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PCB Sediment Cleanup Case Settled for $366 Million by Single Defendant, With Reopener for NRD

EPA Region 1 and the Massachusetts Department of Environmental Protection announced recently the largest ever single-site Superfund “cash-out” settlement, $366.25 million (plus interest), associated with the New Bedford Harbor Superfund Site in New Bedford, Massachusetts.

The Supplemental Consent Decree, negotiated by the U.S. Department of Justice and Massachusetts Attorney General’s Office and currently subject to public notice and comment, requires funding of remedial costs by AVX Corporation (a consolidated subsidiary of Kyocera Corporation) to pay for dredging and disposal of harbor sediments contaminated with polychlorinated biphenyls (PCBs). According to a press release issued by the company, “AVX’s involvement in this site arose from the operations of an alleged legal predecessor, Aerovox Corporation, which produced liquid filled capacitors adjacent to the harbor from the late 1930s through the early 1970s. Subsequent owners of the facility are dissolved or in bankruptcy. AVX itself never produced this type of capacitor, nor does it do so today.”

The recent settlement supplements a 1992 Consent Decree for the New Bedford Harbor Site in which AVX previously agreed to pay $59 million in past costs and $7 million in natural resource damages (NRD). The government has indicated that it is retaining its rights to seek additional NRD under a reopener from the 1992 Consent Decree despite the cash-out nature of the settlement. EPA alleges that the cleanup timeframe will take five to seven years, in contrast to the more than 40 years expected before the settlement.

This latest CERCLA settlement reaffirms the attention that EPA is focusing on sediment cleanup and PCB cleanup cases, as also evidenced by other notable cleanup efforts around the country.