CD L P A COUNSELORS AT LAW FRANK J.CUMBERLAND OF COUNSEL SI EVEN S. KAUFMAN """"—— " FRANK R. DESANTIS jACK G DAY ROBERTA. BLA1TNER ANTHONY R. TROIA GA1LE.S1NDELL EDDA SARA POST WILLIAM W.JACOBS MITCHELL EHRENBERU THOMAS L. FEHER -___..- April 11, 1999 SUSAN L. BELMAN CHARLES P. ROYER CRAICiP. KVALE ROBIN M. WILSON ROBERT J. RATION United States Environmental Protection Agency Regional V Office of Public Affairs (P-19J) Attn: Ms. Denise Gawlinski 77 West Jackson Blvd. Chicago, IL 60604-3590 Re: Comments of the Board of Lake Township Trustees on the Proposed Changes to the Remedy at the Industrial Excess Landfill Superfund Site. Dear Ms. Gawlinski: Enclosed for inclusion in the administrative record for the Industrial Excess Landfill Superfund Site are the comments of the Board of Lake Township Trustees and accompanying documentation. By reference, we hereby incorporate as Exhibit A, the report entitled. Comments on the Existing Public Record for the Industrial Excess Landfill for the Revision of the 1989 Existing Record of Decision prepared by Bennett and Williams environmental Consultants, Inc. which is being forwarded under separate cover. If you have any questions, please feel free to contact me at the telephone number listed above. Truly Yours, Edda Sara Post Enclosures Cc: Board of Lake Township Trustees Frank Cumberland, Esq. David Herbert, Esq. •;\shared\cdda\0720lir.doc [216J861-0707 FAX: [916] 694-6883 TDD; (216) 694-6891 1500 REPUBLIC BUILDING, 25 PROSPECT AVENUE WEST. CLEVELAND. OHIO 44115-1000 E-MAIL: kclpa.com COMMENTS OF THE BOARD OF LAKE TOWNSHIP TRUSTEES ON THE PROPOSED CHANGES TO THE REMEDY AT THE INDUSTRIAL EXCESS LANDFILL SUPERFUND SITE Serious omissions of substantive evidence, mistakes of fact and substantive flaws in methodology exist in the administrative record supporting the proposed remedy. As a result of these mistakes, omissions and methodological flaws, the United States Environmental Protection Agency (USEPA) has failed to consider relevant factors and relied upon incomplete information in choosing the remedy for the Industrial Excess Landfill Superfund Site. No rational connection exists between the site conditions and the remedy selected. Its adoption without further site characterization and assessment of the short and long term potential for adverse effects to human health and the environment, including an epidemiological study, is arbitrary, capricious and contrary to law. Promulgated under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.A. 9601 et seq. (CERCLA), the National Contingency Plan ("NCP"), 40 CFR Part 300, is the set of regulations establishing the national procedures and standards for responding to discharges of hazardous substances at sites on the National Priorities List ("NPL" or "Superfund Sites"). The Industrial Excess Landfill Site located in Uniontown, Ohio, Lake Township, Stark County Ohio (IEL) is such a site. Indeed, pursuant to CERCLA § 118 (42) U.S.C.A. 9618) because the release of hazardous substances from IEL has resulted in the closing of drinking water wells, and, as discussed herein, may require the expansion of the alternate water supply, this site is high priority. To fulfill its statutory duties and obligations at IEL. the USEPA must strictly comply with the procedures and standards set forth in the NCP during all phases of its response to the release of hazardous substances, including the remedial investigation, feasibility study, remedy selection, remedial design and remedial action. To do otherwise is contrary to law. In addition, any remedy selected by the USEPA must comply with applicable, relevant and appropriate requirements (ARARs) of state and federal law. In making a remedy selection decision, the USEPA must examine all the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choice made. Further, the agency must act in the public interest. U.S. v. Akzo Coatings of America, Inc., 949 F. 2d 1409, 1424-1426 (6th Cir. 1991); In the Matter of Bell Petroleum Services,3 F. 3d 889, 904 (5th Cir. 1993); Minnesota v. Kalman W. Abrams Metals, Inc. et al.« 155 F. 3d 1019 (8th Cir. 1998). If an agency fails to adequately study the nature and extent of the contamination problem prior to implementing a remedy, ignores warnings regarding the viability of a remedy, or denies the public a real opportunity to comment on a remedy, its remedy selection is arbitrary and capricious. Kalman W. Abrams Metals, Inc. at 1024. Similarly, relying upon an administrative record containing errors of procedure and serious omissions of substantive evidence is arbitrary and capricious. Akzo Coatings at 1425. Site Characterization and Remedy Selection. The national goal of the response process contained in CERCLA and the NCP is to select remedies that are protective of human health and the environment, maintain protection over time and minimize untreated waste. Remedies should eliminate, reduce, or control risks to human health and the environment. (40 CFR 300.430). Remedial actions in which treatment permanently and significantly reduces the volume, toxicity, mobility and bioaccumulation of the hazardous substances is preferred over remedial actions not involving such treatment (42 CFR § 9862 l(b), CERCLA § 1221(b)). To accomplish these goals, the NCP establishes a procedure and program principles, including use of operable units, complementary phasing of remedies, and gathering site specific data that reflects the scope and complexity of the site problems being addressed. The key to identifying and selecting a remedy and meeting the program goals and principles is developing a conceptual understanding of the site and its environs. That is accomplished through a site characterization to determine the nature and threat to human health and the environment posed by hazardous substances and to support the analysis and design of a remedy. The site characterization is required to assess (1) the physical characteristics of the site (surface features, soils, geology, hydrogeology, meteorology and ecology); (2) the air, surface water and groundwater; (3) the waste and its propensity to bioaccumulate, persist and move in the environment; (4) exposure pathways through environmental media; (5) exposure routes such as ingestion, inhalation, absorption through skin and (6) other factors (40 CFR §300.430(d)(2)). The site characterization requirement is mandatory. Without it, a conceptual model of the nature, transport and fate of the hazardous substances cannot be constructed. Without a conceptual model of what has and is occurring at the site and its environs, site-specific remedial alternatives protective of local human health and the environment cannot be identified. Development of remedial alternatives during the feasibility study and, ultimately, the implemented remedy, must be fully integrated with the site characterization so that a rational connection exists between the site conditions and the remedy selected. (40 CFR 300.430(e)(l)). In addition, the USEPA is required to identify applicable relevant and appropriate requirements (ARARs) related to the site and to incorporate them into the remedial design (42 U.S.C.A. § 962l(d), CERCLA §121(d)). To select a remedy without sufficient site characterization and supporting evidence confirming that the remedy will protect human health and the environment by permanently and significantly reducing the volume, toxicity. mobility and bioaccumulation of the hazardous substances, maintain protection over time and minimize untreated waste is contrary to law and arbitrary and capricious. In this instance, the USEPA has not completed a site characterization sufficient to determine the nature, transport and fate of contaminants and to identify and select a remedy meeting the goals of CERCLA for the 1EL Site, The report of Bennett & Williams (sent directly to the USEPA on April 12, 1999, to have been attached as Exhibit A hereto, complete with its accompanying Exhibits), presents a detailed discussion of the mistakes of fact, serious omissions of substantive evidence, flawed methodology and errors in scientific procedures found in the record. By way of example only, the geology and soils have been mischaracterized leading to incorrect assumptions relating to groundwater pH, the propensity of the soils to promote natural attenuation, contaminant fate, and transport and groundwater flow rates. True background wells have never been established, even though recommended by the Science Advisory Board. In some instances, including the 1998 groundwater sampling done by the PRPs, the detection limits used in laboratory analysis of water samples were above the Maximum Contaminant Levels (MCLs). the clean up standards adopted for groundwater. The ATSDR in its Health Consultation on the 1998 groundwater data, criticized the 1998 data on this basis as well. It is impossible to establish that groundwater meets the MCLs if the analytical method cannot even detect contaminants in that range. If the geological and hydrogeological site characterization is flawed, all subsequent work based upon it and the remedy selection will be flawed, putting the public health and the environment at risk. Such is the case at I EL. In the February 17, 1999 letter of William Munro, Director of the USEPA Region V Superfund Division (attached as Exhibit B and incorporated herein), the USEPA admitted that it does not know the transport and fate of the tons and gallons