233503 April 21,2005 via Federal Express Mr. Brad W. Bradley EPA Project Coordinator U.S. Environmental Protection Agency Region V, Mailcode SR-6J 77 W. Jackson Boulevard Chicago, IL 60604 W Re: In the Matter of Little Mississinewa Site CERCLA Docket No. V-W-'05-C-812 Dear Mr. Bradley: I. Introduction On or about April 4, 2005, the United States Environmental Protection Agency, Region V ("EPA"), issued an Administrative Order for Remedial Action (Docket No. V-W-'05-C-812) (the "Order" or "Unilateral Order") to Viacom Inc. ("Viacom") and United Technologies Corporation on behalf of Lear Corporation Automotive Systems ("UTC") (collectively, "Respondents"), directing those parties to implement the approved remedial design for the Little Mississinewa Site in Union , City, Indiana (the "Site"). The purposes of this letter are: (1) to advise EPA, pursuant to Section XXIV of the Order, of Respondents' intention to comply with the terms of the Order to the extent such compliance is required under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§9601, et seq., and its implementing regulations, namely the National Oil and Hazardous Substances Pollution Contingency Plan ("NCP"), 40 C.F.R. Part 300; and (2) to outline several objections and defenses that Respondents have to the Order, as issued. II. General Objections and Reservation of Rights As an initial matter, it should be noted that by setting forth any objections or defenses in this letter, or by submitting this letter at all, Respondents do not waive, and hereby specifically reserve their rights to raise additional or different objections and defenses to the Order at some later time, or to provide additional information and evidence in support of any position that they may respectively or collectively take in Mr. Brad W. Bradley U.S. Environmental Protection Agency April 21,2005 Page 2 the future. Without in any way limiting the generality of the foregoing reservation, Respondents specifically reserve and do not, by providing notice at this time, waive their respective and collective 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 their belief that all or portions of the Order are arbitrary and capricious, not supported by the Administrative Record or otherwise not in accordance with law. Moreover, neither this notice nor any information contained herein shall constitute an admission by Viacom or UTC with respect to the Site for any purpose, including third party claims or future enforcement proceedings, and Viacom and UTC incorporate by reference as if restated herein all prior objections and defenses raised in this matter with respect to the Remedial 'investigation/Feasibility Study ("RI/FS"), Record of Decision ("ROD") and Remedial Design ("RD"), and Respondents reserve all rights, claims, and defenses they may have, have 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. Respondents also specifically reserve any affirmative rights and claims they may have to seek reimbursement from EPA pursuant to Section 106(b) of CERCLA, 42 U.S.C. §9606(b), and Respondents' right to file claims against the Superfund under Section 112 of CERCLA, 42 U.S.C. §9612, and to pursue any other claims they may have under CERCLA, the United States Constitution, the Administrative Procedure Act, and the Federal Tort Claims Act, or any other law. Finally, by not specifically objecting to each finding or determination in the Order, neither Viacom nor UTC are admitting or conceding such findings or determinations, which Viacom and UTC specifically reserve the right to challenge in any future proceeding. III. Notice of Intent to Comply Subject to the reservations set forth above, and the objections, defenses, and other qualifications identified herein, Respondents hereby provide timely notification to EPA of their intention to comply with the terms of the subject Order to the extent required under CERCLA and the NCP.1 1 Respondents note that nothing in CERCLA requires a "notice of intent" to be submitted upon issuance of an Order, let alone that such notice be "unequivocal" as suggested in Paragraph 83 of the Order. Although Respondents have expressed their intention to comply with all legally applicable provisions of the Order, such compliance is not intended to, and does not waive the substantial defenses, objections, and clarifications Respondents set forth herein. Mr. Brad W. Bradley U.S. Environmental Protection Agency April 21,2005 Page 3 IV. Advance Notice of Project Coordinator Pursuant to Section XV of the Order, Respondents designate as their Project Coordinator: Bradley A. Barquest, R.G. Project Coordinator SECOR International Incorporated 4463 White Bear Parkway, Suite 106 White Bear Lake, MN 55110 Phone: 651-653-9112 Fax: 651-653-1751 E-mail: [email protected] V. Statement of Certain Objections and Defenses A. Introduction No provision of CERCLA requires a Section 106 Order Respondent to outline its "sufficient cause" defenses at the time an Order is issued. Paragraph 85 of the Order permits Respondents to provide comments to the Order, but then attempts to limit the scope of any "sufficient cause" defenses asserted by Respondents to "facts that exist on or prior to the Effective Date of this Order." Paragraph 85. As explained in greater detail in Section II above, by setting forth certain objections to the Order and "sufficient cause" defenses under Sections 106 and 107 of CERCLA herein, Respondents do not waive, and expressly reserve their respective rights to raise additional or different defenses to the Order at some later time, and hereby preserve all defenses and objections to the Order and to liability under CERCLA and other applicable laws, whether or not they are specifically set forth in this document, or whether they did or did not exist upon the Effective Date of this Order. B. EPA's Purported Jurisdictional Basis and Authority Respondents object to EPA's alleged Jurisdictional basis to issue the Order to Respondents. Respondents deny that there is an actual or threatened release of hazardous substances from the Site which may pose an imminent and substantial endangerment to public health, welfare, or the environment, or that the actions required by the Order are necessary to protect the public health or welfare or the environment, are in the public interest and are consistent with CERCLA. Respondents reserve their respective rights to challenge EPA's authority to issue the subject Order. Mr Brad \V. Bradle> U.S. Environmental Protection Agenc> April :i. 2005 Pase4 More fundamentally. Seenm Iu6 of CERCLA. 42 U.S.C. $9606 violates the Due Proce— Clause »f the F;:ih Amendment of the United States Constitution, both on its face and as administered b> EPA tits "pattern and practice"). The combination of the absence of pre-enfi-rcement review and massive penalties for non-compliance "imposes a classic and unconstitutional Hobson's choice." GE vs. EPA. 360 F3d 1SS .D.C. Or. 2004..: C. Several Requirements of the Order May be Arbitrary and Capricious. Not Supported by the Administrative Record and Not in Accordance with CERCLA and Other Laws In review :ng the scope of the .-ubiect Order. Respondents note several provisions that may be inconsistent u ith CERCLA and/'or its implementing regulations, or that may not be covered b\ CERCLA at all. thereby rendering all or portions of this Order unenforceable as to Viacom and LTC. The following points highlight Respondents" belief that the Order may. in certain contexts, be arbitrary, capricious, not supported by the Administrative Record and otherwise not in accord with CERCLA or other laws and. therefore, may be unenforceable. By raising the following examples, however. Respondents do not mean to imply that ihis is an exhaustive list of their objections and defenses :n this regard. 1. EPA's Determinations Are Not Accurate Many of EPA" s Determinations, set out in Section IV of the Order, are simply not accurate. To the extent these are EPA's determinations, and not facmal determinations agreed to in a Consent Order or determined by a neutral fact finder. Respondents merely object and note that nothing herein is to be construed as an admission of any fact or law by Respondents. That being said. Respondents specifically object to the statement that the PRPs' Baseline Risk Assessment did not conform to all applicable EPA guidance < Paragraph 20) because that statement is inaccurate and misleading. The same objection is raised with respect to the statements that there is a threat of a future release from either of Respondents' facilities (Paragraph 26L or that the Site poses an imminent and substantial endangerment (Paragraph 2~>. These statements are not true following the extensive work done to cut off all contaminated se'.>. ers and other sources that might continue to release PCBs to the Site and the extensive, multi-million dollar Removal Actions that were previously conducted b\ the Respondents under the direction of EPA and the Indiana Department of En-, ironmental Management. " Or. : errand. :hc District C _r. .-. :.-.e <J£ ;i^ r^er.'.: •• j-ried EP.Y> •• urn man judgment on GE's "pattern - r and practice" claim and alic -A-J j;;c.: .er. -. :ha; :!_:rr. : ;.• : r.'.;>jd. GE :<. 5:ep' .en L Johnson. No. •A--:if? • D C Dist. Ct . Marcr. ; . :•>."? Mr. Brad W. Bradley U.S. Environmental Protection Agency April 21,2005 Page 5 2. EPA's Review of Submissions The provisions of the Order that relate to EPA's review of submissions submitted by Respondents (e.g., Paragraph 32) are objectionable because they do not specify the standards which EPA will apply in reviewing and approving such submissions.