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CALLAND CLEMENTS ZOMNIR Linpsavr CALLAND CLEMENTS ZOMNIR LINPSAVr. HOVC'ARP May 14, 1999 VIA FEDERAL EXPRESS Frank Klanchar (3HW22) United States Environmental Protection Agency Region III 841 Chestnut Building Philadelphia, PA 19107-4431 RE: Welsh Road/Bartaan Landfill Superfund Site Administrative Order for Remedial Action (Docket No. III-99-012-DC) Dear Mr. Klanchar: I. Introduction On or about March 19, 1999, the United States Environmental Protection Agency ("EPA" or the "Agency") issued an Administrative Order for Remedial Action (Docket No. III-99-012-DC) (the "Order") to fourteen (14) respondents (collectively, the "Respondents"), including Ecolaire Incorporated ("Ecolaire"), directing those parties to, inter .alia, implement certain remedial activities at the Welsh Road Superfund Site located in Chester and Lancaster Counties, Pennsylvania (the "Site"). Pursuant to Section XXV of the Order, EPA directed each Respondent to provide notice to EPA's Remedial Project Manager stating whether the Respondents would comply with the terms of the Order. Although the Order required such notice to be provided no later than two (2) days after the effective date of the Order, through mutual agreement among the parties, this deadline was extended to May 17, 1999. The purpose of this letter is to communicate Ecolaire's current intentions with respect to the Order, and, subject to the reservations below, to set forth a description of the "sufficient cause" defenses that are known to Ecolaire at the time of this letter. See Sections 106 and 107 of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§9606;and 9607." """ Twu Gareviii\ Center ir-ih, P«nn*vK.mici 4i: «4o40C " Fax 41- ^4-6576' AROUI725 Frank Klanchar May 14, 1999 Page 2 II. General Objections And Reservation of Rights As an initial matter, Ecolaire notes that no provision of CERCLA requires a Section 106 Order respondent to outline its "sufficient cause" defenses at the time that the Order is issued. Ecolaire is providing the following information at this time as acpurtesy to the Agency, and in hopes that the Agency will reconsider its previous decision to name Ecolaire_as a Respondent to the subject Order. However, by providing this notice at this time, Ecolaire.does not waive, and specifically reserves its right to raise additional or different objections and defenses to this Order at some later time, and to provide additional information and evidence in support of any position that it may take in the future. Without in any way limiting the generality of the foregoing reservation. Ecolaire specifically reserves and does not, by providing this notice, waive its rights to assert any arguments. defenses, objections, positions or claims that would demonstrate sufficient cause for noncompliance with all or portions of the Order pursuant to Sections 106 and/or 107 of CERCLA, 42 U.S.C. §§9606 and/or 9607, or that would support its belief that all or portions of the Order are arbitrary and capricious orotherwise not in accordance with law. Moreover, neither this letter, nor any information contained herein, shall constitute an admission by Ecolaire with respect to the Site for any purpose, including third party claims or future enforcement proceedings, and Ecolaire reserves all rights, claims and defenses.that it may have, has had or will have-in the future regarding the matters addressed under the Order or related to the Site, whether under CERCLA or any other law.. Finally, by not specifically objecting to each finding or determination in the Order. Ecolaire is not admitting or conceding such findings or determinations, which Ecolaire specifically reserves the right to challenge in any future proceeding. III. History of Contacts with the Agency Ecolaire was first made aware of the above-captioned Site by letter dated June 20, 1991 from EPA. In that letter. Ecolaire was advised of its potential status as a responsible party at this Site, and was further requested to provide information in its possession regarding matters related to the Site. After conducting its own internal investigation, Ecolaire responded to this information request. indicating, inter alia, that Ecolaire's Allen-Sherman-Hoff Division had a contractual relationship with Mr. Barkman (or related entities) from approximately 1975 to 1985 for the collection and appropriate disposal of general "yard trash" from its Honey Brook, Pennsylvania facility. See Ecolaire's July 26, 1991 letter to EPA, attached hereto as Exhibit A. Ecolaire's investigation uncovered no information indicating that hazardous substances (or .any other materials for that matter) were disposed of at the Welsh Road Site. Following Ecolaire's response, nothing further was heard from EPA, leading Ecolaire to believe that the Agency had appropriately determined that Ecolaire was not a potentially responsible party ("PRP") at the Site. In September 1997, EPA issued notice letters pursuant to Section 122(e) of CERCLA to several parties, including Ecolaire. In its letter, EPA invited. Ecolaire, either alone or as a member of AR001726. l;rank Klanchar May 14. 1999 " " Page 3 - . _^_ ... -.,,-- ... - .,-,,_- a larger group of PRPs. to submit a "good faith proposal" to fund or perform certain remedial steps at the Site, and to reimburse EPA for certain past and future costs that allegedly have been incurred in connection with the Site. Shortly after receiving this Section. 122'(e) notice letter, Ecolaire contacted counsel for EPA in an effort to obtain any information the government had that lead it to believe that Ecolaire may be a PRP at the Site. See, Letter to C. Nadolski from L. Howard dated January 9. 1998. attached hereto as Exhibit B. After several delays. Ecolaire was provided with a one-page, two-paragraph summary of the "evidence" against if that apparently had been prepared h\ EPA's counsel. Because of the extremely vague and inconsistent nature of the information provided to it. Ecolaire subsequently responded to EPA's Section I22(e) notice letter by advising EPA that it was unable to submit a good faith proposal to EPA at that time. See Letter to F. Klanchar from L. Howard dated January 27. 1998. attached hereto as Exhibit C (without enclosure). In its letter. Ecolaire noted that, to the extent that more complete information was provided that would indicate some nexus to the Site in question, Ecolaire would be willing to engage in further discussions with the Agency and/or other PRPs about an appropriate site response. The day after Ecolaire responded to EPA's Section I22(e) notice letter, EPA provided the parties with copies of the various witness "interview summaries" that it believed created some nexus between the Respondents and the Welsh Road Landfill. See letter from C. Nadolski to P. Shaw dated January 28. 1998, attached hereto as Exhibit D (without enclosures). After reviewing this information. Ecolaire wrote to EPA on March 25, 1998 explaining its position that these unsubstantiated "interview summaries" provided no credible link between Ecolafre and the Site. and. if anything, provided support for Ecolaire's previous understanding of the facts -- namely, that general plant trash was picked up by Mr. Barkman's company and delivered to the local county landfill, and not the Welsh Road Site. See letter to C.. Nadoiski from L. Howard dated March 25, 1998. attached hereto as Exhibit E. In addition, Ecolaire noted that the two summaries that indicated some alleged connection between Ecolaire and the Site were replete with inconsistencies and credibility concerns. As a result, Ecolaire requested that EPA remove it from its list of PRPs for the Welsh Road Site. _.._ ... .._".: ...,:._. ."! In October 199S, EPA wrote to several parties, including Ecolaire, indicating its intention to renew negotiationsTo implement the selected remedy at the Site. By letter dated October 26_ 1998, Ecolaire reiterated its position that insufficient information existed to demonstrate a link between Ecolaire's Honey Brook facility and the Welsh Road Landfill. See Exhibit F (without enclosures). Having received no further information from EPA that would alter Ecolaire's position. Ecolaire reiterated its request that EPA remove it from its list of PRPs. Ecolaire once again indicated that, to the extent some credible information was provided that would indicate a nexus to the Site in" question, Ecolaire would be willing to engage in further discussions with EPA.and/or other PRPs about further steps at the Site. No response from EPA was forthcoming until the subject Order was unceremoniously issued by EPA on March 19, .1999. ROD 1727 Frank Klanchar ._..__. ............. ._ . ..._....._........ May 14. 1999 Page 4 .. - . ..;^-—..... ._.. -- --^^=-=^_^_-_——..- . Ecolaire notes that just two days ago (nearly two months after issuance of the Administrative Order), EPA has provided the Respondents with copies of additional "interview summaries" prepared by EPA. See Letter to J, O'Dea from C. Nadolski dated May 11, 1999, attached hereto as Exhibit G (without enclosures). Such a belated disclosure of these "summaries" is patently unfair to all the Respondents, who have worked diligently to cooperate with the government in dealing with this Site. Notwithstanding the inequities of the situation, however, in reviewing these new "interview summaries," it becomes even more clear than before that EPA does not have sufficient information to establish a link between Ecolaire and the Welsh Road Site. IV. Ecolaire Has Sufficient Cause to Not Comply With The Subject Order EPA has been given substantial power under Section 106 of CERCLA. Upon a showing of an "imminent and substantial endangerment." EPA can order persons responsible under CERCLA to take steps to abate such endangerment. 42 U.S.C. §9606(a). Further. EPA can collect fines up to $27.500 per day and/or treble damages from responsible parties who, "without sufficient cause," fail or refuse to. comply with the order.
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