[Federal Register Volume 84, Number 49 (Wednesday, March 13, 2019)]
[Notices]
[Page 9138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-04606]


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DEPARTMENT OF JUSTICE


Notice of Lodging of Proposed Consent Decree Under The 
Comprehensive Environmental Response, Compensation, and Liability Act

    On March 7, 2019, the Department of Justice lodged for public 
comment a Consent Decree with defendants Atlantic Wood Industries, Inc. 
(AWI), and Atlantic Metrocast, Inc. (AMI), in the United States 
District Court for the Eastern District of Virginia, Norfolk Division, 
Civil Action No. 2:19-cv-00109. The proposed consent decree resolves 
claims in a complaint that the United States on behalf of EPA filed in 
the Eastern District of Virginia asserting claims under Section 
107(a)(1) and (2) of the Comprehensive Environmental Response, 
Compensation, and Liability Act (``CERCLA''), 42 U.S.C. 9607(a)(1) and 
(2), against AWI as former owner and operator and current owner of the 
AWI Superfund Site, located in Portsmouth, Virginia; and against its 
subsidiary AMI as a current operator of the Site. The Complaint also 
includes a claim on behalf of the Department of the Interior (DOI) 
through the Fish and Wildlife Service and the National Oceanic and 
Atmospheric Administration (NOAA) against AWI and AMI under CERCLA 
Section 107(a)(4)(C) for natural resources damages. The Commonwealth of 
Virginia also will file an uncontested motion to intervene in the case 
to assert claims against the United States on behalf of the Navy and 
against AWI and AMI under CERCLA and Virginia law, which will also be 
resolved through the proposed consent decree.
    Under the proposed decree, AWI will pay $250,000 with interest to 
Plaintiffs, with $75,000 to the United States on behalf of EPA, and 
$175,000 to Virginia, in ten installment payments over nine years from 
entry. It also agrees to retain $15 million in CERCLA liability and a 
lien on its real property against that liability, which liability and 
lien will be reduced to fifty percent of the appraised value of the 
property after nine years from entry of the Consent Decree, when EPA 
expects the cleanup to be complete. AWI further concedes title to 
Virginia to new land that was created along its waterfront as part of 
the remedial action, and Virginia and EPA agree to a division of rental 
income or sales proceeds in connection with that new land. AWI agrees 
as part of the settlement to an environmental covenant which will 
impose institutional controls on its use of the property and which AWI/
AMI will record so that it will run with the land. Finally, AWI agrees 
to perform proper operation and maintenance on its property, both in 
the Consent Decree and in a detailed appendix.
    The United States on behalf of the Navy and the Department of 
Defense (``DOD'') resolves its potential liability to AWI in the 
proposed decree, and pays its equitable share of response costs at the 
Site through a payment of $55,325,966 to EPA from the Judgment Fund. 
The United Sates will also pay $8.5 million to Virginia from the 
Judgment Fund for its share of Virginia's past costs and of the costs 
of Virginia's future operation and maintenance of the Site. The Navy 
and DOD and Virginia have agreed that if EPA requires future 
groundwater treatment, then the Navy and DOD will pay 50% of Virginia's 
response costs under a ``pay go'' arrangement where Virginia pays the 
treatment costs up front and invoices 50% of the costs to the Navy and 
DOD on a regular basis.
    The proposed Consent Decree also resolves the claims against the 
Navy and DOD for natural resource damages of NOAA, DOI, and the 
Commonwealth of Virginia by payment from the Judgment Fund of (1) $ 1.5 
million to Virginia to fund oyster restoration in the Southern or 
Eastern Elizabeth River; and (2) $94,660 to NOAA and DOI for their past 
costs.
    The Consent Decree contains standard CERCLA covenants and 
reservations, as well as a reopener for CERCLA natural resource damage 
claims.
    AWI agrees in the proposed Consent Decree to dismiss with prejudice 
its petition for review in Atlantic Wood Industries, Inc. v. EPA (D.C. 
Cir.) contending that EPA's record of decision impermissibly amends the 
NPL listing for the Site by expanding the Site boundaries to include 
sediments in the Elizabeth River.
    The publication of this notice opens a period for public comment on 
the Consent Decree. Comments should be addressed to the Acting 
Assistant Attorney General, Environment and Natural Resources Division, 
and should refer to United States v. Atlantic Wood Industries, et al., 
Civil Action No. 2:19-cv-00109, DOJ # 90-11-3-580/1. All comments must 
be submitted no later than 30 days after the publication date of this 
notice. Comments may be submitted either by email or by mail:

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         To submit comments:                     Send them to:
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By email............................  [email protected].
By mail.............................  Assistant Attorney General, U.S.
                                       DOJ--ENRD, P.O. Box 7611,
                                       Washington, D.C. 20044-7611.
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    During the public comment period, the Consent Decree may be 
examined and downloaded at this Justice Department website: https://www.justice.gov/enrd/consent-decrees. We will provide a paper copy of 
the Consent Decree upon written request and payment of reproduction 
costs. Please mail your request and payment to: Consent Decree Library, 
U.S. DOJ--ENRD, P.O. Box 7611, Washington, DC 20044-7611.
    Please enclose a check or money order for $ 31.50 (25 cents per 
page reproduction cost) payable to the United States Treasury. For a 
paper copy without the exhibits, the cost is $22.50.

Jeffrey Sands,
Assistant Section Chief, Environmental Enforcement Section, Environment 
and Natural Resources Division.
[FR Doc. 2019-04606 Filed 3-12-19; 8:45 am]
 BILLING CODE 4410-15-P