November 11, 2015 Articles

Emhart v. United States: Another Failed Attempt to Prove Divisibility under CERCLA

Add the Centredale Manor Restoration Project in North Providence, Rhode Island, to the list of sites where a court has denied a CERCLA divisibility defense.

James P. Ray and Megan E. Baroni – November 11, 2015

Add the Centredale Manor Restoration Project in North Providence, Rhode Island, to the list of sites where a court has denied a CERCLA divisibility defense. On September 17, 2015, Judge William Smith of the Rhode Island District Court, in a 186-page opinion, found Emhart Industries jointly and severally liable for past and future response costs at the Centredale Manor site.

The Centredale Manor Restoration Project Superfund Site

The Centredale Manor Restoration Project Superfund Site consists of a peninsula of about nine acres in the Woonasquatucket River in North Providence, Rhode Island, as well as portions of the river and ponds downstream of the peninsula. In the 1950s and 1960s, the peninsula was the home of Metro-Atlantic Chemical Company, Emhart’s predecessor, which operated a chemical manufacturing facility on a portion of the peninsula, and New England Container Company (NECC), a barrel reconditioning company. In the late 1960s and early 1970s, Metro-Atlantic and NECC relocated, and ultimately two apartment buildings were constructed on the site.

In the 1990s, the government found dioxins in fish in the river. The U.S. Environmental Protection Agency (EPA) subsequently found dioxins, polychlorinated biphenyls (PCBs), and other contaminants in river and pond sediments, floodplain soils, and soils at the peninsula. The EPA concluded that the dioxins and other contaminants came from the chemical manufacturing and barrel reclamation operations at the site.

The EPA placed the site on the National Priorities List in 2000. In the early 2000s, Emhart and NECC performed several removal actions at the site, including placing soil caps over dioxin-contaminated areas and removing dioxin-contaminated soil and sediments from residential properties along the river. In 2009, Emhart conducted a removal action to address the discharge of contaminated groundwater to the river. Emhart excavated contaminated soil in the area of one of the historic chemical manufacturing buildings and installed a Resource Conservation and Recovery Act (RCRA) cap in that area. In 2012, the EPA issued a record of decision, which contains a cost estimate of $104.6 million for the final remedy. The final remedy will include waste removal, placement of a RCRA cap on the remaining portion of the peninsula, dredging a substantial portion of the river and downstream ponds, construction of an upland confined disposal facility, and long-term maintenance and monitoring. Total costs, including past costs, will likely approach or exceed $150 million.

 

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