~-----ATTENTION:
I
;
I
PO Box 2091
C 27602 2091
Bath Building Room 203
Budget Office
Division of Health Services
P. 0. Box 2091
Raleigh, North Carolina 27602
1:,·sTRUC'TIONS: Detailed specifications, whe~· applicable, to be submitted on an attached· sheet. Show manufacturer's name and catalog
r.~mber. When ordering repair parts, give make, model and serial number of equipment _for which parte are needed . .
QUANTITY CAT. OR PART NO. ITEM . DESCRIPTION UNIT PRICE TOTAL PRICE
,7. -·-:: ..! 1/7100 Brown Jersey, Clute Pattern, Knit Wrist Cotton .75 ea ~ 18.00
l
' I I
' I
'
'
-, Gloves. COMMJ'/ 200-27. MAN'S SIZE LARGE. pair -
5% ' AX .90 . ---· l R on
ENDOR CONTACT Katrina Smith 872-1120
b~n TD II 54 0892716 .
EARLY DISTRIBUTING COMPANY
2816 Brewton PL.
. Ralei"h-NC 27604
l/,A
.rls [\ ,-~/\
D ~ \Ii{ I \ A
L, \ \
i
'
i ... EXPLANATION: Required for major equipment items and items of unusual n~1ture. This request (represents an rn1t1al purchase) (ts re-
q'uested to replace similar equipment which ·has been or w:ill be dif,posed of, worn out.. etc.) It will be used for (brief explanation) .
. .'.,.ttach extra sheets if necessary: -------------------'----------------------------
:-·unds for this purpose are available.
BUDGET Of"FICEH
:.•HS Form 1758 (R,,,·. 10-831
=,c:d,;~t Office
DATE
Approved by:
_;f_,,,,,_. si!{_4~-VJ __ _
BRANCH HEAD /
SECTION CHiEF
SUPPORTIVE SERVICES ADMINISTRATOR
CONTROLLER
Date:
/C, /( t?:l 7 l
'
• • UNITED ST ATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLAND STREET. N.E.
ATLANTA. GEORGIA 30365
ANALYSIS OF L & F WORKPLAN
FCX SITE, WASHINGTON, NC
Page 1 of 4
ON-SITE INCINERATION OF PESTICIDE-LADEN SOIL
J
• PftG-c 2 or=4
Tria·l Burn Plan -•
Al Jackson committed to a very different time schedu~e during
pre-award interviews. Originally, he stated that the.unit would be
completed and shipped to the site within three months of his final
notification to the company to begin construction. His current time
frame is 6 months from date of award for delivery. I also question
anyone's ability to have a unit shakedown and prepare for trial burn
in one week. If he sticks to the schedule as proposed, any small
setback will push him past the final date for completion.
The written description of the cutoffs is inconsistent with Table 2 -
differing values. The Table lists higher values for the.cutoffs. CO
cutoff also appears to high. RIC cutoff needs to have a lower end.
Need to have cutoff for particulate ~P, or some other. No record for
the feed -how will it be measured and monitored? How often is data
recorded? Needs to be continuously. The range given for the
temperatures is too wide; cutoff needs to occur at a value more
consistent with the planned operating temps.
Need better diagram. Where is the site layout, and the physical
diagram of the equipment?
No description of what contaminant DRE is based upon, nor how limits
for the unit will be established during the trial burn.
Operations Plan -
Need to check with the local water department to ensure that L&F's
plan to discharge water back to sewer is acceptable.
How does L&F plan to dispose of the scrubber sludge?
Need to watch the size of the fuel tank; if triggers SPCC, must have
an approved plan.
What are the plans for the interim ash storage: size, construction,
how many, etc.?
Probably need to simplify plans for reprocessing .. If L&F only
to reprocess part of the pile, what kind of sampling scheme do
plan to use to distinguish? All the sampling will be at L&F's
expense ..
wants
they
'
• • Plea,se note that the FCX Pesticide cleanup project will
probably be subject to the proposed North Carolina air toxic
regulation (attached). Procedures to determine compliance with
these regulations are provided. The following comments refer
to the Trial Burn Plan:
1. 'c'he specific sampling locations, sampling methods,
analytical procedures, examples of data objective tables
and example calculations must be submitted. The Trial Burn
Plan is too generic, inaccurate, contradicting and poorly
prepared.
2. On page 2 of Section I under Schedule, the date to Submit
the Workplan should be October 25, 1989 not 2_989-. (Note
that many typographically errors exist and will not be
addressed in this memorandum.)
3. The Milestone Table is not realistic with regard to the
time between Deliver TDU, Setup and Shakedown period and
Begin Trial Burn period. A period of two to three weeks is
generally a minimum.
4. All pages should be numbered and coded in a manner similar
to the Laboratory Quality Assurance Program. (Note thc.t
pages have been hand nwu~ared as necessary.)
5. On page 3 of Sec-::.ion I u:-1der Sampling Locations and
Procedures, reference is made to Figure l which does no~
exist and also refers to liquid waste which does not e):ist
at the site.
6. Under Sampling Locations and Procedures, the last sentence
states that the analyses planned for the trial burn is
contained in the Sampling & FJ1alytice.J. ?!:'o::-2du::::-es, hawever,
this referenced section cioes not e>:ist.
7. On page 5 of Se:::~ion I, -:.he Analyses Plar::1eC: fo:::-ir·:::-ic..l Burn
Samples should be redon~ and referen=~ S?e~~=i~ m2::.hods.
8. On page 6 of Se::tion I under Exhaus~ Gas, ~he Au~oma~ic
Waste Feed Cutoff System (AWFCS) shot2ld :Je e.c::.ivat.ed when
CO is greater than 100 pprn corrected to 7 % O?. Also,
this contradicts the value found in Table: o! Section I.
9. On pages 7 and 8 of Section I, Figure 2 and Table 2 should
correlate but they do not. In addition, the AWFCS must be
tied into the venturi scrubber and packed bed scrubber
operating parameters. Alsc ,· the lowe:-tempe:::-etu::-2 ::u..:oi:£
for the RIC must be specified.
10. On page 6 of the Quality Assurance/Quality Control Plan
(the next section of the Trial Bur~ Plan), the Sampling and
Analysis Plan is too generic and does not describe -:.he
policy or procedu:::es to be u:.ilized .i.n -:.he normal
day-to-day activities.
11. In the Site Specific Operating Plan 'the next section of
the Trial Burn Plan), the AWFCS must be discussed in
detail. Also a ciemons"::ration of. the _;.~•J?C5 should bs
planned before waste is burned.
• •
12. In the Site Specific Operating Plan, ::he 5::ep-by-s::ep procedures related to the shakedo¼~ of the incinerator should be described.
13. The introduction of Section I states that the incinerator is capable of burning 6000 lb/h of contaminated soil which conflicts with the manufacturers rated capacity of 600 lb/h (See page 1.1 of manufacturer's brochure in the Trial Burn Plan.)
The following comment relates to the Laboratory Quality Assurance Program:
1. In general, the program sho~ld be more specific with the exact data objectives 2nd testing plan for the project. The sampling procedures, 2nalytical procedures, desired aualit.\' 2.ssurcil:::e/c::,n-:::-::-l objectives and example tables of the c:ia::a objec::ives and eo:ample calcL!lations should be descri.beC.
. ..
• • UNITED ST ATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
December 06, 1989
Mr. Alvin P. Jackson
President
L & F Environmental
133 Appleton Street
Boston, MA 02116
345 COURTLAND STREET. N.E.
ATLANTA. GEORGIA 30365
Services
Subject: Review of Incineration and Stack Test Plan
FCX Site, Washington, NC
Contract #68-S9-4003
Dear Mr. Jackson:
This confirms our meeting in November in which you were given EPA
comments on your initial submission. The submission was accepted with
conditions that corrections be made as indicated in the attached.
Since EPA required an additional 10 days beyond the 10 days stated in
the IFB for review of your submission, a modification to the contract
is enclosed and extends the period of performance by 10 calendar
days. Please sign and return a copy of this cover letter only to
acknowledge receipt.
Concerning your recent submittal dated November 06 we have the
f~~~~#ing comments:
1. P-24, paragraph 2: The text in this paragraph
indicates that the front half of the method 5
particulate sample train will be rinsed with acetone
and deionized water. Method 5 only requires that an
acetone rinse be performed for this portion of the
train. The water rinse, although not required, would
be acceptable even though it would be more likely to
cause a high bias rather than a low bias.
2. P-24, paragraph 3: This paragraph indicates that the
two NaOH impingers from the method 5 train will be
analyzed for HCL. However, the test plan does not
indicate if the two impingers will be analyzed
separately or if they will be combined into one total
analysis. The recommendation from EPA is that the two
impingers be analyzed separately. If this is performed
relative HCL concentrations in the two impingers can be
used to evaluate whether or not sample breakthrough has
occurred within the train.
• •
3. P-3A, P. and I.D.: the Process and instrumentation diagram (P&ID) indicates that the incinerator will be continuously fed by the use of an auger feed system, whereas we had discussed the use of a weigh belt feeder. The statement of work requires a waste feed rate calibrated to(+-) 0.5% accuracy. If the auger feed system is to be used will it be calibrated also or what other method or manner of monitoring waste feed will be used to account for differing feed rates between the weigh belt and the auger, especially during the stack testing.
Concerning the "breakdown of the total contract price showing the amount included therein for each principal category of the work", please furnish a summary sheet that totals to the base bid amount of $498,980. A separate summary sheet is required for the options. The option summary sheet should include a subtotal of the options plus a subtotal of the base bid with a total of $848,266 as total bid.
I bring your attention to FAR 31.205-7 Contingencies. You have included some contingencies in your breakdown of cost. Since the breakdown requested of you represents a progress payment schedule associated with work performed under a fixed price contract, you should not include contingencies. Please revise the affected pages and include with the summary sheet submissions.
We are anticipating early receipt of corrected work plan documents and schedules so that we can schedule a post-award briefing with you concerning contract requirements. Should you anticipate more than a few weeks prior to resubmission of documents for approval, then it may be wise to go forward with the briefing.
Please advise all concerned to not hesitate to place questions thro~gh you to EPA if there are any uncertainies. We desire a close and continuing dialogue throughout this project.
Sincerely,
Contract
Enclosures
' 1. CONTRACT ID CODE PAGE OF PAGES
AMENDMENT OF SOUCITAl:-/MODIFICATION OF CONTRACT 1 1
2. AMENDMENT/MODIFIC.::ATION NO. 3. EFFECTIVE DATE 4. REQUISITION/PUR SE REQ. NO. 5. PROJECT NO. (Ifapplicab!L!)
001 12/06/89
6. ISSUED BY CODE ~-----------i7. ADMINISTERED BY (If other than Item 6) CODE~------
Contracts Unit, 4th Floor
US EPA
345 Courtland Street
Atlanta, GA 30365
8. NAME ANO ADDRESS OF CONTRACTOR (No., street, county, State and ZIP Code)
Alvin P. Jackson, President
L & F Environmental Services
133 Appleton Street
Boston, MA 02116
(f) 9A. AMENDMENT OF SOLICITATION NO,
9B. DATED (SEE ITEM 1 I)
lOA. MODIFICATION OF CONTRACT/ORDER
NO.
J'--_6_8_-_s_9-_4_o_o_3 ______ _
10B. DATED (SEE ITEM 13}
CODE FACILITY CODE 09/26/89
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
D The above numbered solicitation is amended as set forth in I tern 14. The hour and date specified for receipt of Offers D
tended.
is extended. D is not ex-
Offers must acknowledge receipt of this amendment prior to the hour and date speciiied in the solicitation or es amended. by one of the following methods:
(a) By completing Items 8 and 15. and returning ___ copies of the amendment; (b) By acknowledging receipt of this amendment on each copy of the offer
submitted; or (cl By separate letter or telegram which includes a reference to the solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDG·
MENT TO BE RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND DATE SPECIFIED MAY RESULT
IN REJECTION OF YOUR OFFER. If by virtue of this amendment you desire to change an offer already submitted, such change may be made by telegram or
letter, provided each telegram or letter makes reference to the solicitation and th is amendment, and is received prior to the opening hour and date specified.
12. ACCOUNTING AND APPROPRIATION DATA (Ifre:Quired) N/A ·
13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS,
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14
(\I) A. THIS CHANGE ORDER IS ISSUED PURSUANT TO: (Specify authority) THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE CON·
---'--TRACT ORDER NO. IN ITEM l0A.
B. THE ABOVE NUMBERED CONTRACT /ORDER 15 MODIFIED TO REFLECT THE ADMINISTRATIVE CHANGES (,uch °' chante• in payinl office, appropriation date, etc.) SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b).
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY OF:
0. OTHER (Specify type of modification and authority)
X Unilateral modification under authority of paragraph F.3. Period of Performance
E. IMPORTANT: Contractor fZJ. is not, 0 is required to sign this document and return ____ copies to the issuing office.
14. DESCRIPTION OF AMENDMENT /MODIFICATION (Organized by UCF ttction heading,, includint •olicltation/contract tub}ect matter where fea.tbie.)
The contract for On-Site.Incineration of Pesticide-laden soil at the FCX Site, Washington,
NC is modified as follows:
The period of performance (POP) is increased from 260 calendar days to 270 calendar days
(beginning the day after the date of award), an increase of ten(lO) calendar days .. The
increase in POP is made in accordance with paragraph F.3.1 Period of Performance, and
represents the ten(lO) days of excessive review time of the workplan beyond the ten(lO)
days specified in the contract. Total Contract Price is unchanged.
Except as provided herein, all terms and conditions of the document referenced In Item 9A o l0A, as heretofore changed, remains unchanged and In full force
and effect.
ISA. NAME ANO TITLE OF SIGNER (Type or print)
158. CONTRACTOR/OFFEROR
(Sit nature of per11on authorized to •iRn)
NSN 7540-01-152-8070
PREVIOUS EDITION UNUSABLE
16A. NAM AND TITLE OF CONTRACTING OFFICER (Typ, or print)
15C. DATE SIGNED 16B.
BY
30·105
Officer
16C. DA E StGNEO
STANDARD FORM 30 (REV. 10-83)
Prescribed oy GSA
FAR (48 CFR) 53.2.!3
• • LEIGH A. ALLRED WARD AND SMITH, P.A.
WM. JOSEPH AUSTIN, JR. DOUGLAS K. BARTH THOMAS R. CRAWFORD C. DAVID CREECH
ROONEY A. CURRIN JAMES LEE DAVIS ALEXANDER M. DONALDSON DONALT J. EGLINTON J. NICHOLAS ELLIS
SUSAN K. ELLIS
DAVID S. EVANS MICHAf.:L P. FLANAGAN
ANTHONY GAETA, JR. THOMAS E. HARRIS WILLIAM F. HILL J. RANDALL HINER
MIRIAM K. JEFINIGAN
WILLIAM A. LATHAN, JR. JOHN M. MARTIN
W. DANIEL MARTIN, Ill JOHN A. Mc LENDON, JR. DAVID S. MORRIS
JOANNE K. PARTIN C.H. POPE. JR. B. JILL POWELL ROBERT D. ROUSE. JR. CLINT D. ROUTSON J. TROY SMITH, JR. H. L. STEPHENSON, 111 DAVID A. STOLLER CYNTHIA L. TURCO DAVID L. WARD, JR
JOHN A. J_ WARD KENNETH R. WOOTEN
Ms. Marcia Owens
ATTORNEYS AT LAW
April 13, 1989
Assistant Regional Counsel
U.S. Environmental Protection Agency
345 Courtland Street, N.E.
Atlanta; Georgia 30365
RE: FCX, Inc., Washington Site
Washington, North Carolina
Our File 80-0277(D)
Dear Ms. Owens:
1001 COLLEGE COURT
POST OFFICE BOX 867
NEW BERN, N. C. 28560-0867
TELEPHONE [phone]
FACSIMILE (919) 636 • 2121
331 WEST MAIN STREET
POST OFFICE BOX 749
HAVELOCK, N.C. 28532-0749
TELEPHONE [phone]
FACSIMILE [phone]
ONE FIFTY ARLINGTON PLACE
POST OFFICE BOX 8409
GREENVILLE, N.C. 27835-8409
TELEPHONE [phone]
FACSIMILE [phone]
RESPOND TO:
New Bern
t';OPY
This will acknowledge receipt of and respond to the letter to Fred
Webb, Inc. from Mr. Patrick M. Tobin, Director, Waste Management
Division, United States Environmental Protection Agency, which is
dated March 27, 1989.
\
As we have indicated repeatedly in letters dated December 7, 1988,
December 14, 1988 and January 11, 1989 and, as well, during the
conference on December 5, 1988, Fred Webb, Inc. has been
fraudulently induced to take title to the FCX, Inc. Washington
Site, and we have instituted a lawsuit on behalf of Fred Webb, Inc.
seeking to rescind the transaction by which title has been
transferred. Upon rescission, Fred Webb, Inc. will be treated as
if having never held title to the property. Further, Fred Webb,
Inc. has never operated a facility. In any event, Fred Webb, Inc.
is not responsible for any cost incurred by the Agency in
connection with responding to the FCX, Inc. Washington Site.
Moreover, we find it totally arbitrary, unwarranted and
inappropriate for the Agency to have made demand upon Fred Webb,
Inc. for costs incurred to date. The Agency has already asserted
a claim against FCX, Inc. in the context of the bankruptcy
proceedings seeking to recover these costs from FCX, Inc. as an
administrative expense, and the Agency's claim has been allowed for
a sum far in excess of the amount which is the subject of the
present demand. More specifically, on December 30, 1988 the
Bankruptcy Court entered an Order allowing this claim by the Agency
WARD AND SMII, PA.
Ms. Marcia OWens
April 13, 1989
Page 2
•
as an administrative expense and on February 6, 1989 the Bankruptcy
Court entered an Order requiring FCX, Inc. to set aside the sum of
$1,750,000 for this purpose. Copies of these Orders are enclosed.
The demand made by the Agency upon Fred Webb, Inc. is for the sum
of $316,933.53. Pursuant to the Court's Orders, the Agency is
entitled to recover from FCX, Inc. not only the cost which is the
subject of the present demand ($316,933.53), but substantial future
response that might be incurred by the Agency in connection with
the FCX Washington Site ($1,433,066.44). Certainly, the Agency
cannot recover the cost which is the subject of the present demand
from both FCX, Inc. and Fred Webb, Inc.
The Agency's own policy establishes that the Agency should pursue
FCX, Inc. -the party responsible for having created this situation
-not Fred Webb, Inc. The Agency has already done so and has
obtained a source of funds which is more than adequate to fully
reimburse the Agency for the cost which is the subject of the
present demand. We therefore suggest that the Agency make demand
upon, file a claim with and collect this sum from FCX, Inc.
Without waiving any defense and for purposes of facilitating the
Agency, we have filed a formal claim on behalf of Fred Webb, Inc.
seeking to recover the cost which is the subject of the Agency
demand as an administrative expense. A copy of this claim is
enclosed.
Until the Agency has incurred costs in excess of the $1,750,000
which the Bankruptcy Court has ordered FCX, Inc. to pay as an
administrative expense for cleanup of the FCX, Inc. Washington
Site, all demands by the Agency should be addressed to FCX, Inc.,
not Fred Webb, Inc.
Moreover, the Agency cannot anticipate that any person, including
our client, would remit payment on the basis of a mere "Cost
Summary," like that attached to Mr. Tobin's letter. Since our
prior requests for information, including the details necessary to
support the "Cost Summary," have not been acknowledged, we have no
alternative but to submit contemporaneously with this letter a
formal Freedom of Information Act request for this information.
If the Agency is presently contemplating commencing a cost recovery
action against Fred Webb, Inc., we suggest that the Agency should
carefully consider whether, under the circumstances presented by
this situation, any claim would be well grounded in fact or
warranted by law. In this regard, we will have little option but
to take action to fully protect our client's best interest should
the Agency elect to proceed with civil litigation.
WARD AND SM,I PA.
Ms. Marcia Owens
April 13, 1989
Page 3
•
Please include this letter as a part of the administrative record
and do not hesitate to contact us if you have any questions
concerning the matters addressed in it.
DJE:cyd
llCYD
Enclosure
cc: Ms. Rosalind Brown
Mr. Patrick N. Tobin
Mr. Bill Klutz
Fred Webb, Inc. / Mr. Lee Crosby"
Mr. J. Troy Smith, Jr.
Mr. Thomas E. Harris
Very truly Y.Ours,
Donalt J. Eglinton
• •
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
w,.R z 7 1989
REF: 4WMD-SISB-RB
CERTIFIED MAIL
34!S COURTLAND STREET
ATLANTA, GEORGIA 3038~
RETURN RECEIPT REQUESTED
Mr. Fred Webb
Fred Webb, Inc.
P.O. Drawer 158
Greenville, North Carolina 27835-0158
Re: FCX, Inc., Washington Site
Washington, North Carolina
Dear Mr. Webb:
In September 1988, the United States Environmental Protection
Agency (EPA) pursuant to Section 104(a) and (b) of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA), as amended by the Superfund
Amendments and Reauthorization Act of 1986 (SARA), 42 U.S.C.
Section 9601 et. ~, determined that a release or threa·.:ened
release of hazardous substances, as defined by Section 101 (14)
and (22) of CERCLA, had occurred at the FCX, Inc., Washington
Distribution Center Site in Washington, North Carolina
(hereinafter referred to as the Site). The Site is located at
the intersection of Grimes and Whispering Pines Roads in
Washington, North Carolina.
EPA has determined that you are the owner and operator of the
Site. Pursuant to Section 107(a) of CERCLA, you are liable to
the Hazardous Substances Response Trust Fund (Fund) established
under the provision of Section 221 of CERCLA and administered by
EPA, for payment of all costs expended by the Fund at the Site.
Site investigations were conducted in 1986 by the North Carolina
Department of Human Resources and by EPA in August 1988. The
samples analyzed revealed the following pesticides at their
respective concentrations:
Heptachlor
alpha-chlordane
gamma-chlordane
Dieldrin
DDT
Methoxychlor
Mercury
130 parts per million (ppm)
900 ppm
600 ppm
90 ppm
520 ppm
13000 ppm
28 ppm
• • -2-
On November 14, 1988, EPA issued an Administrative Order to you,
pursuant to Section 106 of CERCLA, directing you to undertake
the necessary actions to protect the public and the environment
from the endangerment posed by the release and/or threatened
release of .contaminants from the Site. Your failure to comply
with the requirements of the Order initiated EPA's response
action in January 1989. EPA's response included the excavation,
sampling and stockpiling of the contaminated soils and waste
·contained in the trench. Further response will consist of t~e
disposal of the excavated material and other studies and
remedial actions as necessary.
Enclosed is a statement summarizing the expenditures for the
immediate removal totaling approximately $316,933.56. EPA is
currently tabulating additional response costs associated with
the Site including, but not limited to administrative costs,
indirect costs, attorneys' fees, and interest. Thus, the total
response costs are subject to change.
EPA hereby requests that you reimburse the Fund in the sum of
$316,933.56 within fifteen (15) calendar days of your receipt of
this letter. Payment should be made to the Hazardous Substances
Superfund by certified or cashier's check payable to:
United States Environmental Protection Agency
Region IV
Superfund Accounting
P.O. Box 100142
Atlanta, Georgia 30384
Attention: Collection Officer for Superfund
A copy of the 6ertified or cashier'~ check and its transmittal
letter should be sent to Ms. Rosalind Brown, Cost Recovery Unit,
at the following address:
U.S. Environmental Protection Agency
Investigation Support Section
Waste Management Division
345 Courtland Street, N.E.
Atlanta, Georgia 30365
404/347-5059
,. • • -3-
You should contact the person named below in writing no later
than seven (7) calendar days after your receipt of this letter.
Any replies to this demand should be made to the address shown
below:
Sincnly
Patr~.
Director
Ms. Marcia Owens
Assistant Regional Counsel
U.S. Environmental Protection Agency
345 Courtland Street, NE
Atlanta, GA 30365
[phone]
Waste Management Division
Enclosure
cc: North Carolina Department of Human Resources
Donalt Eglinton, Ward and Smith, PC.·
• • FCX Incorporated Washington Plant Site, North Ca=lina
I. Regional Cost
Payroll
Travel
Cost Surrroary
Indirect 652 hrs X $48.00/hour·
Subtotal
II. Headquarters
III. Contracts
$ J.l,455.66
3,570.00
31,296.00
$ . 46,321.66
********
Technical Enforcement Support (TES III) $ 7,611.90 Camp, Dresser & M::Kee
Technical Assistance Teanm (TAT) 38,000.00 Roy F. Weston
&rergency Re!oval Cleanup Service (ERCS) 225,000.00 0. H. Materials
Subtotal
Total
***Cost docurrentation requested
$ 270,611.90
$ 316,933.56
• • LEIGH A. ALLRED WARD AND SMITH, P.A.
WM. JOSEPH AUSTIN, JR.
DOUGLAS K. BARTH THOMAS R. CRAWFORD C. DAVID CREECH
RODNEY A. CURRIN ..JAMES LEE DAVIS ALE)(ANDER M. DONALDSON DONALT J. EGLINTON .J. NICHOLAS ELLIS SUSAN K. ELLIS DAVID $. EVANS MICHAEL P. FLANAGAN ANTHONY GAETA, JR. THOMAS E. HARRIS WILLIAM F. HILL J. RANDALL HINER MIRIAM K. JERNIGAN WILLIAM R. LATHAN, JR
JOHN M. MARTIN
W. DANIEL MARTIN, Ill JOHN A. McLENDON, JR.
DAVID S. MOFIRIS
JOANNE K. PARTIN C. H. POPE, JR. 8. JILL POWELL
ROBERT D. ROUSE, JA.
CLINT D. ROUTSON ~--I~~~E5P~1rnst~--Ill DAVID A. STOLLER CYNTHIA L. TURCO DAVID L. WARD. JR. JOHN A. J. WARD KENNETH R. WOOTEN
ATTORNEYS AT LAW
February 22, 1989
Ms. Marsha A. owens
Assistant Regional Counsel
Office of Regional Counsel
United States Environmental Protection Agency
Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
RE: Fred Webb, Inc.
Docket No.: 88-31-C
Our File 80-0277(C)
Dear Ms. Owens:
1001 COLLEGE COURT
POST OFFICE BOX 867
NEW BERN. N. C. 28560-0867
TELEPHONE [phone]
FACSIMILE [phone]
331 WEST MAIN STREET
POST OFFICE BOX 749
HAVELOCK, N.C. 28532-0749
TELEPHONE [phone]
FACSIMILE [phone]
ONE FIFTY ARLINGTON PLACE
POST OFFICE BOX 8409
GREENVILLE, N. C. 27835-8409
TELEPHONE [phone]
FACSIMILE (919) 756 -3689
RESPOND TO:
New Bern
COPY
We understand that the Agency has now completed excavating and
removing contaminated material from the areas at the Washington
Site where they were buried by FCX, Inc. We also understand that
those materials have now been stock piled at the Washington Site
and are awaiting disposal by the Agency.
We continue to be concerned about the manner in which the Agency
is responding to the situation created by FCX, Inc. at the
Washington Site. At the time the Agency elected to commence
excavation and removal, no plan was prepared by the Agency. Also
at that time, there was no evidence that any of the materials about
which the Agency was concerned had migrated beyond the perimeters
of the trenches or pits in which FCX buried those materials and,
though tested, there was no evidence of any groundwater
contamination whatsoever. If the impulsive actions taken by the
Agency with regard to this situation have resulted in soil, air or
water (surface or underground) contamination, the Agency has acted
in a manner not consistent with the National Contingency Plan and
has done so under protest from our client, Fred Webb, Inc.
With regard to disposing of excavated material, the Agency is
required by law to act in a cost effective manner, consistently
with the National Contingency Plan. In this regard, the Agency
should be advised that there has been recent legislative activity
in North Carolina to establish a formal hazardous waste disposal
site. If it is more economically practicable to dispose of the
material excavated from the Washington Site (or any portion of it)
WARD AND SM,I, P.A.
Ms. Marsha A. Owens
February 22, 1989
Page 2
•
by transporting it to a designated hazardous waste disposal site
than it is to incinerate that material, the Agency should act
accordingly.
We also continue to be concerned that, notwithstanding our repeated
requests for information relating to actions being undertaken by
the Agency and our repeated expressions of interest on behalf of
our client in being involved by the Agency in dealing with the
situation created by FCX at the Washington Site, the Agency has
not responded and has declined even to confer with us or our client
regarding this matter. Please refer to our letters of January 12,
1989, January 11, 1989, December 14, 1988, December 7, 1988 and
November 23, 1988 and to the conference which occurred on December
5, 1988 and consider this to be a renewal of all of the requests
contained in those documents. We are particularly interested at
this time in being provided with a complete copy of the
administrative record relating to this matter, the split.samples
which we requested the Agency to obtain in connection with
excavation and removal of materials from the Washington Site, and
a complete copy of all daily records prepared under the supervision
of the on site coordinator while materials were being excavated
from the Washington Site. Please provide these documents and
materials to us as soon as possible.
Please include this letter as a part of the administrative record
of this matter. Also, please do not hesitate to contact us if you
should have any questions regarding matters addressed in this
letter.
DJE:rmm
3RMM
[CERTIFIED MAIL]
cc: Fred Webb, Inc.
Ms. V. Anne Heard
Mr. Bill Klutz
Mr. Lee Crosby
Mr. J. Troy Smith, Jr.
Mr. Thomas E. Harris
Ms. Mariam K. Jernigan
Very truly yours,
Donalt J. Eglinton
•
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!10 iiA <D ::~~i. 3/a71
•
IN RE:
FCX I INC. I
ID#: 56-0220040
DEBTOR
• FaL
UNITED STATES BANKRUPTCY COURT FEB 3 1989
EASTERN DISTRICT OF NORTH CAROLJMGY B. DEANS, CLERK
U · S. BANKRUPTCY COURT
EASTERll DISTRICT OF N. C.
CASE NUMBER: I
S-85-01574-5 I
MEMORANDUM OPINION AND ORDER
The matter before the court is the "Notice of Intention to
Abandon Property" filed by the debtor on October 21, 1988, and the
objections to the proposed abandonment filed by the United States
of America on behalf of the Environmental Protection Agency ("EPA")
and the State of North Carolina (collectively referred to in this
opinion as "the governments"). A hearing was held in Raleigh,
North Carolina on January 20, 23, 24, and 25, 1989.
The debtor, with the support of the Unsecured Creditors'
Committee and the Committee of Subordinated Debenture Holders, . '
seeks to abandon what was once FCX's pesticide blending.facility''in . :·
' ' .-f . .,<r,,' ,: :: ....
It is undisput4:?. that ;jthe ico~t_. ;.~fi • .''.:1i
tl· . •1 1 •• ,_ ... , pesticide removal and remediation in accordance ·/with EPA's ·,:,'
Statesville, North Carolina.
standards exceeds the value of the property. At issue is whether
the property poses an imminent threat to public safety.
JURISDICTION ,
This bankruptcy court has jurisdiction over the
subject matter of this proceeding pursuant to 28 u.s.c. §§1334,
1
l 72A. 9
~'-8/8?.)
• •
151, and 157 and the General Order of Reference entered by the
United States District Court for the Eastern Di.strict .of North,'
• ! Carolina on August 3, 1984. This is a "core proceeding" pursuant
to 28 U.S.C. §157(b) (2) (A), (B), and (0), which ~his coJJt may hear
~ I, ~ '. and determine. I , I
• I I
FACTS ,
I l
Background
FCX, Inc., a North Carolina farmers' purchasing and marketing
cooperative, filed a voluntary petition under chapter 11 of the.
Bankruptcy Code on September 17, 1985. The debtor's reorganization
I strategy was to liquidate its assets in an orderly manner and
distribute proceeds to creditors. One of the properties to be sold
was the debtor's distribution center, formerly a pesticide blending
plant, in Statesville, North.Carolina. In February, 1986, Southern I
States Cooperatives, Inc. ("Southern States''), a prospective
purchaser of the facility, hired Fred C. Hart Associates ("Hart")
b
to investigate the site
took soil samples and
for possible environmental problems.
jl
installed four wells to te~t the ground
Hart
water. The results of the tests were included in a written report
' which was furnished to Southern States and to the debtor. The Hart
/1 Report disclosed the presence of hazardous substances i~ the soil
and ground water and, quite understandably, Southern States lost
interest in the sale. F'CX, wfth court approval, hired its own
environmental consultants, Dr. C. Page Fisher and Charles A.
Purcell, Jr., who conducted their own examination and on May 2,
2
,.
,,"(I ,,
• •
1986, FCX transmitted to EPA a "Notification of Hazardous Waste
Site'' (''Exhibit 2"). The notification, which is required by
Section 103 of the comprehensive Environmental Response, Compensa-
tion and Liability Act ("CERCLA"), 42 u.s.c. §9603, as amended by
the superfund Amendments and Reauthorization Act of 1986 ("SARA"),
Pub. L. No. 99-499, 100 Stat. i613, identified FCX as "FCX, Ind;,
Debtor and Debtor in Possession" and generally described the ~natur~. . . " ,t .. of the problem. ' ·•, ,• I l i , .. . . . :i :,:J ;\.
·I • The confirmation process continued after thefnotification, but
. . ' for some reason, neither EPA nor the State of North carol ina
received a copy of . the debtor's discl.osure statement, or plant or
notice of the confirmation hearing. The debtor's plan of reor-
ganization was confirmed on August 4, 1986, and provides for the
orderly sale of the estate's assets and distribution of the sale
proceeds to the debtor's creditors.l The debtor's disclosure
-·'' I d1~
,· :/
statement discussed the environmental problem at Statesville and
stated that costs of clean up "would constitute a cost. of· ad:.. ..
. f ·; ' ,; .• ·'-1: . . , ' · ... " ~·---,·. ministration in thi!>· ·cas~•.". .(Dis~losure s_tateme,nt,',: of·1J:9X(:'! Irie".·,'<; :is14: • ~ , • ':·, :,.. •. ~ f'i'ot.-,; \ ,-• t., . ~ ; .. t .q .'-'-":,.,.t"1;''f/'~·\ ~1J 1~· V ··•\:·' ·-,,u, ·~ • . ·•,-~,1'•~1· , • t~· • 1-~,'· .. -,~,,d:1 s.011..: ..,.•,~,"" •t, .. ~~1-,_ . •i1:-June · 6, . 1986, ,rat.,'. p~. g.·~;},{6~·) 2.,: T.'i.i.e}1~ril'an,:. ''Ji~t,t~r.t:",. ~,,"'a.··· ®."·.•.·.i~,\liJ't:· .. ,,. e .. ·· r,: " .1· •· ,·;~it.-~ .... -~·;..-,._.,-:,r-Jg~~:"'--\.,"'.'~it•H,.>;.\• -, ~·-.: ~--··" .. ,•c.v--i~.-.:-./f~•-!'7i:;,-,~~~tf ... 1· .. !
•, I • : ;Jt )~, ·;_-:::~~i~~,i.~)i~~ :~/~f-~~::~ ;' •~~.!~~ ,~1~f1i •-Yi~\!} ,ii~? •t\ rfi , • ,j .-.• . .1. -,,,yt'.r , ~-·:•· •)-<t "--...:i~:-r •:ff,. _;f:9-r.:..,rtf,: ·.,.'.¾-0°~ •,. •,: , .,,1\ _ •• ~ ·• ' . I ,· ~-,-,.'\ ~ .. ,~ . .-_.-1..:-.,-•• t '"':(,Jt l• -,,.-.~ .. , l'"f -~ '-\{<• lunder the plan' :.· the debtor Is sole secured . fredi tor; . Columbia'~ }"" 1, Bank for Cooperatives, agreed to reduce its· secured· claim 'of;' '~,;:;, approximately $60,000,000 to permit the class of unsecured · creditors (claims of approximately $12,000,000) a'nd~, the class of subordinated debenture holders (claims of approximat~ly $8,600,000) to participate in the distribution of encumbered assets. The plan provides for the class of unsecured creditors to receive a~ least $5 ooo 000 and for the class of subordinated debenture holders to re;eiv~ the proceeds of specific FCX investments' provided that those proceeds are not needed to pay the compromised claim of Columbia Bank for Cooperatives and the minimum distribution of $5,000,000 to unsecured creditors.
3
n, , . .,.~.,
.1
f1J?t;I ·•11a1atl'W! et' • f ctt· , ,,.,, ':etzilt trDtlN:tmNW::IWI eerrrr: ttenrD'eMNllt!ae:trlN * .,,,. . 6 □ rt::+ er::r4.....,::te:t?&Wt¥M rrt:''f':t1?"K'1tz
• •
address the payment of clean up costs at Statesville or any other
location. The debtor has acknowledged liability under CERCLA for
the clean up costs of the Statesville plant,2 but contends that,
notwithstanding CERCLA and prior representations, those costs are
not costs of administration if the property is abandoned. 3 The
:.:'1 • ' ·• , ' . · 1 :.~·.· .. ~.: 1r· ;,. .~ ..
' ~rope_rty!: f.ive ·ac;i:-e~ .. , on _.west,_ F,ront Street in Statesvil_lf:, North
.., r. -.'-_ , '• ! -. I,, "-1J-' 'f' •, ~' ,:•. ,... ' ~ i, ',,, •, ~ ~• . i¥){"'1!~r'fna>.Hi'ii1f#a,· ~il1:&:1t1i.'ri1• in':' \lnc:o~taminated Condition. of . approxi--
. 5i•f;~:i•:"''•,':f .. /~;}.·\fL.Z.~':; .. ?:.:;4!$f·_,~li._ .:··· ;,_\r,' 4•:g··.·:· ::'.. ·".'. .,i' ·,.·,. · .. -. : ;··: ·, ";_,,,
''··._.ri.-• ""ii,~_ •. ,).:,fc_•l_f.,•, .. ;ir,, · .. ,r··' ,,, ;.,,t:.:,_,,·.md ., :icmci:A 'ti' VG 1beeri _estimated,' J~_:.·,_~_!R.~t_•~-f,ll.;!}i_· "'-'i:_'!~;_tl,~~1.Ff:_.~.s.:_,i~ ef_D .· a_ .. •··-·'£:~: .• ..., •.. ··"m'"'' .• . .... ·" , 'I . . . " iPl'.,~o-1lie"' be.li1'.~~-, 'i,~0:0°:0.oQ·(;'~rid $1,300.000. ; . . . .•.
, ,.,,,..,'I', , 1 • 1
The Statesville Problem
For many years, beginning in the early 1940's
1
~and continuing ,' to 1969, the debtor operated a feed mill and pesticide blending
•
plant at its Statesville property. No one disagreed that hazardous
pesticides are buried at the site
' but the exact nature, amount,
and location of the toxic ·chemicals are not kno!'m. Former FCX ·
II . . .... '• I
employees have been interviewed and have identified' :~1r'y_e:,)'~:~~.~:(\.tff/
rences which give cause for concern. First, in 1969 , · FCX -~t.im ,,.-'.' ":';";!'
. , ~1 .. -. ., .. ,. .,.. -. , , ... P
·--~ '•·i, .".:~}/;":~;::~~;.,:~:•'"•· 2 \.'' ;;,. ., .''.' See Judge Fox's Order of December 29, ,1988 -~ it't'j ·• ,,;-.:'i
:_ ,:} . · . '. .-•-1·:_: :·\-::_-: ·ti1,>"·~·~>v·.·}~~t•,,.t .""' 3Whether. the EPA or · the State. bf North Carofi"na ,'
unsecured claim for the clean up costs is not' 6~'f6re·/ •. ,;~. .
. debt to EPA or the State of North Carolina for hazardou'sc'~
. -site:3 is listed in the debtor's schedules and neither the· EPA no1: \
· the State of North Carolina has filed a proof of claim in ·this ! _case. See Maressa v. A.H. Robins Co., 839 F.2d 220 (4th Cir. 1988)
1•nd Grady v. A.H. Robins Co., 839 F.2d 198 (4th Cir. 1988). This
~court has already determined in an order entered December 30, 1988,
>that the State of North Carolina. shall have a cost of admiriistra-
,.;11,~i~n -. p,::iority in . the 1:mount of $9,312: 01 fo7 its investigative
('casts in connection with the Statesville site and a cost of 1
;pad.ministration priority claim for the clean up costs in connection 1
~w.}'.~.lj t~_e.'deb .. tor's site in Washington, North Carolina, fwhich is also ontam:i,nated.
w•<,._f ,,, \1·/• • ••' ~~14~\~ ;i ~:t;' ,.:;. .. '
•\;k J ' I fr.· . }tJ .p . 1,·;.
·~ -~f;_~-~>.·.,·;~:~·,. 4
-r.-,.~ .. }l, .... ,t~
'''\:j?,: 2:. \""\ . :. '~· .. ._',)
.. ~~ '\,\, 'I ...,_.....,, , , ' 1i , ' ,
~-it(<,., ... ,, .-.;•1 '
~~q,),I, _ri . ..._:...:d._~ -'. ~
AO 1211 ID
(Rev.81921
• •
approximately five tons of ''off spec'' pesticides, most likely DDT,
Chlordane, DDE, Dieldrin, and possibly Lindane, into a pit which
is estimated to be 10 feet deep, 8 feet long and 8 feet wide. The
precise location and depth of the pit has not been ascertained,4
but it is known that the pit was filled in with soil and covered
with a reinforced concrete slab. Subsequently, FCX built a
warehouse over the buried pesticides which is 73,000 square feet in
size.
The second event, perhaps coinciding with the first, involved
the burying of 50 to 100 one gallon glass bottles of liquid DDT.
One employee recalled that many of the bottles broke when they were
thrown into a pit. These bottles of liquid DDT may be in the same
pit as the first chemicals, but that is not at all clear.
The third cause for concern is that, while the pesticide plant
was in operation, FCX employees routinely disposed of excess
Lindane by pouring the Lindane on the ground outside of a plant
window. The spot where the Lindane was poured was not paved at the
time, but is now believed to be under a paved parking lot. It is
the possibility that Lindane has contaminated the ground water that
most alarmed EPA and the State of North Carolina and led to the
site being proposed for inclusion on the National Priorities List5
established pursuant to 42 U.S.C. §9605.
4 In January, 1989, a
attempted to locate the
warehouse floor.
contractor hired by EPA unsuccessfully
pit by digging 22 holes through the
5The Statesville facility has been assigned a Hazard Rating
Scar!= of 3 7. 94 --a site is generally included ·on the National
Priority List if its Hazard Rating Score exceeds 28.5.
5
AO i':iA © fR.,,,Ml21
• •
Lindane, the most soluble of the pesticides'at the site, is a
1 l ' CERCLA hazardous substance for which the safe ·drinking water
I I
standard is 4 parts per billion;6 In February, 1986, Fred C. Hart
Associates sampled the four test wells and found :that one well,
Well #3, contained a Lindane level of 58 parts per billion --more
than 14 times the_ present safe drinking water standard. EPA and
the State of North Carolina
Well #3 shows that Lindane,
maintain that the high Lindane level in
either from the soil abovJ Well #3 7 or
from the pit beneath the warehouse, has contaminated the ground
water. That contamination, according to the governments poses an
immediate threat to approximately 12,000 residents who rely for
their drinking water on wells located within a three mile radius of
the site.
FCX's consultants, however, adamantly dispute the governments'
conclusion on this point. -They contend that Lindane has not
contaminated the ground water and argue that the site does not
present an immediate health hazard to the residents in the area.
To begin with, the FCX consultants believe that the test results
for Well #3 are suspect because of improper techniques used by Fred
c. Hart Associates in drilling the well. Specifically, FCX's
consultants believe that an unsterilized drilling auger came in
contact with Lindane in the soil and transported the pesticide to
6A proposal is pending to reduce the safe water drinking level
for Lindane to .2 parts per billion.
7well #3 is thought to be situated in the area where the FCX
employees poured Lindane on the ground.
6
ohi>. m
'1!!\l.::!f.r.?I
• • . l ' i \
the water in Well #3.8 After the surface structure] o'f Well #3 had t
been damaged ~nd could be no longer tested, FCX's experts drilled
another well, Well #3A, three feet from Well #3. A sample taken
from Well #3A in August, 1988, contained a Lindane level of 3.4
ppb, within the safe drinking water level of 4 ppb. Dangerously
high levels of Lindane were later found in Well #3A in tests
conducted in October, 1988 (19 ppb)' and in January, 1989 (54 ppb)'
but FCX's consultants maintain that these high levels only indicate
a small pocket of contamination caused by the drilling of Well #3.
The first test of Well #3A does give some credence to the idea that
Well #3 was polluted during drilling.
With the exception of the tests of Well #3 and Well #3A, all
tests of other wells at the site have demonstrated Lindane levels
at lower than the present safe drinking water standard (see "FCX
Exhibit #8"). FCX's consultants believe that, of these tests, the
test results for Well #1 are the most significant, because, in
their opinion, Well #1 has the lowest gradient. They reason that,
if Lindane had polluted the ground water, the contamination would
' have migrated to the lowest point and should be detected in samples
from Well #1. Tests of the water in Well # 1 do indicate the
presence of Lindane, but at levels within the current safe water
drinking standard (02/86 .33 ppb;
measurable test limit of .4 ppb; 08/88 --
05/86 .--r.less than the
I) u
'~ ~ .18 ppb; 10/88 -~ .2 ppb;
01/89 --.38 ppb). Lindane was'detected in a sample of Well #4 in
ii
8 rt is not disputed that the drilling auge~ should have been,
but was not, steam cleaned. '
7
l 7:lA .. El>
e.v. 3/821
• •
February, 1986, at a safe level of .11 ppb, but was not
three tests of Well #2, was not found in a well located on
\ ~ found in!,
property/
' adjacent to the site, and was also not found in six off site wells
' :,r, recently tested by the State of North Carolina, I The: fact that, ~ j except for the tests as Wells #3 and 3A, Lindanel has not been
detected at high levels 20 years after the dumping or burial of the
Lindane at the site convinces FCX's consultants· that
~ not present an immediate hazard to public health!
Lindanei does
i
FCX's consultants also believe that, even if Lindane were to
be found in the ground water at the site at higher levels than
presently detected, the health of Statesville residents would not
be jeopardized because most of the people in the area are served by
a public city water system which draws water from sources more than
seven miles from the debtor's facility. The property appears to
drain to the southeast, an area served by city water, and the
ground water, based on the water levels in the test wells, appears
also to slope in the same direction, but that is by no means
certain.
The governments say that more than 12,000 residents drink
• water from wells located within a three mile radius of the FCX
facility, but the governments' evidence is less than convincing on
the accuracy of that number.9 There may be residents in the area
9Eight thousand of the 12,000 residents identified by the
State of North Carolina receive their water from the Iredell County
Water System which has two wells within a three mile radius of the
facility. Both wells are up gradient from the site to the north
and the closest of the two wells is two miles away. The remaining
residents were identified by counting houses on a topographic map.
It was "assumed" that these people used private wells. {"FCX
8
l 72A .• ID
tv. 8/8,I
• •
southwest of the site who use_ private wells for drinking, but the
closest well used for drinking water is approximately one-half mile I ·. I away. There are two wells which serve the Iredell County water
• system, but the closest well is approximately two miles up gradient
to the north of the site.
Although the high levels of Lindane in Test Well #3 and Well
#3A are of substantial concern, the court is not convinced that the
presence of Lindane at the FCX site presents an immediate public
health hazard to the residents of Statesville and the surrounding
area. First of all, there is no satisfactory evidence to show the
level of Lindane present on the property. Soil samples taken by
Hart (''FCX Exhibit #7''), the State of North Carolina (''FCX Exhibit
#7"), and EPA (testimony of Jan Rodgers) have not detected any
Lindane in the ground. More importantly, in the twenty years since
Lindane was poured on the . ground by FCX employees it has not
migrated to the lowest gradient test well (Well #1) in sufficient
quantity to exceed the present safe drinking water standard. That
being so, the unknown amount of Lindane at the site cannot be said
to present an immediate threat to the drinking wells in the area--
the closest being one-half mile away.
FCX's consultants also contend that the pesticides buried
under the building pose no immediate health threat. In fact, they
believe that the pesticides could not be in a much \safer place.
After all, the chemicals are thbught to be in a relatively small
area (8 feet by 8 feet by ten feet) surrounded by clay and capped
Exhibit #3.")
9
>12,:.._s
'!V,9/lt2)
• • t I by a 73,000 square foot warehouse with a r~inforced concrete
t
floor. That is true, but there remain many troublesome and
,,fr unanswered questions surrounding the contamination of the States..:, j'
ville site, particularly relating to the pesticides buried in 1969./
What pesticides are buried there? Where are they buried? How
close is the ground water to the pit? Will the lateral movement of
water in the soil eventually carry these pesticides to the ground
water?
Soil and ground water samples at the site have shown the
presence of DDT, Dieldrin, Chlordane, Methoxychlor, Mercury, and
Dichloroethane, all hazardous substances under CERCLA.
The pit may be covered with concrete, but the fact remains
that the pesticides are not in an adequately contained repository.
That is not acceptable. There are simply too many uncertainties
concerning these dangerous substances to leave them in their
present uncontrolled state. In these circumstances the buried
pesticides present an immediate threat to public health and these
pesticides should be removed without delay.
The costs of removal has been estimated to be $250,000
(testimony of Jan Rodgers and ''Governments' Exhibit #2'') and the
property should not be abandoned until that sum is set aside by FCX
to cover the removal costs.
DISCUSSION AND CONCLUSIONS
FCX seeks to abandon its former pesticide plant in order to
avoid paying the costs necessary to clean up the facility to the
10
0 72A <D
l<v. S/821
• • • •
standards required by CERCLA and the • , I environmental. laws of the
State of North Carolina. It is not uncommon for trustees or
debtors in possession to attempt to abandon property where the
projected clean up costs exceed the projected "post clean up" value
of the property. In re 82 Milbar Boulevard Inc., 91 B.R. 213
(Bankr. E.D. N.Y. 1988) _10
The United States Supreme Court, however, has held that the
court "does not have the power to authorize an abandonment without
formulating conditions that will adequately
health and safety.'' Midlantic National
protect the public's
"' Bank v. New Jersey
Department of Environmental Protection, 474 U.S. 494, 106 S. Ct.
755, 762, 88 L. Ed. 2d 859 (1986). EPA and the State of North
Carolina contend that any violation of CERCLA constitutes· a threat
to the public's health and safety and that there can be no
abandonment until the violation is remedied. The mere release of a
CERCLA hazardous substance into the environment, according to the
EPA, compels a finding of an imminent and substantial endangerment.
Furthermore, EPA argues that the court is bound by EPA' s deter-
mination and may not second guess EPA as to what constitutes a
lOThe Bankruptcy Code does not provide a priority for
environmental damage caused by a debtor's prepeti tion acts, and,
even when public policy may favor a priority, the ·court may not
create one when one does not exist. In re Dant & ·Russell, Inc.,
853 F.2d 700, 709 (9th Cir. 1988); 3 L. King, Collier on Bankruptcy
,I507. 02, at 507-17 ( 15th ed. 1988) . The Uni):ed States Supreme
Court has held that a state's prepetition injunttion directing the
•. \l, I clean up of a hazardous waste site created no more than a general,
unsecured claim not entitled to priority. Ohio v. Kovacs, 469 U.S.
274, 282-83; 105 S. Ct. 705, 709-10, 83 L. Ed. 2d 6491 (1985); ~
also Southern Railway Co. v. Johnson Bronze Co., 758,F.2d 137,141
(3rd Cir. 1985) and In re Dant & Russell. Inc., 853 F.2d 700 (9th
Cir. 1988).
11
D 72A e
!?v, 8/32)
• •
serious public health or safety risk. The court ,agrees that it may
!
t ~ not substitute its judgment for that of EPA or the State of North!
Carolina as to whether there has been a CERCLA or state law
violation, but whether there have been violations of CERCLA or
state environmental law is not the test when the issue is abandon-
ment. For the purposes of an abandonment controversy, the court,
not EPA or the state, must determine if there is an immediate
threat to public health and safety.
The Fourth Circuit Court of Appeals has recently held that the
i
' limit which Midlantic places on the ability of the trustee or
debtor in possession to abandon property is a narrow one.
Smith-Douglass. Inc., 856 F.2d 12 (4th Cir. 1988) ,ll
In re
Full
compliance with all environmental laws is not required prior to
abandonment, but abandonment is not authorized when there is an
immediate threat to the public health and safety and an imminent
danger of death or illness. Id. at 16. EPA argues that the
holding of Smith-Douglass is not applicable here because that case
involved a violation of state law. The result, however, is the
same whether there is a violation of CERCLA or a violati'on of a
il
state environmental law. The crucial determination is whether
there is an immediate danger to the public health and that decision
is made by the court.
11The Ninth Circuit has a·lso read the Midlantic exception
narrowly. In re Dant & Russell. Inc., 853 F.2d -700 {9th Cir.
1988). Other courts, however, have given the Midlantic exception a
broader interpretation. In re Wall Tube & MetalcProducts Co., 831
F.2d 118 (6th Cir. 1987); In re Stevens, 68 B.R. 774 (D. Me.
1987) ;·In re Peerless Plating Co., 70 B.R. 943 (Bankr. W.D.rMich. 1987).
12
l 72A. a,
ov.8/8:11
• • l In this case the burial of five tons of pesticides: in an
I uncontrolled condition presents an immediate threat to.the health
of those
imminent,
living in the area.
the court recognizes
In holding that the~ danger is
that the environment!l 'threat may
not be fully manifested for several years. Nevertheless, the
danger is immediate in the sense that there is a present and real
possibility of public exposure to those deadly substances if they
·o are not removed. 0
The court is also aware that, despite learning of the problem
in May of 1986, neither the EPA nor the State of North Carolina
commenced any enforcement action until after the notice for
abandonment was filed.12 While that may be some evidence that the
governments did not consider this site to pose an immediate danger, I
it certainly does not decide the matter. EPA and state environ~
mental agencies necessarily must proceed deliberately in such
matters, but even when there is an inordinate delay, the court
must find an immediate danger to public health if in fact one
exists.
EPA and the State of North Carolina argue that the debtor has
''unencumbered'' funds from which it could pay all costs required by
CERCI.A. The funds, however, are not entirely unencumbered as they
have been committed to the payment of other claims in accordance
with the terms of the debtor's confirmed plan. The court has
"broad discretion in determining whether to award administrative
12on December 23, 1988, EPA notified FCX that FCX should undertake voluntary clean up activities. ("Governments' Exhibit #3"). '
13
I
• .
expense priority," Dant & Russell. Inc., 853 F. 2d 700, 707 ( 9th
Cir. 1988), and the circumstances of this case are such that only
those costs reasonably required to remove the immediate threat will
be given cost of administration status.
North Carolina are inclined to proceed
activity, they shall have a lien on the
the sums expended.
IF EPA or the State of
with further remediation
! property to the extent of
Based upon the foregoing, the abandonment of the debtor's
Statesville property is allowed on the condition that FCX set
aside the sum of $250,000 for the payment of clean up costs
incurred by EPA or the State of North carolina.13 This sum shall
be in addition to the $9,312.01 cost of administration priority
claim previously allowed for the State of North Carolina for its
investigative costs in connection with the property.
SO ORDERED.
DATED: FEB O 3 1989
A. Thomas Small
Bankruptcy Judge
13The court will allow aba~donment of the property to either
EPA or to the State of North Carolina if that is their preference.
The court will also consider any request by EPA or the State of
North Carolina to impose restrictions on the use of the property
pending governmental clean up activity at the site.
14
/i
I
> 72A ©
"'· 8/82)
• F J l ED
UNITED STATES BANKRUPTCY COURT FEB f 6 1989
DISTRICT OF NORTH CAR~B. DEANS, CLERK
NC DEPT. OF JUSTICE
HUMAN RESOUlill~ERN
IN RE:
FCX, INC. ,
ID#: 56-0220040
DEBTOR
U. S. EAllKRU?TCY COURT
EASTEilll D!S~'lUCT OF N. C.
CASE NUMBER:
S-85-01574-5
MEMORANDUM OPINION ANO ORDER
On December 30, 1988, this court entered a Memorandum Opinion
and Order which partially dealt with four matters pending in this
case: (1) the "Motion for Authority to Make A Second Dividend
Distribution to Unsecured Creditors and CBC" filed by the debtor on
April 11, 1988, ( 2) the "Motion to Conserve Remainder of Estate
For Cleanup of FCX Hazardous Waste Disposal Sites" filed by the
state of North Carolina, Solid waste Management Section, Division
of Health Services of the Department of Human Resources (the "State
of North Carolina") on May 11, 1988, (3) the "Application for
' Reimbursement of Administrative Expenses" filed by the State of
North Carolina on May 11, 1988, and (4) a ''Motion for Instructions
concerning Compliance with Administrative Order Issued by United
states Environmental Protection Agency" filed by the debtor on
September 26, 1988. A determination of several issues was
postponed pending a decision by this court concerning the abandon-
ment of the debtor's Statesville ·property. The court has now
decided the abandonment issue and can now address the
issues in these proceedings.
1
remaining ,j
l72A 0
!'l.3/8:)
• •
. -' ' · 1 i
The court will allow the distribution to unsetured c;editots
\ ~ I and to Columbia Bank for Cooperatives provided that the.,debtor sets
' I & aside the sum of $2,000,000 to cover the costs ot::c:a1ean up at its
~ • I • sites at Statesville and Washington, North Carolina.1 ' I j
The court has determined that FCX may abandon 1the Statesville
I t site by paying $250,000. The remaining $1,750,000 shall be set > . I aside to pay for the clean up costs for Washington ~nd to pay the
• 1\
State of North Carolina's administrative claim for 1its investiga-
tive costs in connection with the Statesville site t; the amount of
$9,312. The court has recognized EPA' s and the State of North
Carolina's right to a cost of administration priority with respect
to the Washington site clean up, but to date no specific claim has 1
been made for clean up costs
amount to be set aside, the
the clean up costs.2
actually incurred. In arri~ing at the
court considered various ~stimates of
D
1 The court recognizes that the·funds available may in fact be less than $2,000,000 and that as a practical matter there may be no distribution.
2 rnitially, the estimate
$1,415,000. Later the estimate
$2,300,000.
2
was
was
between
as high
$1 })its, ooo and
as $2»,'100, 000 to I
J 72A <D :ov. 8/82) I
• • . , ~ ·I -
! ~· ( Finally, when distribution is made, provisions .must be
I , i ft to protect CSX Transportation, Inc.'s claim in the event~that
is allowed.3
SO ORDERED.
DATED: FEB o 6 1SS9
I ' . ~ -~ . I ; I
'
A. Thomas Smallij
Bankruptcy Judge
, • ,.
made/
claim
3As noted in the Memorandum Opinion and Order ofiDecember 30, 1988, at footnote 14, the court has made no determination concern-ing the allocation of liability for clean up costs between Fred Webb, Inc and the debtor. This Memorandum Opinion and Order also does not address that issue.
3
l
< .• 7 -rrw1 e w:
LACY H. THOBNBUl{G
1' lTORNEY GENERll.t.
TO:
, &WW
•
FAX NUMBER: ;)___o 2
FROM: d~
TELEPHONE NUMBER:
SUBJECT: PG_'i
CA FIB ¥91--~@ffl •
State of North Carolina
Department of Justice
r
P.O. BOX 62!)
RALEIGH
27602-0629
h to -J c. '-Ir
s-c.. Tl
(919) ;33-y(,/</
NUMBER (IF PAGES INCLUDING COVER SHEET: t
CONFIRM RECEIPT OF DOCUMENT(S) IF MARKED HERE:
COMMENTS:
• I
\
t
' I, i , ' \
w
I '
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w " ' -, '
· . , , . ,,:"'-•.litr,i)r,:r,..,i ~ 1 •~" ...
1de lo the :·· Fire ·on stretcher: .,., k'Hl h;d; ~h;~ed, ilp 'one-fifth' of his-tlli' ' , .
s. Fourrh.,· ,,,q• ••:;·~~0: ·t1rn•.·1•.J ·i;. ~.;-: :._· .. ,'.;1!/:!U. ",r;::;,Ji .. : ; :•,_:•,:' ';, ·~;·d_(l"" ••. " ·'••z:,\..\·'~-;•,( ·-•1:i--. 1~,!:-:i
to Contact, . burns 1W -e patait ,;,;ni ;.:,,,.~ ,,,11_,c,:,, ::·',.,,,ie . ·'1\.,··::•1!1·, 1.a· .. , '. .,,._r, __ . ,_,,,.,,:, '·•·;,,,,c.:
1~_'.k~.'./';i'.',:.;'' ;, )/'~;;;: wh~1-~ppar~nt-ias"'' c·-. o·"•n•'·, 1· 'r'' o'''lle'""r· 1•n•:o,,;. ...... . ·n· •J-ad n'""•a'. ·m'. •e'''d·,i_:<"'l_ ..
:.1•••· • • : 1·-1 tr" ir:, 'tCi.'SmOkC1. ad' arett~;Mori:.i:f: ' . . . ft r. B.. __ ~ •::::t.1~·
C .,, .. ,d:y,~ight whffe''beiJg'treiited'ln;"''-: .. --; •• , ·,:. ' .. ,,_,,., .• ,,;' .... .-,.,., . ,· .. ' ' .· .,, .. "' :_--·:·::•-<·
,, . .,-:; .. ihe, einei-gencf'•fooin-at'·Wake ,, chief of air traffic at RDU;,, :''''.,i
1• ' · ·• .. !.'·'·" Medical Center was burned when-_ _-·. : . : , _ .. . _ ._ -, · . . _ _ _ . _ _ .: -_ '.
, _ his padded stretch.er caught fir_ e,;,, ,'.: w· ·a'tt--e• >L· -~,'eol·VUI. ,· 'a',--.,. ear:'• •,·· Mr.. Colvin ... wilt .assume, ·!\is'(
' · '' " , .... · · · ' 'd '11 ' ~c H l / • ! ·" • ' · { ...-y '' · ' · • • ·· • · '-'-"..i "ril'· · ~_.
f _ ::-authoribe~ sa1 --~.r ... .;:; , ~-· • ~~Jteran'iJ 'aihrai!lc'-co~tfol has' 1 duti~s;at:RDU by.-earty _Ap auu~
ilhfield~•-_· ;-,--··Andrew .McClain, 52, of 402 E. bee·_ -d h" 1. . t 11. ' will earn an annual .salary of
•... ·:-.1 ",i:; ·•r, .. -·•·· · . .. ·. d .· tl n.name c 1e all' ra 1c con-. · .d
_;_ .. ,·:.i. •u•l!_argett St,; receive_ .,mos y, 'ti-oller"afRaleigh-Durhain Inter---about $60,000;Mr:·.~yers sa_1 . ,·•
l.ue, Flo.. ' \ ,·0second-degree bums on 13 percent: _ :,. -1. ,. 11,.A' ,-· rt--·"', _ ...c . , , A native of Savaiinah/Gal,1 Mr'!'I
·,1,i' .... , ~·:r.t:ci ;s1-1 ·"1 h-•;, bo"d h ·1 I d · · · na iona trpQ 1 • · • d · I bL.
i .. Kenlv.<~-,,,, .. o is. y, OS_PI a an em~rgen-1::: •"·':' ,,,,_ .. ,., ... .-. _,_..,;11;,~;,. • :,-,,:'.::-..:.:_;,::..:. Q~l_yin said. ~~--~!!g~!'.__y,~ug_ ;:,i
;--'' '1'"' ·•·0:·•cy officials said. He-was-m·fall''' • ·H1s,;•appomtment was an-. the.RDU job. __ ,,, _,-.-, .. ·
IIS,h0.(~---~• /'.:".condition-Tuesday at N.C:'Memo-• ,: .nounced Tuesday by Roger s'" { ''.'Raleigl:i'.i)ui-ham'·is ·oriii'of the __
,\it;~;'b'"'.'' ';,'.~'rfal"'Hospltah ins.Chapel,1 Hill,'i a,, l Myers; a. Federal Aviation Admin' :_•; ·new' bub' facilities''" the potential-'
'. . hospital spokesman said. ·,111 -',uJ;:«istrationi spokesman, in Atlariti/:"'''f<ir cgr,iwtli 'is'''fliere;'' .. he''said;c'
nithfleld · · , -Mr Col · I · H -· · · ··· ... "'Ai 1· ".:.c,c
,1 .~, .. \-_~; 1~::. 1.;:~:.t::-•~.:,.,::.~ "' 1: . ~--; . i ·· -. . • v~ re~ a~es . ugJ:t E .. , r~.fe,;ring_ to , Ame~1~an:· r in~ .
~ch;va:,., , .. , .. , Hospital .security ·-had1 recom-,._ Sawyer Jr.; whoretu-ed m Decem,-:. hub for nortli-south flights. Amer1-_·
,, . -. ;.> .': :·m.e11ded · _Mr:~, _McClain· be, re--, ber. _ ·., .. ,_,•,!11:c---: .-. r, .. :,1 '_'1 , -:i-vn,,,,: can Jias 1!3'ilaily'departui-es; al)if ·
tYf'\OU~_,: .. ;,:,,strained_and•he·ha!l,_emptied hl!l,-.. ,1,·,·:--,.,; ,.·,:• ·,..,, ,., •:,: -,:. ,_,:,:,.,, ·.-:1•afrlirie''omcials have· said' they,
ton:N.c.< '·" :.~' pockets.;,~ ,the:, presence·,oc, a ..... , ,~:,,~~lyin,,.~, d~ depllly"a,u-, 'expect:to\hi/ve" about' 185_ daily'
,,.,,·security, ofhcer,l/:Wake-.Med. ,traffic,,_manager,. _a_t .-\tlftnla.s,,,.de 'iirtui:es by the middle of this
~ldsboro · , , spokesman Elizabeth .H, .Mc Rob-, Har~f1e_lq)nternat1onal :_ Airpo~,, . e~r;'' .,_ . e'.'': ,. 1, ., 1 , -. ,_ , iy-,_,;,,n;
neod c11, --.. " ··. erts said. He was being treated for. • 'the .. ~at1on,s, _se_c_ond:bus1est_. air;; Y Mr' ·coiviri"sald he was interest!'_
. b . : port. As ~econd m command,. he .. ,, ... -,, ... -., · "J d" 1 1--· •-
. • • a. errua. , . -, .10• . 1 11 d ed m expenmenta -ra ar es 1ng
.aGronge ,. : . ~--. ..:., ~-·, .. , ·. ·1·•· .. _,,· .-.. -supervises . ;:, ,con ro ers_f'.~ .,.,., 'h d 1 d t 1·k ... , ce at RD\f'
,, -.-.,,,. : ·"" _, H~spital offiCifi_ls, __ don'.t,, ~~oV(,., supervisors:)ri ,1988, the_re were,,_ sc_ ~ u e 0, ,.3..~ Pa
lllom5!on ·:·':where _Mr. McCl~ip got \h_e,c1ga-., 970,000 landings ;md takeoffs at th1s year. . . , . . ,.,
'. ... Otway -retie ~~d' matc_~7s, Ms.' Mc1,lo~.:'.', Hartsfield ... : -. ; ·, '. ';'.'. ,,,, ,, ., . .Jm-,· .. , "_And, I underst~n~.1t s an mter, ;
,. , . erts;_sa1d: He was out of the At·RDU,,!1e will supervtse .73; .. ,es!m!! place to h,~,--Mr. Colv_~
;8er!1O'?" . _ _;. r_e~_train\,;'~nd ~~ding up ":'~en:(,;. rAA employees, indtiding 45 cotj-' .-said ma telephone mt~";'.'Y'.1,ror_n
1enderson nurse hurried mto the room after !rollers. There were 273,857. land-, ,-,.\~\!.H_af~fielf~ower. _ . . . __ .
, ... :;·,.~;;~_;, ·.:·,0seein~fthe'smoke, she said. · ings and takeoffs at RDU in 1988. · --DUDLEY PRICE
.. Coler~!I"! .Y :·:;M ::i::~,.: .----· ---·-··----·; ,.
·; ··• , .. ,·; _,:1'.!. ·1., rJ,· !,~t·•,t.-·••---~--1 .-·-·:---_; .~~,~,½•J _r11· !pr-f ... r,r1.,·1,-1\·-1
,r9ntsboro .. ,,_;• ..... , .... ,.,. 1.-,,;_.,:-'r -;,,!J-, : _; ,,;J•-, "-: .•. •~h, :: ,. •.. .1.1
: .w,111,a;d • · .. ~p A study of Beaufort dump urged ..
.:~eouforf : ..... · . . ·~;, . .
en Springs . · ,~ ·:::1_:2.;
.. Carthage.:~, ..
'",'-'.'"GREENVILLE._:-The -E~'vii-~n~ ; pinpoinfuie sou!'ce of heavy metal!
; _ 'mental Protection Agericy'is com'.: c<intanhri~ticii{ and.' det~rmine;
•::, pleting the'cleanup of a'former: whether, I\ was·: 1eaking into_'.
:~:-·pestkide dump in Beaufort CoUn: 1 groundw'at~r: !;le said it could_ tak~
, ·. ty amid calls for immediate stud-• from one to five years for the EPA
.,,: •ies. to determine whether pollut-" • t<i condu<,t an ad',(ltiite_ g~ul)dW~:
wunt Olive . .-_ -ants from _the site are.leaking into · ter study, · ·, · . _ · _,. :·: ,, -',.
·eheaddt~ ,, -'•tnearbyviateis .. ·. ·.-:,· . :': . '.'We .. believ~'i:~'i,;·gi~~-"t~
: .,, . ., . .,_ · -,.,-. ,While .. Ei:'A offtc1als say prehm1-: indication of what we're seeing
.Smllhfield , ,. n_ary morutoring indicates there ! groundwater assessment needs t~
.. Abe;de~~--r-·-,1 :·~been no groundwater contam: be done right aV;1ay· rather thari
mation, r~searc,hers a~ environ-, waiting," he said. ~ , . ,'. · ,, __ -. ,,"_
.. ,F?i~mOllt,__ .. ,. mentalists·seek a more thorough: · ,-•·._ . : ,_ '. ''•':'..: '•-:--
_5,,;,n.-o-assessment:' EPA' has· removed!· · Dr. Stanley-~:·R1ggs; an ECU
• ·-ac,-u,, ;~-:about 2,lro'tbns 'ofcontaminated: ge<>logy :profes~·~~•-dfrecti[d
;•)•.•.·~ •~ .. H.~;~~::
··. :; .. , .. , Our Quality And . .
:, Wqrkmanship Is Outstanding
.. , l.1 '. . . • . ..
... , RIDGEWOOD SHOPPING CENTER
. ,, "·"' · 'TEl. [phone] --.
. ' . ·,•• .' •~ ' 'I
n--'1. Mitdief£ ·
" i ·. :. ;,. ·_1._,.'.
,,, Funeral Home'·:,
\:_.:;:,··00~:~1.i ~~~·~ st.:i·; ... :\
._.,,_,, ''Raleigh, -NC, 27605' ,l ·::
... ,,.,,_ _.,· ... 8~2-3760· '-·-·1 _,., ., ~
1:,i~! .Fl;_~ 11 .. ._,,, l •J!C,:'.•1·: •. -~
Service.Since1t874 ,,,: ,,,,
... Wlltlwood" -· ... ·'ii · db -;;,,--. ti "d ·-,f." th-·, the-heavy metal research; said
,,•·, ..•.. , :,-so an .. un.,..pes c1 es rom e, "'·~"" . -, . . .. ....
lzaliet~t(,:_;,n',~:;, ,;; site;of:·a· forrt1er FCX:'Iric, farm_, •=ay---that he-could not say .. ,;, .,,. ;,,.,-,,:i. • ,-..... , ·.,
··:.'.~~;~f Z l};r~Tlie~~;~~la~t\!.:hl:;:~'.; jl wtfh!e~re~buwtheast =tbeah·~piro~bl~:~;~!hb'~~;: -~_;r._. ~--~-' r,,•_._,'' .:.:•,)_ .. :(_'::;,';
F oak'"':;;,-_ Slu:1lsnearKennedyCreek··, _ , _ ·' em .. , .. , eres, ..
... our •_, ,., ;,.,'~_tributary pf the Pamlico River:-' been enough work done on beavt-·i,i; ,Hearing.Instruments., :,;,
.... SnowHHI-:". ":••where researchers at East Caro-· metals mother systems to know' ·: Why Settle For I:.essh-
.... :sile~c1.'.':;:,~· ,'::'.;.1iiia' University baire found high, that we don't have to complete all·. '"' FREE HEARING TESTS,;
,,_.,.,_.',·•1_,;i._.,1e·.-.;,1s·.0·t·heavy·metalsm" -,,...,,.k' ourresearcbstudiestosaythere· _ ..... ,. · · -·. ,,, ... ,, ·· ', i_'_j.:,.
' --, ... .-"M:;tlb no\. V'-1 . a• J ' • .......... i • obi "be 'd I are a!Ways avaslable In our offices or ·,
.Mo1;1nt()l ~i:, •.-,.se<fime:nts!.;r'h~)"';,; ;_: t . .,: .,.;,.~·"' .~,w ,.; ; U~.a pr e~; Sat • i1 ,,;fl ::11.1'·\ In your home. Asfl: aboul' OU, riew , : "
Pl~~~i;.-~, ;~,;,"navid'A:'.McNa~t:·executive ! _Scientists saybeavy metals are DlgllalHealfnglnstrumenla:W,,can,' ·! j .
..... , ··""-;,!).\·~ ~;•'dJrecW'.of the Pamlico-Tar River toxins, that. can: weaken fish and· help_y<iu hearbe~~b;ll_--lo ·10011,; • ( f
.... F~ur,oa,k_~,' ,.,.F.oundahon,:'an,,erivironmental' make ~,inare susceptible.to, "'"'Ralelgh'8:!4 6440'.,·.,,, . ,f 1·
...... Piltsboro.,o, -,, group bas~ Iii Washington, N.C.~ I iJlness,,,,,t :;,,c,d nt;I ,!nl'(tj ,:,qn'1 _ ·" Garner,;~72~1442'::';1' , .i,
___ ,._-·_,_ .. ...,:.:said more'-studies would help l ·t\01 i«1 l ~-.JERRY ALLECOOD' .............. "'!ll-•1111---"! ,,
.,.,,,,.,.-.: •' ' .. ·1. ~-• -'I .'! :J.•:1:'Ct . ' .• ·: !l,!'J:1,.:·l ,,,Pl ,111\':, .-1:,., •• : \ f I
\, 1• ·-~"• ·;,,,, , I ,·j .,i•:i,• •r."',!-lf ') I ')'y' ,ti •~,
,, , ,,~-... -, r.·•• 1 e, _. "t"i".\;'iil.'AQ ~ OJ:"'-;1:! .. '10'A -1 ·''i' ·-·•· · 1
'
.. ''. · .. ·. '"' •".!,""i-l"~:"1'.~'-; ., .... :., .. ' '' ·--' ',., : .. ; :i .
. ·-,.,·-.•-... ,,,,,..-,,,_~.,:~•~--,c.-~----:.:"#c:;,.-::.l·:,--·d..--.:O.-'•·v·~;,;-~:. :· '· .. :,··.::,·· ,·,,; -· ,, ,, ,' •\•· ,· ,.,,, .. .-....•
-. ~ . -:. . ~•-,.. _ _. ... i"'?.f•_f'.;;-S~~------·· _..l~.&~...,... .
.... _.,.·-.~--..... ~ -. . .
IN ~ STATES Bl\NKRlJPICY axJRr •
'IHE El\STERN DISTRICT OF NORI'H CAROLINA
case No. S-85-01574-5
IN RE:
FCX, Inc.,
Debtor
)
)
)
)
)
)
IN PROCEEDINGS FOR
'IHE REORGANIZATION
OF A CDRroRATION
OiAPI'ERll
CASE NUMBER S-85-01574-5
AFFIDiWIT OF IDIS B. WAll<ER, Di\TA MANAGEl-lENl' CDORDINA'IOR,
SUPERFUND BRANQI, SOLID WASTE MANAGEl-lENl' SECrION, DIVISION OF
HFALTH SERVICES, DEPARIMENT OF HUMAN RESaJRCES, STATE OF NORI'H
CAROLINA.
IDis B. Walker, being first duly sworn, says;
1) that she is the Data Management Coordinator of the
North carolina Superfurrl Branch, an agency of the State of
North carolina, in the office located at 401 Oberlin Road in
Raleigh, North carolina, and is duly authorized by the North
carolina Superfurrl Branch Head to make this affidavit on its
behalf;
2) that from and after 1 July 1985, she was the Data
Management Coordinator of the North carolina CERCIA Unit
which later became the North carolina SUperfund Branch
and, as the Data Management Coordinator and custodian of
these records, has provided an analysis surnnary of the Cost
Re=very records of that Branch concerning the
investigations completed by the Branch staff at the fonner
FCX facility in Statesville, North carolina and at the
fonner FCX facility in Washington, North carolina; and
3) that the attached Cost Recovery fonns from and after
17 october 1988, expense accounts, travel logs, telephone
logs, invoices and bills are true and correct copies of the
originals;
all sta,... this the J µj day of J~, ~
~)&,
'Affiant ,
Subscribed ~ sworn to before me
t.'iis the Jtc(day of January, 1989.
. · "-/) ~ <iJ. {J[H:jryo/\1--f!if~ Public
. 1-1y Commission Expires } -;). -I 0-'? 9
• •
North Carolina Department of Human Resources
Division of Health Services
P.O. Box 2091 • Raleigh, North Carolina 27602-2091
James G. Martin, Governor
David T. Flaherty, Secretary
Ronald H. Levine, M.D., M.P.H.
State Health Director
DATE: 6 October 1988
TO: File
FROM: Grover Nicholson
RE: FCX -Washington
On 5 October 1988, Nancy Scott, the Section Attorney, told me that EPA
had rescinded both. clean-up orders (one to FCX and one to Fred Webb) and were
presently on site and apparently removing the wastes from the trench. I spoke
with Lee Crosby about this and she said.that EPA was digging in the trench as
part of a pre-removal investigation. Pesticide bags had been found with the
names of FCX facilities in Statesville, Washington, Lumberton, and South
Carolina. She asked me to check out the location and history of the Lumberton
FCX facility and to investigate the reported contamination in Cleon Latham's
well. DDT and chlordane pesticide concentrations in the trench soil were
reported as in the 100,000 to 400,000 ppm range.
On 6 October 1988, I spoke with Bill Klutz, [phone], the USEPA
OSC for FCX -_Washington. He repeated what Lee had told me. He also said
that the FCX backruptcy had been changed from a Chapter 11 to Chapter 7.
This change apparently means that the bankruptcy judge is the only one who
can disburse funds and that FCX could not respond to the clean-up orders by
spending money on removal. Bill further said that the EPA contractor., 0. H.
Materials, was on site 29-30 October and dug into the trench. A geophysical
survey and an interview with Cleon Lathan, coupled with the backhoe digging,
led to the location of two trenches and several pits and holes where pesticides
were buried. More. waste than previously estimated was found.
Bill expects to be at the 18 October hearing and is briefing the EPA
attorney, Marsha Owens, [phone]. She may also be at the hearing.
GN:gl
/
DATE:
TO:
FROM:
RE:
•
3 October 1988
File
Grover Nicholson f/.J4-f-
FCX -Washington
•
Today I spoke by telephone with Mariam K. Jernigan, the attorney
for Fred Webb. She or her representative will call me Wednesday
morning and make arrangements to come in and copy the FCX -Washington
HRS package.
Her affiliation is with Ward and Smith, P. 0. Box 867, New Bern;
NC 28560, 919-633-1000.
GN:gl
TO:
FROM:
RE:
•
11 August 1988
File
Grover Nicholson
FCX-Washington
•
on 5 August and again on 10 August 1988, I spoke over
the telephone with Arch Purcell of Rose and Purcell,
919-323-3400. He represents FCX as a consulting engineer.
He was interested in trying to reduce the HRS score for
FCX-Washington by recalculating waste quantities and
remeasuring the distance to the nearest well. He was also
planning to install 5 monitoring wells around the trench in
an effort to show that no groundwater contamination existed.
Mr. Purcell was planning to interpret the expected lack of
contamination as "complete waste containment" which would
allow the HRS score to become zero.
I explained to Mr. Purcell that showing no groundwater
contamination would not make the waste containment value
zero under HRS guidelines. I told him that any efforts
toward refining the HRS calculations, such as recalculating
waste quantities and distances to wells, would be legitimate
ways to reduce the score. However, the waste types and
quantities for HRS purposes, are ranked ''as deposited'' and
no remedial actions, such as trying to line the trench,
would affect the HRS score.
Mr. Purcell also wanted my opinion on installing five
monitoring wells instead· of the four wells called for in the
"state recommendation". I explained that the four well
specification was simply a method that was used to estimate
remedial investigation costs.
I relayed this information to the Section Attorney,
Nancy Scott, 733-4618, on 10 August 1988.
GN/ds/ibm.1