EPA Action Memo- Request for a Time-Critical Removal Action at the Kip Nelson Properties (ABC Services), Kenosha, Kensoha County, Wisconsin

Written to, Willam Muno, regarding of approval funding for the removal action at the Kip Nelson Properties, in Kenosha, Wisconsin. Sent to to William Muno, through Richard Karl.

000000204074

2003-07-30 00:00:00.0

WIN000508754

Kip Nelson/ABC Services

PDF

Environmental Protection Agency

Craig Thomas

Administrative Record

Emergency response & Removal

text

Kip Nelson properties

Waste materials

Hazardous materials

Environmental reporting

Midwest

Environmental Protection Agency

City of Kenosha

2003-07-03

Environmental Protection Agency

City of Kenosha

Copyright undetermined

eng

Kenosha, Wisconsin

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGIONS
-/
77 WEST JACKSON BOULEVARD
EPA Region 5 Records Ctr.
CHICAGO, IL 60604-3590
*i PROt

204074

jut 3 . 2003

^
REPLY TO THE ATTENTION OF

SE-5J

MEMORANDUM
DATE:
SUBJECT:

FROM:
TO:

THRU:

ACTION MEMORANDUM - Request for a Time-Critical Removal
Action at the Kip Nelson Properties (ABC Services) ,
Kenosha, Kenosha County, Wisconsin, (oi^^
Craig Thomas, On- Scene Coordinator
Emergency Response Section II
William Muno, Director
Superfund Division
Richard Karl, Chief p.
Emergency Response Branch
Site ID # B55S

I.

PURPOSE

The purpose of this memorandum is to document the approval of
$1,172,384 to conduct a time critical removal action at the Kip
Nelson Properties in Kenosha, Kenosha County, Wisconsin. This
funding is required to address improperly stored containers of
hazardous wastes and hazardous substances including organic
compounds such as benzene, 1 , 2-dichloroethane, heptachlor,
nitrobenzene, tetrachloroethene, and trichloroethylene, and
inorganic compounds such as chromium, lead, reactive sulfide,
selenium and silver. In addition, drum samples have indicated
exceedances for parameters such as flashpoint and pH, indicating
that the drums are hazardous . These substances were present at
concentrations significantly higher than those determined by U.S.
EPA to pose a threat to human health and the environment, and are
characteristically hazardous. Several of the samples collected
were obtained from unsecured drums & tankers located outside the
site fence. Further, potential contamination in soils underneath

Recycled/Recyclable . Printed with Vegetable Oil Based Inks on 100% Recycled Paper (50% Postconsumerl

and around the building foundations threaten to spread to surface
soils where it would be susceptible to run-off from the Site, or
to leaching into subsurface ground water'. Until addressed, the
wastes found in over 400 55-gallon drums, approximately 18 ASTs,
2 tankers, approximately 17 trailers,10 railroad tank cars, and
various smaller containers present at the Site pose potential
inhalation, ingestion, direct contact, and fire hazards to
surrounding occupants in this commercial area.
The 'site, as defined in the Wisconsin Department of Natural
Resources (WDNR) Request for Emergency Response Assistance,
consists of 4 properties located at 6000, 5910, 5800 and 5700
49th Street in Kenosha, Wisconsin.
WDNR initiated civil actions against Kip Nelson Services for
failing to restore the environment and minimize harmful effects
from hazardous substance discharges at the site. Merlin "Kip"
Nelson, the site owner and operator, entered into an interim
stipulation and preliminary injunction requiring him to
investigate and cleanup the facilities. The stipulation and
order of judgment were drafted by the Wisconsin Department of
Justice (WDOJ) and were signed on 12 Dec 00. However, citing
lack of funds, Mr. Nelson failed to comply with the full scope of
the stipulation. Therefore, WDNR requested the assistance of
U.S. EPA in investigating and possibly eliminating hazardous
substances at the site.
On 12 Dec 00 the State of Wisconsin filed an interim stipulation
and preliminary injunction against Merlin "Kip" Nelson requiring
the defendant to properly dispose of all wastes at his two
facilities (identified in the stipulation as 5800/5910 49ch
Street and 5700 49th Street) and investigate and remediate the
contamination at each of his facilities. The State of Wisconsin
filed this action in the Kenosha County, Circuit Court, Branch 5,
Case No. 2000 CV-000542(Attachment I).
Mr. Nelson hired Environmental Innovations, Inc. (El), to remove
wastes from the site. El discussed the site activities in a
letter dated October 30, 2002, addressed to Ms. Shanna Laube of
the WDNR. In this letter, El indicated that all non-fenced
perimeter sections of the site would be fenced and that a limited
excavation of contaminated soil at the 6000 and 5700 49th Street
properties had been scheduled for October 31, 2002. The El
letter also indicated that all open drums and containers of
liquids or wastes would be closed, covered, and moved inside the
building located at 6000 49ch Street and that five large tanks
were scheduled for cleanup and disposal by November 6, 2002.

In a letter to WDOJ dated November 1, 2002, El indicated that a
scrap dealer had removed approximately 75% of the scrap metal and
vehicles from the 6000 49th Street property. The letter also
states that on September 24, 2002, during the consolidation and
staging of waste oils, two releases occurred. Soil and waste oil
samples were collected, and results indicated that one of the
spill areas was hazardous, while the other spill area was nonhazardous. El proposed an interim corrective action that
involved soil excavation, sampling, and appropriate disposal.
The El letter also indicated that 5,516 gallons of waste oil was
removed from the 5910 49th Street property on October 4, 2002;
5,800 gallons of waste oil was removed on October 25, 2002; and a
additional 5,800 gallons of waste oil was removed on October 28,
2002. The El letter went on to state that the waste oil from
Tank 14 was disposed of as hazardous waste and that the water
from this tank was transferred to Tank 8, whose contents would be
disposed of as hazardous waste. The El letter mentions 10 ASTs,
including a Tank 8, at the site that contained petroleum or water
and waste oil sludge.
The exact locations of the ASTs and the
five large tanks that were to have been removed by November 6th,
2002 are unknown.
The Kip Nelson Properties (ABC Services) site is not included on
the National Priorities List (NPL). It is estimated that the time
critical removal action will require 72 on-site working days to
complete. This time critical removal action is the first CERCLA
removal at this Site.
II.

SITE CONDITIONS AND BACKGROUND

CERCLIS ID # WIN000508754
A. Physical Location
The Kip Nelson properties are located at 6000, 5910, 5800 and
5700 49th Street in Kenosha, Kenosha County, Wisconsin. The site
occupies 4 commercial lots in a primarily industrial area. The
site lies in the northeast quarter of Section 34, Township 2
North, Range 22 East. The geographic coordinates for the site
are latitude 42° 35' 31" north and longitude -87° 52' 51" west.
The site properties are bordered by commercial property to the
north and east, Greenbay Road to the west, and 49th street to the
south.
An environmental justice analysis has been prepared for the area
surrounding the Site (Attachment II). According to the Region 5
Superfund Environmental Justice Analysis, the group of residents

closest to the Site fall within census block group 2, with a
population of 1293 persons. Demographics for the residents in
this census group indicate 14% with a low-income, and 14% of
minority status. To meet the Environmental Justice (EJ) concern
criteria in Wisconsin, the area within 1 mile of the Site must
have a population that is at least 56% low-income and/or 18%
minority. Therefore, the Site does not meet the Region's EJ
criteria based on demographics, as identified in Region 5 Interim
Guidelines for Identifying and Addressing a Potential EJ Case,
June 1998.
B. Site Description and Background
WDNR initiated civil actions against Mr. Nelson for failing to
restore the environment and minimize harmful effects from
hazardous substance discharges at the site. Mr. Nelson, the site
owner and operator, was asked to sign a interim stipulation and
order of judgment for investigation and cleanup of the site
property and adjacent properties. The interim stipulation and
order of judgment were drafted by the Wisconsin Department of
Justice (WDOJ) and were signed on 12 Dec 00. However, Mr.
Nelson, citing financial problems, failed to adhere to the terms
of the stipulation. Therefore, WDNR requested the assistance of
U.S. EPA in investigating and possibly eliminating hazardous
substance discharges at the site. As stated previously, an
interim stipulation and preliminary injunction injunction was
issued by the State of Wisconsin to properly dispose of all
wastes, and investigate and remediate each of his facilities.
This interim stipulation and preliminary injunction is attached
as Attachment I.
6000 49th STREET PROPERTY

The property at this location contains one building located in
the eastern portion of the property. The property entrance is
through 49th Street by two gates, one of which is directly south
of the building. A dirt road encircles the building and connects
the two gates. A refrigeration room is located to the North of
the building. The building contained approximately 30 rows of
drums, and each row typically contained three to six drums.
START estimated that approximately 150 to 200 drums were present
in this building. These drums occupied 75 percent of the
building area. The eastern quarter of the building contained a
split level area, with office space on the top level and several

drums on the bottom level. The split-level roof appeared to have
buckled and posed a potential health and safety danger.
Breathing zone air monitoring readings were at background levels
in this building. Air monitoring for organic vapors of open
drums indicated readings of 0 to 200 ppm. The lighting in this
building was poor, and no sprinklers were observed in the
building. This building represents a potential fire hazard.
Two trailers located north of the building were filled with scrap
metal and machinery. In addition, several empty drums were
stacked north of the building. Three plastic tanks were located
northeast of the building, and three ASTs were located northeast
and west of the building. A sludge tank containing liquid &
sludge bottoms was located southeast of the building, and a
visibly stained area was observed around this sludge tank. Two
more ASTs were located at the southern property perimeter next to
the west gate. A trailer filled with drums was located at the
northwest corner of the property. Two dumpsters containing soil
and other materials was located in the northwest portion of the
property and was believed to have been left on site by cleanup
consultants conducting abatement actions at the property. A tire
pile containing scrap metal was located in the southwest part of
the property. Metal and scrap piles were observed all over the
property.
5910 49th STREET PROPERTY

The property at 5910 49th Street contains a concrete and a metal
building occupying a lot of approximately 0.4 acres. Mr. Nelson
began operations at this property in 1981, and acquired it by
land grant in October, 1983. Four 30-foot-long trailers were
located immediately northeast of the concrete building. These
trailers were filled with scrap, small machinery, tools, and 55gallon drums of unknown contents. Some of these drums were
empty. Another trailer north of the concrete building contained
8 to 12 drums. Two smaller trailers containing scrap metal and
small machinery were located northwest of the concrete building.
Prior to reconnaissance activities for the February 26th, 2003
removal assessment, START calibrated the organic vapor air
monitoring instrument; the total vapor analyzer (TVA-1000); and
the oxygen, carbon monoxide, and combustible gas monitoring
instrument (PhD Lite). The TVA-1000 and PhD Lite instruments did
not indicate any readings above background levels.

A reconnaissance of the concrete building was not conducted
because it was rented out and not considered part of the Kip
Nelson ABC Service operations.
The metal building is located west of the concrete building.
Three fuel oil ASTs were located northwest of the metal building.
Two trailers approximately 60 feet long each were located north
of the metal building along the northern perimeter of the
property. These trailers contained metal scrap. Several piles
of scrap and machinery were located next to these trailers. The
real estate agent representing Mr. Kip Nelson arrived on site and
opened the service door to the metal building.
The metal building consisted of an office area in the southeast
portion and a drum and warehouse area in the remainder of the
building. The metal building contained several rows of drums,
typically five to six in a row, along the entire length of the
building, with only a small crawl space between the rows. Over
150 drums, predominantly having a 55-gallon capacity, were
present in the building. The owner's consultant had moved all
drums from the open yard and staged them in the metal building
and in the building located at 6000 49ch Street property. No
sprinklers were observed in the building, and the lighting was
poor, raising a serious concern about fire hazard potential.
A small maintenance room in the southwestern corner of the metal
building contained several small 5-gallon containers. Breathing
zone air monitoring did not indicate any reading above background
levels in this room. Air monitoring using a TVA-1000 conducted
by a red drum with an open bung indicated over 200 ppm organic
vapors. Air monitoring of another drum marked "alcohol"
indicated over 1,400 ppm organic vapors at the drum's bung
opening.
After the building reconnaissance, U.S. EPA and START inspected
the open yard north of the metal building. A large trailer
containing scrap metal and machinery and a huge rack containing
machinery and empty plastic drums were located along the northern
perimeter of the northwestern portion of the property.
Immediately south of this trailer were four ASTs of unknown
contents. Two small heating oil tanks were located next to the
western wall of the metal building, one at the northern end and
one at the southern end. A soil-stained area was observed next
to the western wall of the metal building. Several trucks and
cars were also located in this area. Two 40-foot-long trailers
containing drums and small containers were located at the western
perimeter of the property. Three ASTs and a pile of machine
parts and tires were located next to the trailers, and a tanker

truck was located south of this pile. A truck containing drums
of unknown material was located southwest of the metal building
and east of the gate on 49th Street.
5800 49th STREET PROPERTY

The property at 5800 49th Street is an open yard containing two
40-foot-long trailers and one steel tanker marked "ABC-T-6801."
During the February 26ch, 2003 removal assessment, the steel tank
was estimated to be one-fourth to half full and to have a volume
of 2,000 to 3,000 gallons. Of the two trailers, the north
trailer contained over 100 5-gallon containers marked "Anti
Seize" and several chrome yellow containers marked "flammable."
The southern trailer contained over 50 drums of 55-gallon
capacity. One drum was labeled "TMS Solvent-Fluorocarbon. The
trailer also contained 8 to 10 cartons of aerosol cans.
5700 49th STREET PROPERTY

Mr. Nelson began ABC services at this location in 1974. The
property at 5700 49th Street contains several rail-car tankers in
various stages of dismantlement. Some of the dismantled and cut
open tanks contained oil or sludge. Tanks labeled "26 East" and
"27 East," had been cut open by the cleanup contractor, and the
tank contents had nearly overflowed, posing potential spillage
threats. Air monitoring inside the tank during the February 26th,
2003 removal assessment indicated 5 to 10 ppm organic vapors.
C. Current Site Conditions
WDNR provided U.S. EPA OSC Thomas with limited information on the
Kip Nelson site history, enforcement actions to date, and future
actions that WDNR believed were necessary for the site. After a
discussion of the site history with all parties, U.S. EPA, START,
and WDNR decided to conduct a site reconnaissance on 26 Feb 03.
On 26 Feb 03, U.S. EPA OSCs Craig Thomas and Steve Faryan and
START members Raghu Nagum and Scott Splittgerber were mobilized
to conduct a removal assessment at the Kip Nelson properties
resulting from storage of hundreds of drums of waste material.
U.S. EPA OSCs Thomas, Faryan and START arrived at Kip Nelson's
office at 5910 49ch street, and met with Dale Parker, an associate

of Mr. Nelson's who provided site access until Mr. Nelson
arrived.
Approximately two hundred five 55-gallon drums are present in the
building along with dozens of carboys and other miscellaneous ^
drum, five gallon, one gallon or other containers. Many of these
containers are filled or partially filled with liquids and
solids. Many of the drums or containers have no labeling, have
deteriorated and spilled their contents, and appear not to be
segregated in any exact manner.
The exact number of drums and containers present on the entire
site cannot be determined due to the extensive debris and
equipment piled on top of and mixed in among the containers
throughout the property. Also, a strong solvent odor was noted
in the pole barn on the 6000 49ch street location.
Drum samples D001 through D004 were collected from the building
at 6000 49ch Street. Drum sample D001 was collected from a blue
55-gallon plastic drum that had a reactive label on it. The D001
sample was liquid consisting of a clear brown top layer and a
cloudy brown bottom layer. Air monitoring of the sample using
the TVA-1000 indicated over 200 ppm organic vapors. Drum sample
D002 was collected from a 55-gallon cream fiber drum with a liner
labeled "Deoxidizer, Aluminum Cleaner". The DO02 sample was a
light-brown, single-phase, clear liquid. Air monitoring of the
sample using the TVA-1000 indicated over 10 ppm organic vapors.
Drum sample D003 was collected from a blue 55-gallon metal drum
labeled "propylene glycol" and "D004." The D003 sample was a
dark-brown, dense liquid. Air monitoring of the sample using the
TVA-1000 indicated 10 to 100 ppm organic vapors. Drum sample
D004 was collected from a 35-gallon green plastic drum marked
"D002" and consisted of a dark-brown liquid. Air monitoring of
the sample using the TVA-1000 indicated less than 5 ppm organic
vapors.
START then proceeded to the metal building at 5910 49ch Street and
collected drum samples D005 through D009. Drum sample D005 was
collected from a 55-gallon black metal drum and consisted of a
dark-brown liquid. Air monitoring of the sample using the TVA1000 indicated over 200 ppm organic vapors. Drum sample D006 was
collected from a 55-gallon black metal drum and consisted of a
clear, light-brown liquid. Air monitoring of the sample using
the TVA-1000 indicated over 400 ppm organic vapors. A duplicate
sample of D006 was collected and labeled D011. Drum sample D007
was collected from a 55-gallon black metal drum and consisted of
a clear, light-brown liquid. Air monitoring of the sample using
the TVA-1000 indicated over 1,400 ppm organic vapors. Drum

8

sample D008 was collected from a 55-gallon red metal drum and
consisted of a two-phase, dark-brown liquid. Air monitoring of
the sample using TVA-1000 indicated over 1,000 ppm organic
vapors. Drum sample D009 was collected from a 55-gallon green
plastic drum and consisted of a brown, dense liquid. Air
monitoring of the sample using the TVA-1000 indicated 200 to 300
ppm organic vapors.
START sampling activities on February 27, 2003, included
collection of samples from a tanker and a drum from the 5800 49th
Street property and from two rail-car tankers from the 5700 49th
Street property. Specifically, START collected tanker samples
T001 through T003 and drum sample D010. The tanker and rail-car
samples were collected by dipping glass sample bottles directly
into the liquid to be sampled. The drum sample was collected
using a dedicated drum thief and laboratory-provided glass sample
bottle.
At 5800 49ch Street, the tanker sample T001 consisted of a dense,
oily black liquid. Air monitoring of the sample using the TVA1000 indicated 25 to 50 ppm organic vapors. START collected drum
sample D010 from the southern trailer at 5800 49th Street from a
blue, 55-gallon metal drum marked "TMS Solvent-Fluorocarbon."
Drum sample D010 consisted of a clear brown liquid yielding a
TVA-1000 reading of over 1,000 ppm organic vapors.

*""r

At 5700 49ch Street, sample T002 was collected from the rail-car
tank marked "26 East." The sample consisted of a dense, oily
black liquid and was collected directly in the glass bottle by
dipping the bottle into the liquid through the opening on the
side of the tank. Air monitoring of the sample using the TVA1000 indicated 5 to 10 ppm organic vapors. Sample T003 was
collected from the rail-car tank marked "27 East" at 5700 49th
Street. The sample consisted of a dense, oily black liquid. Air
monitoring using the TVA-1000 indicated 5 to 10 ppm organic
vapors.
Two drum samples (D001 and D008) consisted of two-phase liquids,
requiring analysis of both layers. The analytical results of
duplicate drum sample D011 were comparable to results for
original drum sample D006.
Analytical parameters were selected based on potential disposal
requirements. All samples were tested for pH and flashpoint
except sample D011, which was not tested for pH. Samples T001
through T003 were also tested for percent chlorine composition.
Samples D001 through D009 were analyzed for reactive cyanide,
reactive sulfide, PCBs, and toxicity characteristic leaching

procedure (TCLP) volatile organic compounds (VOC), TCLP
semivolatile organic compounds (SVOC), and Resource Conservation
and Recovery Act (RCRA) metals. Sample D010 was analyzed for
TCLP VOCs and SVOCs only. Sample D011 was analyzed for TCLP
VOCs, and sample TO01 was analyzed for PCBs and TCLP VOCs and
SVOCs. Samples T002 and T003 were analyzed for TCLP metals and
PCBs. Samples D001 and D002 were also analyzed for TCLP
pesticides and herbicides.
Benzene, trichloroethylene, tetrachloroethene, and methyl ethyl
ketone were the most prevalent contaminants detected. Potential
site-related.threats were evaluated in relation to the
contaminants' ignitability, corrosivity, and reactivity against
criteria listed in 40 CFR, Parts 261.21, 261.22, and 261.23,
respectively. Toxicity characteristics of site contaminants were
evaluated against concentrations summarized in 40 CFR, Part
261.24, Table 1, "Maximum Concentration of Contaminants for the
Toxicity Characteristic."

•w

^^

Analytical results of eight samples and one duplicate sample
exceeded the TCLP concentrations of one or more constituents
listed in 40 CFR Part 261.24 Table 1, indicating hazardous waste
characteristics. Results for samples D001, D002, D007, D009, and
T001 exceeded TCLP regulatory limits for benzene. Analytical
results for D009 and T001 exceeded TCLP regulatory limits for
tetrachloroethene. Analytical results for D002 and D006 exceeded
TCLP regulatory limits for trichloroethylene. Analytical results
for D002, D006, and D011 exceeded TCLP regulatory limits for
trichloroethylene. Analytical results for D002 exceeded TCLP
regulatory limits for heptachlor (and its epoxide). TCLP RCRA
regulatory limits were exceeded for the following metals:
chromium in sample D003; selenium in samples D006 and D007; and
lead in sample D008. Drum sample D003 had a pH of 1.89 standard
units (SU) and is considered a corrosive liquid based on the
criterion of less than 2 SU. Drum sample D008 contained
10.0 mg/kg reactive sulfide and has a pH of 6.88 SU; therefore,
it is considered a reactive liquid. The flashpoints of D001,
D006, D007, and D011 are below the minimum temperature of 140 °F
and are considered ignitable liquids.
D. State and Local Authorities Roles
As described above, the State of Wisconsin entered into an
interim stipulation with Mr. Nelson and a preliminary injunction
was issued against him to properly dispose of all wastes at his
facilities and investigate and remediate the contamination at
those facilities. Mr. Nelson has not complied with the
10

stipulation and injunction based on claims of insufficient funds.
Neither Local Authorities or Wisconsin DNR have sufficient funds
to conduct cleanup activities at the Site. Therefore the State
of Wisconsin DNR has requested U.S. EPA assistance in addressing
the site contaminant concerns. U.S. EPA will inform WDNR of all
actions proposed or taken pertaining to the Site.
III. THREAT TO PUBLIC OR WELFARE OR THE ENVIRONMENT
Conditions present at the Kip Nelson site may constitute an
imminent and substantial threat to public health and welfare and
the environment, based upon considerations set forth in the
National Oil and Hazardous Substances Pollution Contingency Plan
(NCP), 40 CFR Section 300.415 (b)(2), and therefore justifies
that a time critical removal action be conducted at the Site.
These conditions include, but are not limited to, the following:
1)
Actual or potential exposure to nearby populations,
animals, or the food chain from hazardous substances,
pollutants, or contaminants;
This factor is present at the site due the existence of hazardous
wastes and hazardous substances including organic compounds such
as benzene, 1,2-dichloroethane, heptachlor, nitrobenzene,
tetrachloroethene, and trichloroethylene, inorganic compounds
such as chromium, lead, reactive sulfide, selenium and silver in
drummed wastes on site.
One leased building is occupied by an active business on the Kip
Nelson properties, portions of the site are unfenced and
completely unsecured, and the potential exists for older children
in the neighborhood to explore and vandalize the property and
encounter contamination. This concern makes it important that
access controls on the property be maintained and checked
frequently.
The Agency for Toxic Substances and Disease Registry (ATSDR)
states that human exposure to high levels of lead has the same
effects on the human body whether the exposure route is
inhalation or ingestion. Lead adversely effects the central
nervous system, especially in children. According to ATSDR, lead
exposure also damages the kidneys and reproductive system.
2) Hazardous substances or pollutants or contaminants in
drums, barrels, tanks, or other bulk storage containers,
that may pose a threat of release;

11

START documented the presence of approximately five aboveground
storage tanks, more than 400 55-gallon drums, dozens of carboys,
and more than 100 five gallon, one gallon or other various sized
containers. Floor staining or spilled material around the
containers indicated that some of the containers may be leaking
or spilling their contents onto the floor.
Groundwater at the site is thought to be between 5 and 7 feet
below ground surface; therefore, subsurface contamination may
come into contact with the groundwater.

3)
Actual or potential contamination
supplies or sensitive ecosystems;

of drinking water

The seasonal high water table in the spring, and normal rainfall
are not extraordinary conditions and will certainly continue to
occur in the future. These occurrences will also result in
increased additional surface soil contamination that continues to
present a long-term increased cancer risk to residents who
contact soils through normal uses of their properties.
4)
Weather conditions that may cause hazardous substances
or pollutants or contaminants to migrate or be released;

Kenosha County receives approximately 33 inches of rain each
year. Rain could allow site contaminants to flow off site to the
storm sewer system and eventually migrate off -site. It is
possible for rainwater to come in contact with contaminated
soils, or to overflow railroad tankers and then migrate to the
storm sewer system or adjacent properties. The seasonal high
water table in spring, and normal rainfall are not extraordinary
conditions and will certainly continue to occur in the future.
5)

Threat of fire or explosion;

This factor is present because many of the drums contain
flammable liquids and are stored in poorly lit buildings with no
fire suppression systems.
6)

High levels of hazardous substances or pollutants or
contaminants in soils largely at or near the surface
that may migrate;

In a letter dated November 1, 2002, Mr. Nelson's contractor,
Environment Innovations, Inc. indicated that two releases of

12

waste oil occurred on September 24, 2002 while consolidating and
staging waste oil and other materials. The letter indicated that
one of the soil samples from stained soils associated with these
releases showed that the soil was hazardous. As evidenced by the
most recent release to the environment, future releases are
imminent, potentially threatening public health and the
environment.
The seasonal high water table in spring, and normal rainfall are
not extraordinary conditions and will certainly continue to occur
in the future. These occurrences may also result in increased
additional surface soil contamination that continues to present a
long-term increased cancer risk to residents who contact these
soils.
IV.

ENDANGERMENT DETERMINATION

Present at the Kip Nelson Properties were improperly stored
containers of hazardous wastes and hazardous substances including
benzene, 1,2-dichloroethane, heptachlor, nitrobenzene,
tetrachloroethene, and trichloroethylene, chromium, lead,
reactive sulfide, selenium and silver. These substances were
present at concentrations significantly higher than those
determined by U.S. EPA to pose a threat to human health and the
environment.
Until addressed, the wastes present at the Site
pose potential inhalation, ingestion, direct contact hazards and
fire hazards to surrounding occupants in this residential and
commercial area.
Given the present Site conditions, the nature of hazardous
substances on-site, and the potential exposure pathways described
in section III above, actual or threatened releases of hazardous
substances from this Site, if not addressed by implementing the
response action selected in this action memorandum, presented or
may continue to present an imminent and substantial endangerment
to public health, or welfare, or the environment.
V.

PROPOSED ACTIONS AND ESTIMATED COSTS

1.

Proposed Action Description

13

The purpose of this removal action is to mitigate the imminent
and substantial threats posed to public health or welfare or the
environment from wastes stored at the Kip Nelson site. The
proposed time-critical emergency response action includes the
following actions:
1) Preparation and implementation of a site health and
safety plan.
2) Drums, smaller containers, floor sweepings, unknown
materials, facility contents, debris, and tanks will be
sampled, analyzed, categorized and staged for disposal.
Compatible waste streams will be bulked/re-containerized,
and appropriately prepared for disposal at off-site disposal
facilities.
3) Emptied tanks, piping, debris, drums and other containers
will be cleaned as necessary, cut to size and disposed of at
off-site disposal facilities.
4) Floors, walls, ceilings, building components and contents
will be cleaned and/or disposed of as reasonably possible to
remove contaminated dust and material to prevent contaminant
migration or cross contamination of cleaned areas.
5) Upon removal of debris and other materials within the
building, an assessment of the extent of contaminants in the
buildings, floor and under-lying soil resulting from
contaminant permeation will be carried out. Determine
potential and extent for soil contamination outside the
buildings.
Determine and/or take appropriate action to
address contamination associated with this assessment.
6) Site security measures will be implemented as necessary
to prevent access to contaminated areas.
Waste transportation and disposal will be handled in full
compliance with the Agency's Off-Site Rule 40 CFR Section
300.440, 58 Federal Register 49215 (September 22, 1993).
Provisions for post-removal site control are being planned by the
OSC consistent with the provisions of Sections 300.415(k) of the
NCP.

14

The response actions described in this memorandum directly
address actual or threatened releases of hazardous substances,
pollutants, or contaminants at the facility which may pose an
imminent and substantial endangerment to public health and
safety, and to the environment. These response actions do not
impose a burden on affected property disproportionate to the
extent to which that property contributes to the conditions being
addressed.
2.

Contribution to Remedial Performance

The Kip Nelson site is a non-NPL site for which remedial actions
have not been planned to date. The proposed removal action will
address all threats meeting the NCP Section 300.415(b)(2) removal
criteria as identified in Section III of this Action Memo.
3.

Applicable or Relevant and Appropriate Requirements (ARARs)

All Federal ARARs and any Wisconsin ARARs identified in a timely
manner will be complied with to the extent practicable. On 05
June 03 a letter was sent to Amy Walden of Wisconsin DNR
requesting identification of state ARARs.
4.

Project Schedule

It is estimated that the removal will be completed in seventytwo (72) 10-hour working days.
B. Estimated Costs

The estimated costs of the recommended action are summarized
below. The detailed Emergency and Rapid Response Services (ERRS)
contractor costs are presented in Attachment III. The estimated
costs are as follows:
EXTRAMURAL COSTS
Cleanup Contractor Costs
Total Cleanup Contractor Costs
(ERRS and subcontractors for the
proposed time-critical removal action

15

$783,660

which includes a 15% contingency, and
10% indirect costs).
Other Extramural Costs Not Funded from the
Regional Allowance:
Total START,.including multiplier costs

$193,327

Subtotal, Extramural Costs

$976,987

Extramural Costs Contingency
(20% of Subtotal, Extramural Costs)
TOTAL REMOVAL PROJECT CEILING

VI.

$ 195,397
$1,172,384

EXPECTED CHANGE IN THE SITUATION SHOULD ACTION BE DELAYED OR
NOT TAKEN

Delayed action will increase the likelihood of release of
hazardous substances to surrounding commercial properties, and
potentially to ground water.
Any such release or exposure will
contribute and ultimately lead to increased risks to public
health and the environment.
VII. OUTSTANDING POLICY ISSUES
There are no outstanding policy issues for the Kip Nelson
Properties site.
VII. ENFORCEMENT
For administrative purposes, information concerning the
enforcement strategy for this Site is contained in an Enforcement
Confidential Addendum (see Attachment IV).

16

The total EPA costs for this removal action based on full-cost
accounting practices that will be eligible for cost recovery are
estimated to be $ 1,697,320.
(1,172,384 + 28,080) + (42.38% x 1,172,384)= $1,697,320.1

IX.

RECOMMENDATION

This decision document represents the selected removal action for
the Kip Nelson Properties, Kenosha, Kenosha County, Wisconsin,
developed in accordance with CERCLA as amended, and is not
inconsistent with the NCP. This decision is based on the
Administrative Record for the site (see Attachment V).
Conditions at the Site meet the NCP Section 300.415 (b)(2)
criteria for a removal action and I recommend your formal
approval of the proposed removal actions.
The total project
ceiling, if approved, will be $1,172,384. Of this, an estimated
$783,660 comes from the Regional removal allowance. You may
indicate your decision by signing below:

APPROVE:

' W~~

£.

' r^/A***—•

DATE:

Director
T
Superfund Division

DISAPPROVE:

DATE:.

Director
Superfund Division

1
Direct Costs include extramural costs and direct intramural costs. Indirect
costs are calculated based on an estimated indirect cost rate expressed as a
percentage of site specific direct costs, consistent with the full cost accounting
methodology effective October 2, 2000. These estimates do not include pre-]udgment
interest, do not take into account other enforcement costs, including Department of
Justice costs, and may oe adjusted during the course of a removal action. The
estimates are for illustrative purposes only and their use is not intended to create
any rights for responsible parties. Neither the lack of a total cost estimate nor a
deviation of actual total costs from this estimate will affect the United States'
right to cost recovery.

17

ATTACHMENTS:

cc:

I.

INTERIM STIPULATION AND PRELIMINARY
INJUNCTION
II. REGION 5 EJ ANALYSIS
III. ERRS CONTRACTOR COSTS
IV. ENFORCEMENT CONFIDENTIAL ADDENDUM
V.
ADMINISTRATIVE RECORD

R. Worley, U.S. EPA HQ, 5202G
M. Chesik, U.S. DOI w/o Enf. Addendum
A. Walden, Wisconsin DNR w/o Enf. Addendum

18

ATTACHMENT I
Interim Stipulation and Preliminary Injunction
Kip Nelson Properties/ABC Services
Kenosha, Wisconsin

STATE OF WISCONSIN

CIRCUIT COURT
BRANCH 5

KENOSHA COUNTY

STATE OF WISCONSIN,
Plaintiff,

v.

Case No. 2000-CV-000542
UnekssifiediCivil:. 30703

MERLIN "KIP" NELSON, an
adult,
individually and
d/b/a KIP NELSON SERVICES,

FILED

Defendant.

INTERIM STIPULATION AND PRELIMINARY INJUNCTION

The plaintiff has moved for a preliminary injunction requiring defendant to
properly dispose of all wastes at his two facilities and to investigate and remediate the
contamination at each of his facilities.

The parties wish to settle this matter by

agreement, and therefore stipulate and agree as follows:
1.

Defendant shall promptly retain an Environmental Consultant to work at his

two facilities, located at 5800/5910 49th Street and at 5700 49th Street in Kenosha,
Wisconsin. By no later

shall inform DNR in writing

of the name, address and telephone number of his retained environmental consultant.
DNR notification shall be mailed or faxed to Michael Ellenbecker, Address: 953 1 Rayne

Road, Suite IV, Sturtevant, WI 53177. Phone: (262) 884-2342.. Fax: (262) 884-2307, Email: ellenm@mail01.dnr.state.wi.us.
2.

By no later than January 12, 2001, defendant through his consultant shall

submit to the DNR for review a comprehensive work plan for work needed to be done at
defendant's two facilities. The work plan shall contain at a minimum:
a)

A proposal to promptly identify all the wastes, waste-like materials, and all

other unidentified materials stored or present at each of defendant's two Kenosha
facilities cited above, and to then properly and legally dispose of all waste at those
facilities.

The identification of the waste, waste-like materials, and other currently

unidentified materials shall be presented to the DNR in a tabular/table format and shall at
a minimum include the following information: Volume of drum or container (i.e., 55gallons, 5-gallons), Type of drum or container (i.e., closed headed, open headed,
pressurized), Material used to construct drum or container (i.e., steel or plastic), Volume
of waste in drum or container (i.e., 1/3 full, 25 gallons, 75 pounds), Type of waste in
drum or container (i.e., paint waste, solvent waste, oil waste, unknown) and if it is a
hazardous waste, Description of waste in container (i.e., solid, liquid, gas, oily, red,
solvent odor), Description of drum or container (i.e., red drum), Description of integrity
of drum or container (i.e., DOT approved, Poor-5" hole on side of drum near top),
Description of any markings on the drum or container, Location of drum or container at
the facilities.

b)

A proposal to promptly undertake a comprehensive investigation at both of

the facilities, to determine the degree and extent of soil and/or groundwater
contamination present at the facilities.
c)

The work plan shall include a schedule for performing all of the proposed

work within a reasonable time frame, and at a minimum shall provide that all wastes be
disposed of by no later than May 1, 2001, and that the environmental investigation be
commenced by no later than .jJap^F^itS,; 2061^'
d)

A written bimonthly update shall be submitted to the DNR describing the

activities that have occurred at the facilities. The update shall be submitted on the 1st and
the 15th of each month, beginning on/Jajnjacjt 15,: 2901.
3.

*

Upon the approval or conditional approval of the work plan by the DNR,

defendant shall promptly commence the work outlined in the plan. Defendant shall
timely implement the work plan according to the schedule as approved or conditionally
approved by the DNR.
4.

The work plan and its implementation shall comply with all applicable

provisions of Wis. Admin. Code NR §§ 500-590, MR §§ 700-750 and NR §§ 600-685.
5.

Within 30 days of completing the work required by the above-cited plan,

defendant through his consultant shall submit to the DNR a report on all of the work done
pursuant to the plan. The report shall include recommendations for remediation of the
sites and a reasonable schedule for implementing the remediation.
6.

Upon the approval or conditional approval of the remediation plan by the

DNR, defendant shall promptly commence the remediation work outlined in the plan.

Defendant shall timely perform the remediation work according to the schedule as
approved or conditionally approved by the DNR.
7.

The remediation work plan and its implementation shall comply with all

applicable provisions of Wis. Admin. Code NR §§ 700-750, NR §§ 600-685 and NR §§
500-590.
8.

Under no circumstances shall defendant fail to do what is described above

in numbered paragraphs 1 to 7 on or before the dates set there. Failure to perform as
described by any required date shall be a material breach of this stipulation and may, at
plaintiffs discretion, result in additional forfeitures of not less than $200 per day. If
defendant breaches this stipulation, he shall reimburse the state for all costs and fees,
including attorney's fees, incurred in connection with any action or proceeding to enforce
this stipulation.
9.

It is agreed by plaintiff and defendant that this stipulation is entered into for

the purpose of resolving, without specific findings, only the motion for preliminary
injunction filed by the plaintiff on November 3, 2000. This agreement does not resolve,
and is not intended to resolve, all the allegations and demands for relief set forth in the
Complaint filed in court by the plaintiff on June 5, 2000.

-4-

10.

Nothing herein shall be construed to preclude the State from seeking

additional investigative or remedial measures, or other environmental remedies of any
kind at defendant's two facilities.

Dated:

.

Dated:

ft,

JAMES E. DOYLE
Attorney General

/

Arthur J. Morrissey, Jr.
State Bar No. M o t> '•U 3 s
Attorney for Defendant

Lorraine C. Stoltzfus
Assistant Attorney General
State Bar No. 1003676
Attorneys for Plaintiff

ORDER
The terms of the forepoing Interim Stipulation and Preliminary Injunction are
approved by and adopted as the order of this court. IT IS SO ORDERED.
Dated this \& day of December, 2000.
COURT: j7
BY THE COIJR

j^^^U^^
jce E. Schroeder
Kenosha County Circuit Court Judge

-5-

Attachment II
REGION 5 SUPERFUND EJ ANALYSIS
Kip Nelson Properties/ABC Services
Kenosha, Wisconsin

Region 5 Superfund EJ Analysis
Kip Nelson Properties Site

Kenosha, Wl
State of Wisconsin averages:
Minority: 9%
Low Income: 28%

U.S. EPA Region 5
Environmental Justice Case Criteria
for State of Wisconsin
Minority: 18% or greater
0

00

Low Income: 56% or greater

©__49ih.Si

0

A

Site Location

ATTACHMENT III
ERRS CONTRACTOR COSTS
Kip Nelson Properties/ABC Services
Kenosha, Wisconsin
PERSONNEL

$ 211,316

EQUIPMENT

139,740

TRANSPORTATION
and DISPOSAL

180,601

OTHER COSTS
TOTAL

87,837
$ 619.494

ATTACHMENT IV
ENFORCEMENT ADDENDUM
KIP NELSON PROPERTIES/ABC SERVICES
KENOSHA, ILLINOIS
JUNE 2003

ENFORCEMENT CONFIDENTIAL
NOT SUBJECT TO DISCOVERY
(REDACTED 3 PAGES)

NOT RELEVANT TO THE SELECTION OF THE REMOVAL ACTION

ATTACHMENT V
U.S. ENVIRONMENTAL PROTECTION AGENCY
REMOVAL ACTION
ADMINISTRATIVE RECORD
FOR
KIP NELSON PROPERTIES (ABC SERVICES) SITE
KENOSHA, KENOSHA COUNTY, WISCONSIN
ORIGINAL
JULY 23, 2003
NO.
1

AUTHOR

RECIPIENT

TITLE/DESCRIPTION

11/01/02

Herbert, P.,
Environmental
Innovations,
Inc.

Stoltzfus, L.
Wisconsin
Department
of Justice

Letter re: Bi-Monthly
Progress Update of the
Clean-up Efforts at the
Kip Nelson Services
Properties (09/16/0210/31/02)

2

11/07/02

Walden, A.,
WDNR

Bolen, B.,
U.S. EPA

Letter re: WDNR's Request
for U.S. EPA Assistance
at the Kip Nelson ABC
Services Site w/Attachment

3

05/30/03

TN &
Associates,
Inc.

Thomas, C.,
U.S. EPA

Removal Assessment Report
for the Kip Nelson Properties Site

06/05/03

Thomas, C.,
U.S. EPA

Walden, A.,
WDNR

Letter re: U.S. EPA's Request for all State ARARs
for the Kip Nelson Properties (ABC Services)
Site

07/15/03

Herbert, P.,
Environmental
Innovations,
Inc .

Thomas, C. ,
U.S. EPA

Letter re: Planned Actions
at Kip Nelson/ABC Services
5700 49th Street Parcel

00/00/00

Thomas, C. ,
U.S. EPA

Muno, W.,
U.S. EPA

Action Memorandum:
Request for a Time Critical Removal Action at
the Kip Nelson Properties
(ABC Services) Site
(PENDING)

DATE

PAGES

101