National Ombudsman's Review of the Drake Chemical Superfund Site, Lock Haven, PA FROM: Robert J

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460

April 16,

OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE MEMORANDUM

SUBJECT: FINAL REPORT - National Ombudsman's Review of the Drake Chemical Superfund Site, Lock Haven, PA FROM: Robert j. tfartin, National Ombudsman TO: Timothy Fields, Jr., Acting Assistant Administrator Office of Solid Waste and Emergency Response W. Michael McCabe, Regional Administrator, Region III

Attached is the National Ombudsman's Final Report for the Drake Chemical super fund site in Lock Haven, PA. Consistent with the EPA Ombudsman Handbook, the ABA Guidelines for Ombudsman, and the United States Ombudsman Association, this public report contains findings and recommendations. . . . All of the recommendations made in this Final Report are for Regional Office deliberations and decisions.

Attachments cc: Michael Shapiro Cliff Rothenstein . James Seif , PADEP Clinton County Commissioners Lock Haven PA City Administrator Kenneth Kryszczun, Region III Ombudsman Kevin Matthews, OCLA Arrest Incinerator Remediation (AIR)

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TABLE br CONTENTS

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I. BACKGROUND AND AUTHORITY ...... 1 II. OMBUDSMAX PROCEEDINGS OX THB RECORD .... 3 III. OMBUDSMAN FINDINGS OF FACT ...... 4 IV. OMBUDSMAX ISSUES ADDRESSED ...... 9

V. CONTINUING JURISDICTION ...... 15 VI. SUMMARY Or RBCOMMBDHATIOMS ...... 16

VII. SUMMARY Or OPIHIOX ...... 17 VIII. APPENDICES ...... 20

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The Office of Ombudsman has undertaken several cases within the past five years in which significant decisions at Superfund sites have been reviewed and modified. In the Vertac case, the Office of Ombudsman responded to a petition from citizens affected by. operation of a Superfund incinerator. Working closely with EPA Region VI officials, an independent expert from EPA Region X reporting to the Office of Ombudsman and the EPA Criminal Investigation Division; significant recommendations were made to complete a new engineering assessment, to replace kiln seals and to implement new Standard Operating Procedures for the site. All the recommendations were adopted by EPA Region VI. A subsequent criminal referral was made by the Office of the Ombudsman and accepted by the EPA Inspector General. In the Isio. case, the Office of Ombudsman responded to a petition from citizens affected by the prospect of an operating Superfund incinerator in their community near Houston, Texas* EPA Administrator Carol M. Browner addressed the 'concerns about the remediation of the Brio Superfund site with Governor, Ann W. Richards of Texas in a letter dated March 4, 1994. The Administrator noted that "I have been made aware of the issues associated with the site, have discussed the issues with senior managers within the Agency, and believe we are making significant progress in addressing your concerns .... Regarding the Office of Ombudsman report discussed by Governor Richards, the Administrator remarked that "I am in full support of the review of the site that was undertaken by the Superfund Revitalization Office and the OSWER Ombudsman of the Environmental Protection Agency Headquarters . . . . I understand that EPA Region VI has already undertaken steps to implement some of the recommendations contained in the draft report .... We are planning to have the final report finished in the near future, and we will continue to work with EPA Region VI and the State to resolve all issues." . ' The Office of Ombudsman Final Report in the SEifl case made several recommendations in connection with, among other issues, site characterization, fugitive emissions and the air monitoring system. EPA agreed to implement all of the Ombudsman recommendations made in the Final Report. After issuance of the Final Report, 'the Office of Ombudsman helped facilitate a dialogue between the petitioning citizens, EPA Region VI officials and the responsible parties for the Brio sit». A Focused Feasibility Study was undertaken. The incineration remedy has not been pursued at the Brio site. Rather, a contaminant: remedy with a gas collection system is being implemented. In the Times Beach case, the Office of the Ombudsman responded to citizens petitioning about the effects of the incineration remedy selected by EPA at the Times Beach Superfund site in Missouri. Once again, the Office of Ombudsman, within the context of Interim and

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Final Reports, addressed such issues as risk assessment, fugitive emissions and the air monitoring system. Ultimately, the Office of Ombudsman had no discretion to recommend continued operation of the incineration remedy at Times Beach without another Dioxin Stack Test. Violations of EPA chain of custody legal requirements necessitated, in the view of the Office of the Ombudsman, a complete re-test of the Dioxin stack Test for the incineration unit, other recommendations were made to improve the air monitoring system. To address public confidence in the incineration remedy and for other reasons, EPA agreed to implement all of the recommendations made. in the Final Report. The EPA Environmental Response Team was. tasked to work with the petitioning citizens and the parties in a technical mediation role. Subsequent to release of the Office of Ombudsman Times Beach Report, the U.S. Attorney for the Eastern District of Missouri empaneled a criminal grand jury to address, among other issues, the issues raised in the report.

II. OMBUDSMAN PROCEEDINGS ON THE RECORD The Office of Ombudsman held several meetings and a public hearing on the record in Lock Haven, Pennsylvania, to receive significant information directly from all interested parties. The first meeting on the record was held with Mr. Kurt Davis and his legal counsel. See, Appendix E. Mr. Davis is a former Shift Supervisor for the Army Corps of Engineers at the Drake site. The second meeting on the record was held with the Lock Haven City Environmental Advisory Council. See, Appendix F. The Advisory Committee was established by the Lock Haven City Council to act as liaison between the city government and the Drake remediation team. The third meeting on the record was held on the Drake site with team officials, including EPA Region III, the Pennsylvania Department of Environmental Resources and the Army Corps of Engineers. See Appendix G. Following a detailed site tour by the National Ombudsman, the Drake remediation team commented on issues raised by Mr. Davis in connection with site operations. The fourth meeting on the record was with the National Ombudsman and the Clinton County Farm Bureau. See, Appendix H. The Farm Bureau was concerned about the liability associated with incineration at the Drake site and offered several comments with respect to testing for dioxin using moss bags. The final meeting on the record was between the National Ombudsman and the Clinton County Board of Commissioners. See,. Appendix I. Subsequent to these meetings on the record, the Office of Ombudsman held a final Public Hearing on the Record to afford an opportunity to any person to comment on the Ombudsman process and the Drake site.1 See, Appendix J. The Office of Ombudsman also received several written comments from interested parties following issuance of the Draft Final Report last year. Those comments are included within this Final Report for public review. See, Appendix K.

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III. OMBUDSMAN FINDINGS OF FACT A. The Army Corps of Engineers found on September 21, 19 91 "two extremes" .... one is the ROD in which contains information about the contamination initially found on the site .... The other extreme is the incineration treatability study which indicates that there is virtually no contamination. Of 483 analysis for organic contamination, 481 were non-detect." See, Army Corps of Engineers Review Comments for the Drake Chemical Site. See, Appendix L. ,J&. The responsible parties for the Drake site in 1993 . petitioned EPA Region III to address this disparity: "Should EPA proceed with incineration as the remedy for the Drake site, three results seem certain ... First, a great deal of the public's money will be wasted. There are much less expensive, equally satisfactory solutions available for dealing with the low levels of contamination found at the Drake site. Second, EPA will justifiably be subjected to charges that its decision was arbitrary and capricious. In the U.S. Army Corps of Engineers Bid Specifications for construction and operation of an incinerator at the Drake site, the Government has acknowledged that the sampling and analytical results from the Incineration Treatability Study are representative of site conditions and the results from the Remedial Investigation are not .... Bidders have been instructed to rely on the Treatability Study, results in designing the incineration systems they include in their proposals. Yet, based on the levels of contamination revealed in the Incineration Treatability Study, no rational, newly conducted Feasibility Study or Record of Decision would conclude that incineration is an appropriate remedy." See, April 7, 1993 Petition to Thomas C. Voltaggio from Morgan, Lewis, and Bockius. See, Appendix M. C. The bid materials provided to bidders in the request for proposals concerning the incineration remedy included the data from the Treatability Study. This information was given to the bidders to provide them with information concerning the conditions to be faced at the site when mixing large quantities of soils, sludge, and sediments to be fed into the incinerator. The Request for Proposal provided that "it is believed that the contamination levels found in the Treatability Study are more representative of what, the TDF will experience during the remediation and the contractor shall base his system design on the information from the Treatabilitv Study." [Emphasis supplied]. See, Affidavit of Roy Schrock and Memorandum to the Dpake?Tile from Roy Schrock. See, Appendix N. D. Phenols were disposed of at the Drake site by the Kilsdonk Chemical Company (Drake's predecessor) and phenols were disposed of by the AC&C Company at the AC&C site. Hazardous substances have migrated through the groundwater from the AC&C site to the Drake site. See, Complaint of United States of America vs American Color

AR3I956U - 5 — and Chfemical Corporation et.al., September 28, 1992, Appendix o". Phenols may trigger the RCRA listing test for dioxin at the Drake site, if so triggered, a higher destruction removal efficiency [99.9999%] may be required for the Drake incineration unit. • E. & Consent Decree was entered into on February 14, 1996, between the responsible parties AC&C Chemical inc., and One East Beazer Inc. and the U.S. Environmental Protection Agency and the Pennsylvania Department of Environmental Resources. The Consent Decree provided that the responsible parties would perform the groundwater remediation for the Drake site and that EPA and PADER would perform the Source Control, or incineration portion of the remedy for the Drake site. The responsible parties initially paid approximately $4 million for the groundwater treatment remedy. Pfister Corporation has made no financial contribution. The cost of incineration as the source control remedy is approaching $140 million. Approximately $126 million will be paid by EPA and $14 million by PADER. F. Based on site specific knowledge and a review of the ROD, incineration contract solicitation and incineration test, the owner of the CDS Laboratory in Loganton, Pennsylvania, on January 26, 1995, found that many of the compounds used by and produced at Drake are not detectable using standard EPA protocols with GC/MS analysis for organics. Products that would not be detected include Bronners Acid, Chrome Black T, Isophthalic Acids and their derivatives, 1,2, 4 Acid and Acid Chlorides. A _gjj|dinjf waa_al3O made _thafcjtha 9A is not homogenous tfi ires^ ~ G. B-Naphthylamine (BNA) is a primary contaminant at the Drake site and poses a significant risk. It is not reported to occur naturally in the environment. BNA was used in rubber manufacturing and as a chemical intermediate for dyea and rubber antioxidants. Its chemical and physical properties include colorless crystals which darken in air to a reddish and purple color. It has a faint aromatic odor with an odor threshold of approximately 0.25 ppm. BNA is a known human bladder carcinogen and has been regulated by the Occupational Safety and Health Administration. There is no permissible exposure level or air concentration for BNA since for most known human carcinogens it is assumed that any increase in exposure will increase cancer risk. H^ ifotwithstanding the fact that BNA is primary contaminant at che Drake Chemical site and that BNA poses a significant risk, there does not appear to be any requirement in the PADEP Air Equivalency Permit to test for BNA in stack emissions or perimeter air samplings The only hazardous materials required to be tested for in the perimeter air monitoring network were (1) toluene (9.146 ppm - action level), (2) chlorobenzene (7.777 ppm - action level), and (3) tetrachloroethene (2.511 ppm - action level). See, Appendix P.

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I. A recent publication by the North American Association of Central Cancer Registries included cancer death rates for the Commonwealth of Pennsylvania for the years 1989*1993. The age* adjusted cancer death rates in Pennsylvania males and females were 226.8 and 148.8 per 100,000 respectively during this recent time period. The corresponding US rates were 219.1 and 141.7 per 100,000; this indicates that Pennsylvania men and women are dying of cancer at rates 4-5% higher than in the U.S. as a whole. Similarly, bladder cancer death rates in Pennsylvania males and females were 6.3 and 1.3 per 100,000, respectively during this time period. U.S. rates were 5.7 and 1.7 per 100,000, indicating that Pennsylvania men anql women are dying of this specific cancer at a higher rate than in the U.S. as a whole; the rate for Pennsylvania males is 11% higher than the U.S. bladder cancer death rate. J* The Drake incinerator trial burns were intended to demonstrate incinerator performance and establish permitted operating conditions. The Drake incinerator risk burns were carried out to provide data that could be used to predict the impacts on public health and the environment of the incinerator, assuming that it operates according to the conditions established during the trial burns. During the risk burns, the incinerator achieved average destruction efficiencies with the two contaminants identified as being of greatest concern as follows: Fenac, 65.4 to 83.7% and BNA 94.3%. K- The Agency for Toxic Substances and Disease Registry has performed a series of health consultations in connection with the use of incineration at the Drake site. ATSDR found that •' M[l]aboratory control samples are producing low recoveries for B-Naphthylamine (4-aminobiphenyl) and Fenac (dichlorophenylacetic acid) .... concentrations may be biased low. Thorough evaluation of laboratory control data, as indicated in monthly sampling reports, is inhibited by the reporting of recoveries as averages rather than reporting a recovery value for each sample." L. ATSDR in its Draft Final Health consultation has recommended that improved detection and data recovery for BNA be achieved at the Drake site. ATSDR has noted that with the exception of BNA and Fenac, the analytical data for contaminants at the Drake site is of general high quality. ATSDR observed that air sampling at the Drake- site for BNA; however, is likely not acceptable for the evaluation of public health impacts. ATSDR recommended the application of new models to the Drake air monitoring system. M. Mr. Davis in testimony on the record stated that the Drake air monitoring system never detected BNA during his tenure and that the air monitoring contractor (MRI) knew before bidding the Drake contract that EPA TO-13 method for detecting BNA could not be achieved. Notwithstanding the failure of the air monitoring system

AR3I9566 to detect BNA in this time frame, Mr. Davis reported a very pungent dirt odor and a sickening sweet aromatic after his respirator unit experienced break-through. He reported that this could be smelled on site during a normal days walk around and normal operations. The Corps of Engineers has reported other respirator breakthroughs; however, not Mr. Davis's incident. Mr. Crystall of EPA has reported a hit for BNA on a detection patch under a Drake site workers glove. Citizens have reported similar odors off-site in the community. N. Mr. Davis continually informed Drake site management of his observations of fugitive emissions from the incineration .process in the form of wet dust. Citizens observed fugitive emissions from the site which corroborated Mr. Davis' findings and expanded into new findings. O. A wet dust collection system for the Drake incineration unit was included within the engineering drawings but was not -required by the Corps of Engineers nor was the system implemented ' by OHM Inc. The wet dust collection system would have helped address the problem of fugitive emissions. P. The problem of fugitive emissions from wet dust and particulate matter in steam from the incineration unit was addressed in a Steam Mitigation Meeting on November 26, 1996. EPA made clear to OHM, among other goals, that steam should be eliminated. Although several options were considered to address fugitive emissions as steam, no option appeared to have been selected because of inter- ference with the Risk Burn schedule and because "[m]edifications to the TDF would require too much time and would be expensive." Q. Mr. Davis reported on December 19, 1996, that the $100 Drake site safety slogan was "Steam is clean". Mr. Davis continued to await the course of action selected by the Steam Mitigation Team* MRI Inc. expressed to Mr. Davis that they could not sample the steam for contamination using Draker tubes. OHM Inc., suggested using a firm other than MRI Inc., to address the steam problem. R. On March 4 and March 5, 1998, shortly after commencing a full production burn at the Drake incineration unit; the Pennsylvania Department of Environmental Protection issued two Notices of violation (NOV's) to OHM for fugitive emissions violations for the two days referenced previously. See, Appendix Q. The Army Corps of Engineers Daily Site Reports for March 4 and March 5, 1998, confirm problems with fugitive emissions on'those days and note that the fugitive emissions left the site boundary. The Daily Perimeter Air- Monitoring Reports; however, identify no problems from real-time air monitoring at the project fenceline or at the four off-site stations.

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s« JfflfcPrecautionary Principle finds that threats of harm d©ma»4rgrecauti"bnary action, even wnen proof positive is not yet available. This is consistent with a recent National Academy of Sciences report on risk assessment and characterization. The NRC called on risk assessment processes to incorporate public participation as a component equally as significant as technical data-in the overall risk assessment process. !F^ EPA invalidated approximately six months of Lock Haven weather data out of 12 months of available data. The ATSDR has recommended that EPA have approximately five years of weather data available for the Drake incineration project and that additional weather models be used to apply to the Drake project. U. One of the independent EPA peer reviewers has made findings available to the Office of the Ombudsman that the Drake risk assessment presented no data describing the present air quality in the Lock Haven basin, nor any estimates whether the emission increments from the Drake incinerator would affect exceedances. Similarly, no data was made available on the present health quality of the basin, nor whether increments of health stress from the Drake incinerator would axceed reasonable standards of community health. V. The independent EPA peer reviewer also found that the Drake risk assessment omitted what are probably the biggest health related emission sources [secondary formation of PM2.5 from the stack and organic vapors from the disturbed soil] and the most apparent health effect [asthma and congestive pulmonary disease]. A finding was also made that the uncertainties in the central cancer-risk estimator r3E-o7] likely exceed 10X, and plausibly approach or exceed 100X. W. The independent EPA peer reviewer also found that the Drake risk assessment ignored an explicit directive to evaluate uncertainties. Henry Habicht, Deputy Administrator of EPA cited in Appendix B of "Science and Judgement in Risk Assessment", National Academy of Sciences, 1994. IBSN 0-309-04984-X. X. The independent EPA peer reviewer found that the uncertainties noted above were so large as to vitiate the reasonable use of deposition pathway, cancer driven risk assessments in a GO or NO GO decision by EPA management. Therefore, the independent EPA peer reviewer judged that the Drake risk assessment cannot assist wise decisions regarding production burns at- the Drake site toxic waste incinerator. Y* The independent EPA peer reviewer made clear that in pre-meeting comments, during the Peer ReView workshop, and in post meeting correspondence all of the above points were stressed [omission of volatile organics from the disturbed soils, childhood asthma and adult congestive pulmonary disease and that all risk

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•: *.: ' * .•* assessments should be conducted "at the margin" rather than from "base zero" with respect to both air quality and health] and that "[i]n these reservations^ I was not alone among the reviewers and I *recall no dissent from them." Z. The independent EPA peer reviewer, noting the grounds recited above, dissented from the summary of the Chairman in the Draft Final Report; that the risk assessment study was "commendable and credible" and was "well conceived and executed." The independent EPA peer reviewer commented that this was not an executive summary in the sense of a consensus among peers and that "had I been asked whether it should be accepted as meeting minimum standards of quality and completeness, I should have recommended "No". The Chairman of the Peer Review did find, however, that "[t]he reviewers concurred .... that there are a number of areas of concern that are worth addressing in order to better quantify the potential risks that may be imposed by the operation of the incinerator at the Drake Chemical Superfund site.

IV. OMBUDSMAN ISSUES ADDRESSED A. SITE CHARACTERIZATION The issue of how the Drake site was characterized and how contaminants of concern were identified was previously addressed in the Interim Report and the Draft Final Report. A threshold issue are comments of an engineering review performed by the Army Corps of Engineers in 1991* See, Finding of Fact A. The Corps also observed that "it appears that a smart contractor could remediate this site without turning on his incinerator. Before the government spends $123,000,000 it would be prudent to reevaluate this situation. It would be worth the minimal costs for testing to determine if a better or more limited method of remediation would work for this site. This could save a $123,000,000 embarrassment to the government." See, Engineering Review Comments at pg. 2. The Administrative Record provided to the Office of Ombudsman does not show that further testing was ever done to address the disparities between the RIFS data and the Treatability Study data (which the RFP required the contractor to rely upon in designing the incincerator system at Drake). The original EPA site manager has confirmed that no such testing was ever done. The Office of Ombudsman asked EPA Region III to certify to the Drake Administrative Record prior to completing this Final Report. The Region declined. The Office of General Counsel clari- fied the grounds for the refusal in a March 3, 1998, Memorandum to the Office of Ombudsman. OGC commented that "EPA normally certifies a record only for the use of courts and litigants ....

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In order to certify an administrative record, the Region would have to determine precisely what action is being challenged in litigation, and identify and certify the corresponding materials from the administrative record file. I did not mean to suggest, and I do not believe, that such a certification would be needed in order for you to review activities at the Drake site." The Ombudsman process is not a judicial proceeding and the parties are not litigants. Without a certified record, however, the Office of Ombudsman cannot ascertain whether particular issues have gone to closure through documents that are part of an official record. The Army Corps of Engineers noted in their engineering comments "What is a contractor supposed to believe when he is pre- paring his proposal?" See, Army Corps of Engineers Review Comments at pg. 5. In addition to the fundamental data inconsistencies noted above, the petitioners have also questioned whether all contaminants of concern have been identified at the Drake site. See, the Interim and Draft Final Reports for a fuller discussion. For example, the former plant manager of the Drake plant in sworn testimony identified silvex as a chemical compound that was an unwanted waste product at the Drake site. See, Draft Final Report, Appendix O. Silvex in an unused formulation, in and of itself, may trigger a RCRA dioxin listing. Phenols are also present at the Drake Chemical site. A RCRA listing for silvex at the Drake site would require a higher Destruction Removal Efficiency (ORE) for the Drake incinerator (99.9999%). See, Draft Final Report. See also, Vavra Memorandum for explanation of dioxin and RCRA listing tests. Regarding potential dioxin contamination at the Drake site, a review of the "Drake Chemical Site Dioxin Analysis File Search and Summary Report" (hereinafter the "Weston Report") shows references to no reports for dioxin reanalysis in the site files that should have been analyzed again because the detection limits were greater than Ippb; another set of dioxin samples was questionable because the'surrogate spikes did not meet criteria; and another set of dioxin soil samples "did not indicate a station location on the accompanying chain of custody; therefore, the sample locations cannot be traced to any existing site location." Finally, the Weston report notes that a "Quality Control memorandum did not accompany the data." It must: also be noted that a former longstanding employee of both the Kilsdonk and Drake Chemical firms gave a privileged communication to the National Ombudsman in which it was alleged that "Agent Orange" and related compounds were made by Kilsdonk for the government. It does not appear on the face of the Vavra Memorandum that this period of time is covered in the records analysis. The issue of dioxin contamination at the Drake Chemical site is not new. See, Interim and Draft Final Reports.

AR3I9570 - 11 - s ^n -^I •>- EPA Region III declined to test the waste feed to the incinerator for dioxin as recommended in the Interim Report and to issue a Fact Sheet regarding unused formulations of compounds that would trigger a RCRA dioxin listing as recommended in the Draft Final Report. *

RECOMMENDATION The EPA Environmental Response Team, consistent with the National Contingency Plan and its role as a technical mediator, should address the fundamental inconsistencies in site characterization data alleged by the Drake responsible parties and observed by the Army Corps of Engineers. The ERT should also, in view of previous quality control problems for dioxin sampling and issues which have not been resolved concerning unused formulations of Silvex, conduct another round of sampling for dioxin, PCP and silvex in the waste stockpiles to be incinerated. An EPA Fact Sheet should then be prepared which explains how the Drake site was characterized and explains the results of the sampling and analysis. B. BNA DETECTION AND AIR MONITORING Petitioners have long been concerned about the failure to achieve the original detection limit for BNA at the Drake site and corresponding non-detects for BNA in the perimeter air monitoring system at the Drake site. See, Interim Report at pg. 9. The Drake remediation team, in a safety meeting held on January 28, 1997, noted that different sampling methods for BNA had been used and that "BNA" has never been detected with any of our monitors." See, Shift Report January 29, 1997. The Office of Ombudsman noted the efforts of the Drake remediation team to achieve a NIOSH detection limit for BNA that was lower than the Pennsylvania detection limit for BNA, but observed that many non-detects for BNA resulted during the trial burn period because of the detection limit problem. See, Interim Report. The ATSDR also noted the problems with detection limits and recoveries for BNA contaminants. See, Findings of Fact I and • K. The air sampling for BNA, therefore, is likely not acceptable for the evaluation of public health impacts. This is absolutely critical in view of the potent carcinogenity of BNA and its widespread presence as a site contaminant. There may be direct evidence that BNA contamination is present in the air, notwithstanding the failure to show any positive detections in the air monitoring system. After Mr. Davis reported the breakthrough of his respiration unit, he testified that the presence of aromatic pungent smells from the soils and the ash was "second nature out there. This is why I was raging." See, Appendix E at pg. 35. The Army Corps of

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Engineers reported to the Office of Ombudsman that breakthroughs of other worker respiration units had occurred on the .site. OHM has reviewed these-incidents and procedures and found "no deficiencies". See, Daily Report of March 11,. 1998. When Mr. Davis was informed that there were no detections for BNA in the air monitoring system, he commented "I was raging. I was raging." See, Appendix E at pg. 44. Citizens have also reported, in sworn affidavits, that they have smelled pungent aromatic odors from the Drake site much like Mr. Davis encountered. Other citizens testified to such odors within the context of the Ombudsman public hearing. See, Appendix J. The Drake Team has offered an explanation that the odor is from a skunk living in a woodpile in the exclusion zone on the site. See, Daily Report March 13, 1998. Mr. Crystall of EPA stated for the record that there was a hit for BNA on a detection patch under a site worker's protective glove. See, Appendix G at pg. 33. Based upon the direct evidence of Mr. Davis's experience, the fact of other respirator breakthroughs, citizen observations of pungent aromatic odors from the Drake site and the BNA hit on the worker detection patch, therefore, there may be BNA contamination in the air on and around the Drake site (or some other chemical is off-gasing from site soils) and the air monitoring system may not be detecting the problem. While ATSDR feels that "exposure to 0.02 ug/m3 BNA for 16 months would not represent a carcinogenic hazard to residents living within a mile of the Drake site ... a detection limit of 0.001 ug/m3 for BNA would offer a larger margin of safety,." [1 part per billion] MRI Inc., the air monitoring contractor at the Drake site, appears to have achieved this level of detection at the State of Texas Superfund site in Houston, Texas for contaminants euch as BNA at a network of fenceline monitors for real-time monitoring of volatile organics and PM-IO. The system was able to detect part-per-billion concentrations of eight targeted VOC's on a real-time basis at the site." See, MRI HAP Monitoring at Superfund Sites, Appendix R.

RECOMMENDATION Consistent with the original recommendation in the Interim Report and the recommendation of the ATSDR, the EPA Environmental Response Team should work with the Drake Site Remediation Team to explore options to improve the detection of BNA, in particular, and the operation of the perimeter air monitoring system, in general. An EPA Fact Sheet should be issued which explains the improvements to BNA detection and to the perimeter, air monitoring system following the addition of sampling protocols and action levels to ensure that other volatile organic chemicals are not exceeding levels of public health concern.

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C. FUGITIVE EMISSIONS Mr. Davis consistently reported fugitive emissions and observed that "my common sense judgement was there's a good chance that there's contamination coming off in this steam and being given a medium to be carried away with the dust." See, Appendix E at pg. 32. Mr. Davis also indicated that "I was called on that by my supervisors .... And I was told that its not to be - its not a fugitive emission." See, Appendix E at pg. 31. Notwithstanding - these instructions, the Drake team noted on November 6, 1996, that "there is still some fugitive emissions occurring at the joint seal between the kiln breach outlet and the cyclone inlet" (see Daily Report) and on November 11, 1996, that the "EPA representative on-site today has drafted a comment .... it has to do with whether the steam coming off of the dry ash dropping onto the wet ash drag conveyor are producing fugitive emissions." See, Daily Report. Mr. Davis asked why the wet dust collection system which appeared on the engineering and contract drawings was not in place. This system would have addressed residual organics destruction and assured further treatment in the air pollution train. Mr. Davis contends he was never told why the system was not implemented. See, Appendix E at pg. 61. Mr. Davis contends he was informed that other "steam mitigation" solutions were not implemented prior to the trial and risk burns at the Drake site. He speculated that the wet dust collection system was not implemented because "potential contaminants would be reintroduced through the pollution train and then go up the stack. These would not have been modeled for in the risk assessment .... If this safety improvement were done now, emissions would be different than allowed for in the Trial Burn and the Permit Equivalency." See, Appendix E at pg. 81. Responding to a question about the importance of the wet dust collection system for containment of fugitive emissions, Mr. Davis remarked that "In my assessment, the consequences would be potential hazardous exposures, from fugitive emissions and the inability to implement them back into the system because it compromises the integrity of the Trial Burn, which is really important, isn't it?" See, Appendix E at pg. 83. The National Ombudsman addressed this issue .directly with the Drake site remediation team. The following colloquy ensued: "Mr. Modricker: There were indications .... clouds on the drawings to show the ability to put a wet dust collection system. We never required it. OHM never told us they planned on using it .... Mr. Crvstall; The site team didn't feel we needed it. And one of the things we're looking at now is if it becomes a persistent problem that we see, we're going to put it in. Mr Martin; So it's still possible to engineer that? Mr. Crvstall; Yes. Mr. Oaden; But as Greg said, we haven't felt the need to do it. Our state permit says if we have fugitive emissions at that location, that

AR3I9573 - 14 - we're supposed to take action. It doesn't sav that we're supposed to take action to eliminate." See, Appendix G at pg. 43. [Note; The State Equivalency permit requires "If fugitive emissions are visible .... additional.control measures must be implemented to eliminate fugitive emissions [Emphasis supplied]. See, Appendix P. The discussion continued: "Mr. Martin; However, if dust were visible within the steaa plume, would that be considered a fugitive emission? Mr. Qqdens Yes and we would take steps then, to control that dust, knock it down with more spray or whatever. The Cadillac version, which is the thing that's kind of been-laid out, designed, but not built, is this steam scrubber which would basically scrub the steam of any particulate that might be in it, collect it and handle that as a separate entity. Mr. Martin; Does the Air Equivalency Permit incorporate by reference, then, the state definition of fugitive emissions? Mr. Welch; Yes. And we've been here - we've had some of the same staff here for going on 10 years, and we have not noted a single'fugitive emission going on to date. We've asked them to make modification to the system that they've done. These other engineering abilities are out there .... and the State's position is to have them available. But, I mean, even though we're only putting 10% towards it at this point, why spend 10% to straighten up a perception problem? If there's a violation, that's something different." See, Appendix G at pg. 46. On the following two days, FADE? issued two Notices of Violation for fugitive emissions to OHM. See, Finding of Fact P. See also, Appendix P. Citizens have also observed fugitive emissions' on multiple occasions from the Drake site and have smelled noxious odors in different locations in the community. See, Appendix J. The Office of Ombudsman has previously addressed the issue of fugitive emissions from the Drake site. See, Interim and Draft Final Reports. The issue of off-gasing of chemicals from site soils and ash piles also concerned the independent EPA peer reviewer.

RECOMMENDATION Consistent with the position of the PADEP, the Army Corps of Engineers should put in place the wet dust collection system envisioned in the original engineering plans for the Drake incinerator to address the fugitive emissions problem which is affecting the community. The EPA Environmental Response Team should also work with the Drake Site Remediation Team to achieve process improvements to assure that fugitive emissions do not continue from the Drake site.

AR31957I* - 15 -

D. RISK ASSESSMENT ' ""' % The Office of Ombudsman has previously addressed risk assessment issues in the Interim and Draft Final Reports. The Acting Assistant Administrator of OSWER decided last year "on a parallel track with your Ombudsman efforts at this site" to ask "Region III to work with me to facilitate a peer review of the project plan for the final risk assessment over the next 60-90 days." See, Draft Final Report. Appendix E. A Draft Final Report has been circulated among the Independent Peer Reviewers. Many substantive concerns have arisen in connection with the peer review process and with the risk assessment for the Drake site. The issue of weather data has a significant bearing on the risk assessment as well. See, Interim and Draft Final Reports. See also, Finding of Fact R. An air modeling expert with the Pennsylvania State University commented that "to apply data from a separated location (Williamsport Airport) in a region which is world renown for its complex topography and associated micrometeor- logical conditions, is, in my opinion, tantamount to walking on thin ice. Apparently, the planned measurements were invalidated because of instrument failure and improper tower placement. If those site specific measurements were "required" then inconvenient as it may be, decisions regarding issues such as siting, burn strategies, etc., which were understood to be dependent upon satisfactory execution of those measurements, should be deferred until a satisfactory set of measurements is completed. If a baker discovers midbatch that he/she is short of yeast, baking soda is not an adequate substitute." See, Citizens Petition at pg* 9.

RECOMMENDATION EPA should require all of the Peer Reviewers of the Drake Site Risk Assessment to address the deficiencies noted in Findings of Fact S, .T, U, V, and W, (Relating to no data on the present air and health quality in the Lock Haven basin, emission of organic vapors from disturbed soils, failure to address the Habicht directive, etc.) The EPA Environmental Response Team should atlso assist the Drake Site Remediation Team in gathering 5 years of weather data and in exploring other models for applying such data, consistent with the recommendation of the ATSDR.

V. CONTINUING JURISDICTION The Office of Ombudsman consistent with its procedures for investigations asserts continuing jurisdiction over the Drake case. This Final Report focused only upon a narrow range of issues which were critical to a dispositive review of the Drake site. Many other issues were not addressed in the context of this Final Report

AR3I9575 - 16 -

(evacuation plans and alternative technologies etc.) but will be addressed subsequent to this report. New issues will also be examined, such as the effect of other RCRA sources on the Drake site cleanup and their compounded effect, on the community (AC&C site, etc.) Pursuant to the request of the Lock Haven City Environmental Advisory Committee, ample time will be provided to the public to review and comment upon any issue which has not been addressed in this Final Report or any new issue that will be addressed by the Office of the Ombudsman. Because of the existance of criminal allegations based on credible sources, an Office of the Ombudsman referral will be made to the EPA Office of the Inspector General and the EPA Criminal Investigation Division upon submission of this Final Report. Consistent with prior Ombudsman cases, the Office of Ombudsman will consult with those Offices regarding the disposition of the matters referred as part of its continuing jurisdiction in this case.

VI. SUMMARY OF RECOMMENDATIONS The EPA Environmental Response Team, consistent with the National Contingency Plan and its role as a technical mediator, should address the fundamental inconsistencies in site characterization data alleged by the Drake responsible parties and observed by the Army Corps of Engineers. The ERT should also, in view of previous quality control problems for dioxin sampling and issues which have not been resolved concerning unused formulations of Silvex, conduct another round of sampling for dioxin, PCF and silvex in the waste stockpiles to be incinerated. An EPA Fact Sheet should then be prepared which explains how the Drake site was characterized and explains the results of the sampling and analysis. Consistent with the original recommendation in the Interim Report and the recommendation of the ATSDR, the EPA Environmental Response Team should work with the Drake Site Remediation Team to explore options to improve the detection of BNA, in particular, and the operation of the perimeter air monitoring system, in general- An EPA Fact Sheet should be issued which explains the improvements to BNA detection and to the perimeter air monitoring system following the addition of sampling protocols and action levels to ensure that other volatile oraanic chemicals are not exceeding levels of public health concern.' Consistent with the position of the PADEP, the Army Corps of Engineers should put in place the wet dust collection system envisioned in the original engineering plans for the Drake incinerator to address the fugitive emissions problem which is affecting the community. The EPA Environmental Response Team should also work with the Drake Site Remediation Team to achieve process improvements to assure that fugitive emissions do not continue from the Drake s-ite.

!\R3 19576 - 17 -

EPA should require all of the Peer Reviewers of the Drake site Risk Assessment to address the deficiencies noted in Findings of Fact S, T, U, V, and W. (Relating to no data on the present air and health quality in the Lock Haven basin, emission of organic vapors from disturbed soils, failure to address the Habicht directive, etc.) The EPA Environmental Response Team should algo aa^jsfr t-ft* Drake Site Remediation Team in gathering l5~"yia£5-of weather data" and in exploring other models for applying such data, consistent with the recommendation of the ATSDR.

"VII. SUMMARY OF OPINION The Drake case is properly before the Office of Ombudsman for review of site-specific technical issues, consistent with prior Ombudsman cases, such as Vertac. Brio, and Times Beach. In those cases, as here, the Office of Ombudsman made recommendations to influence the critical path in the site cleanup decision-making process, at the urging of citizen petitioners. The issues weighed in this Final Report go to the heart of the implementation of the remedy at the Drake Chemical site. This Final Report neither affirms nor rejects the incineration remedy at Drake. Evidence which has come to light in the course of this review, however, begs the wisdom of going forward without appropriate precaution. A threshold issue is the significant inconsistencies,in how the Drake Chemical site was characterized for cleanup. The data from the remedial investigation showed widespread contamination (BNA, Fenac, etc.). The data from the Treatability Study for incineration showed virtually no contamination. The early recommendation of the Army Corps of Engineers to do more testing of the Drake Chemical site to address this inconsistency was never implemented. Parties who bid to incinerate Drake Chemical site soils were instructed to rely upon the Treatability Study data in designing their incineration system. The practical outcome is an incineration system which may not be capable of addressing the contamination at the Drake Chemical site. Moreover, particular contaminants that could trigger the RCRA dioxin listing test for requiring a destruction removal efficiency of 99.9999% (as opposed to the current 99.99%) are likely present at the Drake Chemical site. Phenols are a Drake Chemical site contaminant (see, U.S. v. AC&C etc.) which offers a reasonable explanation as to why several high detections of PCP were found in site soils during the remedial investigation. Other contaminants that would require a higher destruction removal efficiency may have migrated from the AC&C site. According to sworn testimony from the former plant manager, silvex in an unused formulation may be present

AR3I9577 - 18 - at the Drake Chemical site. A privileged communication from a senior former worker at the Kilsdonk and Drake companies alleges that Agent Orange 'was produced at the site by Kilsdonk. ' No records exist for the period of Kilsdonk operation at the site. This period of plant operations does not appear to be addressed by the Vavra memorandum, which concludes there are no RCRA listed dioxins at the Drake Chemical site. The witness who made the privileged communication alleged that Kilsdonk was paid in cash to produce the Agent Orange. The diagnosis of the site for contamination is a fundamental issue. The original remedial investigation showed widespread high levels of contamination. The incineration remedy was selected based upon this analysis. The contract to implement the thermal destruction remedy, however, was based upon the almost non-existent levels of contamination found in the incineration Treatability study. This disparity is significant and may offer logical explanations for operational problems which have been encountered at the site. For example, sampling of the feed to the incinerator demonstrates levels of BNA contamination as high as 8900 and 2040 parts per billion with corresponding removal efficiencies (after being burned in the incinerator) of 3300 and 1730 parts per billion, or, 62.92% and 15.20%, respectively. See, Sampling Results. Appendix E. The Drake incinerator may not have been designed and may not now be able to consistently and efficiently destroy high levels of BNA contamination and other kinds of contamination in site soils within EPA regulatory parameters.

PRINCIPAL RECOMMENDATION Based upon the foregoing evidence, the principal recommendation of this Final Report is that the incineration, remedy should not go forward until the testing recommended by the Army Corps of Engineers 7 years ago, but never done, has been accomplished. This issue was raised by the financially solvent responsible parties prior to " construction of the incinerator. Subsequently, EPA chose not to seek contribution from those parties for the $140 million incineration remedy. See also, Interim Report and -tills Final Following such testing, the EPA" Environmental Response Team shall recommend appropriate changes and engineering modifications to address the issues noted in this Final Report and other problems which may arise after resampling.

AR3I9578 - 19 -

• *f the results of such testing confirm the safety and efficiency of the.incineration remedy at Drake, then several other issues must be addressed prior to implementation of the remedy. First, methods of detection and recoveries for BNA contamination in the air monitor- irfg network must be improved, consistent with the recommendations of the ATSDR. Second, the wet dust collection system engineered in the design of the Drake incinerator but never constructed for reasons of time and expense, should be put in place to address the well- documented fugitive emissions problems from the incineration process. The EPA Environmental Response Team should address any collateral issue regarding the potential need to change the Trial and Risk Burn parameters for the incinerator due to the installation of the wet dust collection system. Third, all of the Peer Reviewers should be tasked to address the risk assessment issues identified in this Final Report (present air quality and health quality of the Lock Haven basin, level of asthma and congestive pulmonary disease. Secondly, formation of pm 2.5 from the stack, off-gasing of chemicals from site stockpiles, etc.) All of the Peer Reviewers should also take into account those areas of concern identified by the Chairman "in order to better quantify the potential risks that may be imposed by operation of the incinerator at the Drake Chemical Superfund site."

CONCLUSION EFA and its partners have done much to lessen the threats to human health and the environment from the Drake Chemical 'site in the last 16 years. See, Draft Final Report. The Office of Ombudsman recognizes the hard work of the Drake Chemical site remediation team charged with overseeing a difficult cleanup and the difficult task of citizens in raising the issues which have been dealt with in the Ombudsman review process. In the final analysis, however, this Office and the U.S. Environmental Protection Agency have an obliga- tion to ensure a cleanup of the Drake Chemical site which is fully protective of human health and the environment. The judgement of the Office of Ombudsman is that this statutory mandate is best achieved by implementing the recommendations of this Final Report. Based upon the weight of the evidence and the need to ensure public confidence in the Drake cleanup, therefore, the Office of Ombudsman has no discretion to recommend continued operation of the Drake Chemical incinerator. Production burn operations should not resume, -if at all, until such time as these recommendations have been implemented with the full involvement' of the Drake Chemical Site Remediation Team, the EPA Environmental Response Team, the Clinton County Commissioners, the Lock Haven City Environmental Advisory Committee, the Pennsylvania County Farm Bureau and the citizen petitioners and their technical advisors.

•AR3I9579 APPENDICES

AR3I9580 APPENDIX A

AR31958I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460

May 8, 1997

OFFICE OF ' SOLID WASTE AND EMERGENCY RESPONSE .

MEMORANDUM SUBJECT: Interim Report on the Review of the Drake Chemical Superfund Site FROM: Robert J. Martin National Superfund Ombudsman TO: Timothy Fields, Jr., Acting Assistant Administrator Office of Solid Waste and Emergency Response

Attached is the Interim Report on the review of the Drake Chemical Superfund site. The review of the site issues has comprised approximately one year of extensive time and effort. Besides .gathering and analyzing documents and information from the Region and citizens , I also conducted site visits and a public meeting. The Interim Report invites extensive comments during the next 30 days in writing. A public meeting, on the record, will occur to take oral information and comments from all stakeholders. I will issue a Final Report, based on all the aforementioned. information developed, in 90 days. cc: Michael Shaprio Cliff Rothenstein

H«cycl«d/R«cyclibl« • Primed wim Vegetable Oil Based Inks on 100% Recycled Paper (40% Postconsumer) a n Q I Q *"j ft 9 NATIONAL OMBUDSMAN INTERIM REPORT

ON THE

DRAKE CHEMICAL SUPERFUND SITE

MAY 8, 1997

Office of Ombudsman EPA/OSWER.

AR3I9583 INTERIM REPORT ON THE REVIEW OF THE DRAKE CHEMICAL SUPERFUND SITE

TABLE OF CONTENTS

PAGE NO.

I. BACKGROUND ...... 1 II. AUTHORITY ...... 2

III. SIGNIFICANT ISSUES ...,<...... 3 IV, CONCLUSION ...... 20

V, SUMMARY OF RECOMMENDATIONS ...... 21

flR3!958l* I. BACKGROUND

Affected citizens represented by Arrest the Incinerator Remediation .(hereinafter "petitioners") traveled to St. Louis, Missouri on May 16, 1996, to petition Robert J. Martin, the Director of the EPA Office of Ombudsman, to designate the Drake Chemical Superfund site as an Ombudsman .case. Director Martin instructed petitioners to make their request in writing outside of. the forum of,the Times Beach case. Petitioners, in a letter to Administrator Carol Browner dated May 22, 1996, noted that "we are involved in litigation with EPA principally because of the unwillingness of our regional administrators to work openly and honestly with our community ... [w]e have been told so many lies at this point that we considered it impossible for us to ever- have the slightest confidence in EPA regional employees, or the EPA generally, ever again." See, AIR Letter dated May 22, 1996, Appendix A. Petitioners further noted that their "Ambassador had the opportunity to meet and speak with" the "National Superfund Ombudsman" and "came away with the surprising and welcomed impression that there is at least one person within the Agency who has some integrity, some concern for the people, and the possibility of some, objectivity. After this report, our group, for the first time in 16 months, felt maybe we had a chance of working with the EPA toward solution other than poisoning our community, even though Mr. Martin id not commit to working with us." See, AIR Letter of May 22, 1996. Appendix A. Following receipt of this Letter, the Office of Ombudsman designated the brake Chemical site as an Ombudsman case and initiated fact-finding under its standard procedure, leading to an Interim and Final. Report,; Subsequently, United States senators Arlen Specter and Rick Santorum, in a letter to Administrator Browner dated June 25, 1996, commented that '"[gjiven the controversy associated with the agency's cleanup plans for this Superfund site, and the misgivings voiced by some local elected officials and other residents based on the choice of a cleanup technology, we urge you to convene a public meeting as soon as possible that would be chaired by your Agency's National Ombudsman, Robert Martin. Our request for your National Ombudsman, rather than a Regional Ombudsman, is made because of the national implications of a decision to incinerate," See, Letter of U.S. Senators Specter and Santorum, dated June 25, 1996, Appendix B. Director Martin then chaired a public meeting which was held in Lock Haven, Pennsylvania, on September 19, 1996. Senator Specter, in a letter to Administrator Browner dated October 3, 1996, noted that fl[t']he meeting was chaired by your Agency's National Ombudsman, Robert Martin" and expressed a preference "to receive a report from Mr. Martin which would include his thoughts .on the iLssues raised at the public meeting." See, Letter of Senator Specter 'o Administrator Browner, dated October 3, 1996, Appendix C.

flR3!9585 - 2 -

Finally, Senator Specter wrote to Administrator Browner on - February 14, 1997 "in strong support of the' Ridge Administration's call for a suspension of incinerator operations at the Drake chemical site in Lock Haven, Pennsylvania" and expressed an understanding that "Mr. Martin is in a position to issue an interim report of his findings .... the residents of Clinton County certainly have every right to receive such a report and I urge you to take all necessary actions to ensure that Mr. Martin releases an interim report promptly." See, letter of Senator Specter to Administrator Browner, dated February 14, 1997, Appendix D. Director Martin met once again with petitioners in Lock Haven, Pennsylvania on February 20, 1997 to obtain more specific data and to hear any new information they might raise in connection with the Drake site. This interim report satisfies the initial request for the issues of petitioners to be addressed by the Office of Ombudsman. Those issues pertain to site characterization, risk assessment, site operations and legal and community involvement. Th© Office of Ombudsman recognizes that petitioners may disagree that an issue has been addressed and may, therefore, wish to preserve many issues for deliberation in the comment period and inclusion within the final report. The final report itself will delineate- findings of fact made by the Office of Ombudsman in this case; following a public comment period and another public meeting on the record.

II. AUTHORITY The Office of Ombudsman was established by the Congress within . Section 2008 of the Resource Conservation and Recovery Act. The office consists of the Ombudsman and a secretary, and no other staff. The office manages 36 cases and several thousand inquiries a year from the public with these limited resources. Section (a) of the law authorized the Ombudsman to "receive individual complaints, grievancas,. and requests for information submitted by any person with respect to any program ,or requirement under this Act." Subsection (b) authorized the Ombudsman to "make appropriate recommendations to the Administrator." EPA established the Office in 1986 pursuant to the Congressional mandate. Following sunset of the mandate in 1989, EPA decided to make the Office of Ombudsman and its functions permanent because "Congress has chosen this'solution for dealing with siich problems in the hazardous waste programs EPA administers." (See, Hazardous Waste Ombudsman Handbook at pg. 1-1.) EPA also •decided to broaden the function to include the Superfund program, among others, to serve the public better.

SR3I9586 •> Thus, "both the statutory language and its legislative history confirm the importance Congress places on the.public assistance functions of the Office of Ombudsman. By .centralizing these functions in the Office of"Ombudsman, Congress intended to improve EPA's responsiveness to the public with respect to the increasingly complex RCRA and Superfund programs .... the charge of the Ombudsman to provide assistance with problems, complaints or grievances, is an extremely broad one." f See, Handbook at pg. 2-2,3. Notably, the framework and authority of the Office of Ombudsman did not originate with EPA; EPA merely elected to make permanent an institution which the Congress had required in the law and for which the mandate had expired. ;

III. SIGNIFICANT ISSUES

• A, GENERA.L As previously discussed, many issues were forwarded to the Office of Ombudsman for consideration. The Office will retain jurisdiction of issues addressed herein as well as any issues raised before completion of the final report until petitioners wish to foreclose discussion on those issues. This is consistent with Ombudsman policy which provides that an "Ombudsman case is considered closed when all actions have been.taken to resolve the problem and the person has been notified. The main concern in closing a case is being reasonably certain that the person is satisfied that the Ombudsman has addressed all problems." See, Ombudsman Handbook at pg. 3-10. ... _ . . . -.._•-.•

B. SITE DESCRIPTION ' the Drake Chemical site is an inactive chemical manufacturing facility which operated from 1951 to, 1982. During its operation, the company manufactured chemical intermediates used in the dye, cosmetics, textiles, pharmaceuticals and pesticides industries. Immediately to.the west is theAmerican Color and Chemical site which is undergoing a RCRA cleanup. Within 1/4 mile of the site is an apartment complex, shopping center and Castanea Township Park. A major tributary of the Susquehanna River, Bald Eagle Creek, flows less than 1/2 mile south of the site; 3/4 mile north of the site, the creek flows into the west branch of the Susquehanna River. See, Drake Record of Decision at pg. 3.

AR3I9587 - 4 -

C. SITE CHARACTERIZATION ISSUES 1. Additional Waste Sites Director Martin observed several drums on a property in Lock Haven during the February visit to ascertain new information. Petitioners explained that the drums were disposed of within the Piper Aircraft facility by either the American Color and Chemical Company ("AC&C), the Drake, and/or Kilsdonk chemical firms. This is consistent with sworn testimony offered by Mr. Raymond C. Streck in a case which involved AC&C. See, Koppers V. Aetna, dated December 15, 1993, pgs. 57-60, Appendix E. In that testimony, Mr. Streck, in response to a question as to whether any of the owners of the Lock Haven.plant "bought a piece of property to dispose of waste product near the river bank?" replied that this was done "Down the other end of Piper near the runway.." He went on to state that he was aware that waste product was buried in different locations around the Piper area. ' The Office of Ombudsman asked the EPA Region III Ombudsman to investigate the matter of the drums further. The Regional Ombudsman reported that "the property is located near the Piper Aircraft facility owned by Monroe Farms" and that "the waste at the sites was generated by the American Color and Chemical Company (AC&C) as a result of their efforts to clean up several large sludge impoundments owned by the company." The Regional Ombudsman noted that a "former employee claims that only sludge waste was put into the trenches .... and that he knows nothing about drums having been disposed of in the trenches." The former employee was subsequently identified as Mr. Primo Marchessi, retiree from the AC&C firm. The AC&C is a defendant in the Drake consent decree and the subject of a RCRA consent order. No information has been found at this time by the Office of Ombudsman on the management of Kilsdonk's hazardous waste, Appendix F. The Pennsylvania Department of Environmental Protection ("PADEP") confirmed to the Regional Ombudsman that "there are now only the remnants of a total of nine drums at the three sites, and that they are empty .... the drums had plastic liners, but that the liners are now corroded .... the drums obviously contained chemicals at one time." Petitioners subsequently returned to the Piper site and with the use of a simple metal detector found another 18 drums at the Piper sites. PADEP nonetheless concluded that "the site poses no hazard to the community" because "there are no homes located down-gradient of the drum sites and.that none of the homes in the area are in the groundwater flow pattern of the site" and that "there are large .fields between the drum sites and the homes, and between the drum sites and any water bodies in the area." See memorandum from EPA Region III Ombudsman to the Office of Ombudsman, dated March 1-0, 1997, Appendix G, AR3I9588 Clearly, drums were found at the Piper sites in contravention of former AC&C official Marchessi's representations and in excess of "the number of drums found by the PADEP. Petitioners believe more drums may be present at the Piper sites. The source of the drums may be the AC&C site, the" Drake site, both sites, and/or other generators, such as Kilsdonk. The Piper drum sites are less than one mile from the AC&C and Drake sites. There may be other areas located within the Lock Haven community and the surrounding area whxrth were used as disposal locations. The Streck testimony alone notes that waste product "was buried in different places around here." Those locations included "[r]ight where K-Mart is..,, that used to be Hoberman's junkyard. Camelot Estate,, and over in the hollow, over Lockport." Streck .further testified that sludge waste was taken off of "the plant site" and disposed of in the above locations "[f]rom the 50's up until the 60's, when they started hauling out." See, Streck testimony at pg. 60, Appendix D. Petitioners have also pointed out that drums may be buried in Taggert Recreational Field and near the Unimart in Lock Haven. The Pennsylvania Bureau of Solid Waste Management noted in 1981 that "[t]he investigation at Drake Chemical Company is now being delayed awaiting the outcome of EPA's criminal investigation .... I received a telephone message from EPA regarding an air photo of Drake Chemical in Lock Haven. This photo revealed a possible buried dump site adjacent to the Drake prqperty. A search of courthouse files reveals that Hoberman Salvage Company and United Real Estate Development Association own this property* Yener Soylemez of EPA _was contacted, and this information was passed on to him. The investigation will continue as soon as EPA notifies me that their investigation is complete." See, Memorandum-to the File from-Thomas Showman, Solid Waste Specialist, Williamsport Regional Office, Bureau of Solid.Waste Management, Commonwealth of Pennsylvania, dated March 2, 1981, Appendix H. At -this time, the Office of Ombudsman has no other information regarding the alleged criminal investigation 16 years ago. . .' PADEP expressed to- EPA Region III on April 15, 1997 that a contractor would be retained to address the matter of the drum sites on the Piper property and that it would, not be necessary for EPA to duplicate their efforts. EPA Region III subsequently discussed "our protocol of allowing a State to.take responsibility for an emergency response .... it has always been our operational policy to give notice to the appropriate state agency both for their information and to provide them the first opportunity to carry out a response. This has been done respecting State program responsibilities to respond in a timely fashion to incidents that are closer to their own response personnel.11

AR319589 - 6 -

Clearly, the availability of State resources is a factor in an EPA determination as to whether to undertake a removal action to address an uncontrolled waste site. Seer National Contingency Plan, Subparts E and F. See also, Memorandum from Charlie Kleeman to John Armstead, EPA Region III Ombudsman, April 18, 1997. The policy expressed therein is to recognize "State's abilities to respond in a timely fashion to incidents that are closer to their own response personnel" and also "EPA giving States the opportunity to carry out their own responses at sites." See, Kleeman Memorandum, Appendix I* Subsequent to the National Ombudsman identifying drums at the Piper site, PADEP hired Westinghouse Remediation Services to investigate the entire area. These policy goals can be met, however, in a collaborative effort between the EPA and the PADEP. The overriding goal of the Superfund law and the National Contingency Plan is to protect human health and the environment. Here, several uncontrolled sites in the Lock Haven area may exist that will need to be quickly investigated and addressed. ' EPA and Pennsylvania have a long history of working together to address hazardous waste issues in the Lock Haven community. See, Showman Memorandum, Appendix H. See also, Consent Decree for the Drake Chemical site and the Consent Order for the American Color and Chemical site. EPA should support the efforts of the PADEP to address the drum sites at the Piper facility as the Agency has supported past investigative efforts in Lock Haven.

RECOMMENDATION EPA and the Environmental Response Team should assist PADEP to investigate and address the drum sites at the Piper facility and other uncontrolled sites which may exist in the Lock Haven area. EPA, the ERT and PADEP should consult with petitioners, other private citizens and local government officials to assure a collaborative effort that focuses on - appropriate sampling locations. Sampling and analysis should be done to determine the sources of tha drummed waste. 2. Contaminants of Concern Petitioners have argued that some contaminants have not been sufficiently characterized at the Drake site. For example, petitioners are concerned that Pentachlorophenol (PCP) was found at the Drake site. EPA has concluded that PCP was not produced, manufactured or disposed of at the site, but did note that "[o]ut of 78 soil samples at the site which were tested for PCP, only three

AR3195SO contained detectable levels...', while these detected concentrations were high, EPA believes they are probably due to the presence on the site of wood that had been treated with PCP as a preservative." See, EPA Integrated Risk Assessment at pg. 34. EPA had articulated earlier that PCP was "found sporadically throughout the area and in three on-site samples" but did not believe that the compound was site related. See, Drake Record of Decision at pg. 20. f i ~ i Whateve: - •; ,-,.£jry is advanced to explain the detection of PCP at the site, however, it is noteworthy that PCP was found in three samples at high concentrations and that it had been found sporadically throughout the area in earlier characterization work. Petitioners have also commented that Silvex, an herbicide, has not been sufficiently accounted for at the Drake site. EPA noted that silvex "was found at low concentrations in some drums of waste at the site" and that it "was not detected in any soil samples." See, Memorandum of"Frank Vavra, Remedial Project Manager, to Thomas C. Voltaggio, Director, Hazardous Waste Management Division, US EPA, "RCRA Dioxin Listed Wastes Will Not Be Treated in the Drake Chemical Superfund Site Incinerator", dated August 7, '1996, Appendix J. I Wastes from PCP are included in the waste listings which trigger a determination that a RCRA listed waste is present. As EPA has noted "an incinerator burning hazardous waste must be designed, constructed and maintained so that , when operated in accordance with the operating requirements specified under 40 CFR 264.345, it will achieve a destruction and removal efficiency (DRE) of 99.99% "for each principal organic hazardous constituent (POHC) in its waste feed. 40 C.F.R. 264.343 (a)(1). . An - incinerator burning certain RCRA "listed" wastes, however, must achieve a DRE of 99.9999-% 40 C.F.R. 264.343 (a) (2)." See, Vavra Memorandum, Appendix J. PCP waste does trigger RCRA listings in the FO26 and F027 categories-and silvex wastes trigger a RCRA listing for the F027 category. Historical-EPA analysis demonstrates high levels of dioxin in.former building structures and holding tanks at the Drake site. See, EPA memorandum from William A. Hagel, Remedial On-Scene Coordinator to Walter F. Lee, Chemist, Dioxin Task Force, Region III, "Dioxin Results F.rora Building Samples at the Drake Chemical Superfund Site", dated February 13, 1984, Appendix K. The findings of this memorandum led former Congressman and EPA Region III Administrator Peter Kostmayer to conclude in a letter to Vice President Gore that "the Agency has.failed to set proper federally regulated waste stream emission limits for dioxin despite- the existence of the 2/13/84 document which showed significant dioxin levels at numerous Drake site locations .. .." . See, Letter from Peter Kostmayer to Vice President Albert Gore, dated September 12, 1996, Appendix L.

AR3I959I It should be noted that dioxin was found in previous sampling only in site drums and structures which will not be incinerated. Fenac is the predominant site contaminant that will be incinerated. Fenac was known to have been produced at the site and was found in approximately 37 of 43 soil samples at Drake. EPA found that the components of Fenac "do not normally generate dioxin byproducts." See, EPA Integrated Risk Assessment at pg. 33.. EPA did not explain, however, whether Fenac and its components may generate dioxin by-products under conditions which are not deemed normal. It is clear that Fenac may form dioxin "under irregular operating conditions." See, Vavra Memorandum at pg. 5, Appendix J. The totality of the evidence known thus far shows that dioxin at high levels was present in structures and tanks and Silvex at lower levels was present in drums at the Drake site. Moreover, PCP was found at high levels in three locations in soils at the site and Fenac was found in virtually all sampling locations at the site. What is less clear are the levels of those compounds and the detection limits that were used to analyze for these compounds, in general, and the locations and number of soil samples taken for the Silvex compound at the Drake site. Further, although PCP was not found extensively at the Drake site, it is a recognized contaminant at the AC&C site which is located next to the Drake site. See, AC&C Consent Order. EPA was careful to note "chemical analysis has shown that the level of contaminants throughout the site do present a health risk and it is known that some of the specific compounds could be present even if they are not specifically detected by analytical methods." See, Drake Record of Decision at pg. 45. The. presence or absence of RCRA listed wastes in significant concentrations at the Drake site is a key issue at the Drake site. As previously discussed, the existence of RCRA listed compounds such as PCP and Silvex in materials to be incinerated at Drake could require a Destruction Removal Efficiency of 99.9999% as opposed to the current requirement of 99.99% The Office of Ombudsman acknowledges that EPA Region III has found that such wastes are not present in sufficient quantities to trigger RCRA listings and a higher DRE. The Office of Ombudsman has not been provided enough information, at this time, to comment on this Regional finding. PCP was found on three site locations, however, and Silvex and Dioxin were found in drummed waste and within structures and holding tanks on the site. It is not clear what the detection limits were for PCP and Dioxin in soils and the extent to which Silvex was sampled for in soils. As the Drake Record of Decision noted "some of the specific compounds could be present even if. they. are not specifically detected by analytical methods." See, ROD at pg. 45. The availability of the foregoing information and the need for public confidence in the selected remedy warrant an extremely cautious approach. AR3I9592 - 9 -

RECOMMENDATION EPA and the Environmental Response Team should conduct another round of sampling and analysis for dioxin and PCP and Silvex in site soils and in the waste stockpiles to be incinerated. Sample locations, analytical methods (use of EPA Method 8290) for sampling dioxin in soils and detection limits should be developed coopera- tively with the _PADEP, local government officials and the technical advisors for petitioners. An EPA Fact Sheet should then be prepared which explains the new sampling results and the old sampling results.

D. RISK. ASSESSMENT ISSUES 1. Petitioners have argued that the risk assessment for the Drake site is deficient. Three risk assessments have been performed to predict potential trial burn impacts from the Drake incineration operation. The first risk assessment was conducted in December of 1995. The second risk assessment report was completed in June of 1996. A third risk assessment of the trial burn was conducted in February of 1997 to reflect winter season conditions. EPA has concluded that despite variables and modifications in approach between the risk assessments, "the resulting calculated risks for each of the three risk assessments are within the range considered acceptable for cleanup activities under the Superfund hazardous waste program." See, EPA Draft Comparison Report at pg. 39. . . . EPA has also committed to evaluating the risks from operation of the incinerator during the trial .burn by analyzing real emissions data and '"EPA has committed that before we begin a production burn, we will havea public meeting to discuss a comprehensive risk assessment for the production burn, and as EPA has always maintained, we will not commence the production burn unless the risk assessment shows it is safe to proceed." See, EPA Region III letter from Gregg Crystal to Petitioners Technical Advisor, dated February 28, 1997. 2. Air Monitoring , Petitioners have argued that the risk assessment should take into account the problems the air monitoring network is having in connection with B-Napthylamine (BNA). Petitioners noted earlier this year that "it is clear there are non-detects for BNA at the monitors .... more information is needed before the results can be validated. Unresolved questions include? calibration parameters, quality control procedures, field blank use and recovery, impact of local modification and spike recovery on local Drake monitors ...." etitioners asked EPA to "stop incineration until perimeter and

AR3I9593 - 10 - off-site monitors can measure BNA at the trial burn requirement of .001 ug/m3; or if that level is technically impossible then have a public comment period on whatever level the monitors are ultimately successful in achieving." See, GAP Preliminary Report No. 2, dated January 28, 1997. EPA was not able to meet the original "BNA detection limit of 0.001 micrograms per cubic meter" but has been able to meet a detection limit of "2.0 micrograms of BNA per cubic meter using a NIOSH analytical method, which is well below the PA Air toxic guidance level for BNA of 19.0 micrograms per cubic meter." See, EPA Letter to Petitioners at pg. 2, dated February 28, 1997. Although this positively addressed the failure to achieve the original trial burn requirement for detection of BNA in the air . • monitoring network, many non-detects for BNA resulted during the trial burn period because of the detection limit problem.

RECOMMENDATION EPA and the Environmental Response Team should meet with PADEP and the technical advisors to petitioners to explore options for analytical methods that will meet the original requirement for detection of BNA in the trial burn plan. Particular emphasis should be accorded to the issues raised by petitioners in connection with detecting BNA in the air monitoring network. Following such discussions, an EPA Fact Sheet should be issued which explains the analytical method that has been selected together with reasons supporting the choice of the method. 3. Weather Data Petitioners have argued that the meteorological component of the risk assessment is deficient because the data is not site specific to the Drake facility but is derived from the Williamsport, Pennsylvania Airport which is approximately 20 miles away from the site. EPA has explained that this data "was used in lieu of on-site data that had been invalidated for the projected period of the trial burn. Those on-site data were invalidated because of instrument data and improper tower siting. For purposes of estimating the ambient impacts of the incinerator stack emissions during normal operations, EPA used the ISC3 (Industrial Source Complex Model, Version 3) model on the Williamsport data, and for calculating the effects of upset emissions, EPA used the "INPUFF" mo.de 1." See, EPA Response to Comments, Drake Chemical Superfund Site Trial Burn Process, dated September 12, 1996.

AR3I959U - 11 - , ...

A related issue forwarded by petitioners is the lack of analysis within the risk assessment for thermal atmospheric inversions in the Valley location, in general, and within the air shed above the site, in particular. This is a concern supported by former Congressman and EPA Region III Administrator Peter Kostmayer who commented that "[i]n consultation with EPA technical staff, I directed the Regional Hazardous Waste Division to provide local citizens with a full and complete assessment of the effects of atmospheric thermal inversions as they relate to the proposed Drake . incineration .... EPA has failed to provide a full and complete atmospheric assessment ....". See, Kostmayer Letter to Vice President Albert Gore, dated September 12,. 1996, Appendix L . .Ms. Justh, a citizen of Lock Haven, commented in the public meeting held last September that EPA should not abandon its efforts to use site specific weather data but should return, to the site and develop a suitable data base. This was supported by other citizens who also felt that the commitment made by EPA to assess thermal inversions in the Valley was broken. See, Transcript of Drake Public Hearing at pg. 174, dated September 19, 1996, Appendix M. The CALPUFF and INPUFF models are useful for assessing the ambient impacts of incinerator stack emissions during normal and upset conditions, however, they may -not be uniquely sensitive to the site specific weather conditions or to thermal inversions in the Valley where Lock Haven is situated. It may be useful to employ weather balloons to measure the effects of thermal inversions on incinerator stack emissions. In any event, petitioners are concerned that EPA is proceeding without the benefit of site specific data for the project.

RECOMMENDATION EPA and the Environmental Response Team should develop instrumentation and methodologies to assess, on a site specific basis, the ambient impacts of incinerator stack emissions during normal and upset conditions at the Drake site. Methodologies (e.g., weather balloons) should also be developed to assess the impact of thermal inversions on incinerator stack emissions at the Drake site. Results from employment of these methods, if significantly different from the computer modeled results, should be factored into the Integrated Risk Assessment.. A decision should then be made as to whether it is safe to proceed. 3. Fugitive Emissions Petitioners have argued that fugitive emissions from the site have not been sufficiently addressed in the risk assessment. The EPA Integrated Risk .Assessment provides that "fugitive emissions

AR319595 - 12 - will be negligible due to the control measures prescribed." See, pg. 16. Presumably, those measures include negative pressure enclosures and watering down the site waste and soils. Petitioners remain concerned, however, that the large piles of waste feed and ash on the site pos© a threat to the community. Those piles are not all contained within negative pressure enclosures and petitioners have complained that winds have carried dust and particulate matter. into the community. A nursing home which provides care for the elderly is within one-quarter mile of the site.

RECOMMENDATION EPA and the Environmental Response Team should develop, where appropriate on the site, additional techniques to manage fugitive emissions from the Drake site, in general,, and the waste feed and ash piles, in particular. This could include the use of more n©gativ© pressure enclosures or the use of additional synthetic coverings to prevent spread of dust and particulate matter into the community. Any such measures should be established'in consultation with th© PADEP, local government officials and technical advisors to th© petitioners.

C. SITE OPERATIONS ISSUES 1. Chain of Custody The technical advisor for petitioners made a finding in January that "the chain of custody for the bottom ash samples was broken for both trial burn runs conducted on 1/25/97, and consider the samples invalid .... it was observed that the trial burn sampling contractor MRI ash sampler who was collecting bottom ash samples every half-hour for both trial burn runs left the bottom ash samples unsecured, unattended, and "completely out of his sight for over 30 minutes between each sample period throughout the entire two runs. H© also left the entire first run samples unsecured, unattended and completely out of his sight for over 30 minutes after the end of the run. During the entire two runs all persons on site had full and fre© access to th© samples. Further access was given to another bottom ash sampler working for the EPA contractor OHM. This sampler who was collecting bottom ash samples hourly during both runs to fulfill th© put-back sampling requirement had.full, free and unsup©rvised access to the MRI samples. He also shared the same work station, used similar collection plans, and collected samples at times different from the MRI sampler." See, GAP Memorandum to EPA, Hand Delivered on Site, January 26, 1997.

AR3I9596 - 13 -

The technical advisor went on to note that "[tjhis issue was brought to your attention after the first run in an attempt to prevent further violations, possibly resulting in declaring further runs invalid. There.-was no resolution on this issue, and the second run continued with no changes in the chain of custody procedures. It must be pointed out that less than satisfactory chain of custody procedures prompted,a second stack test burn last week at the Times Beach site almost a year into their project. This issue should be resolved promptly, hopefully while the MRI sample team is still on site." See, GAP Memorandum dated January 26, 1997. EPA Region III noted the observation of the technical advisor that "a cooler of ash samples was left unattended for approximately one-half hour inside the secure area" .... but .concluded that " [p]roper chain of custody and traceability procedures were followed for ash samples. The data is reliable. These procedures have been reviewed by EPA^ PADEP, USACE and independent consultants." See, EPA Letter from Gregg Crystal to GAP dated February 28, 1997. It would be useful to review the procedures which apply to chain of custody to address this issue. Generally, all samples were to be "stored with ice in insulated containers in the field and during transport. Soil feed 'samples, ash samples and stack samples will be stored and,shipped in separate containers." See, Engineering Descriptions, Section 6.1 Sampling Handling and Preparation. It is also understood that "the field sampler is personally responsible for the care and control of the samples collected until they are properly transferred to a field sample custodian or dispatched to MRI. The crew chief oversees proper preservation, storage and security of samples during the field work." See, Engineering Description, Field Control of Controls at 7-3. A model sample custody record is included to provide . for storage container integrity and sample inventory checks. That provides that "[t]he storage containers and samples should be checked each day in the field. Containers may remain unlocked or unsealed only while in view of the custodian".... [f]or sample traceability, only inventory checks need to be entered during sample transfers to the next custodian. Storage containers do not have-to be locked or sealed, but they must be placed in a secure location at all times." See, Engineering Description. Instructions for Filling Out the Sample-Custody Record, Section 7-5, Figure 7-lb.

AR3I9597 - .14 -

EPA has an expectation that "some of the QA/QC objectives may not be met. In such cases, the results will be flagged in the test report and the QA report, it is understood, based upon discussions between OHM and EPA, that flagged data would be acceptable if there are QA/QC problems (i.e. the Risk Burn tests would not be considered as invalid.) Any such problems will be noted in the report, along with an assessment of the impact on the test results." See, Drake Quality Assurance Report, G.8.4 at G54-55. Corrective actions must be taken for samples which are lost, broken, incomplete or invalid. In those events, the following must occur: "1. Resample or extend test if possible. Contact project leader for instructions. Redo the test if lost sample severely compromises test results. The sampler, crew chief, analyst, or project leader is required to document the problem and actions taken in the field or laboratory notebook for inclusion in the project files." See, Table of Corrective Actions, Section 15-2. The. Office of Ombudsman is not finding that the data from the Risk Burns and Trial Burn is necessarily invalid at this time. The type of quality assurance and chain of custody protocol normally adhered to by EPA in a Superfund cleanup, however, were not followed at the Drake site for purposes of supervising the collection of bottom ash samples during the Trial Burn. The custody record requires that "[c]ontainers may remain unlocked or unsealed only whil© in view of the custodian" .... and further provides that "[s]torage containers do not have to be locked or sealed, but they must be praced in a secure location at all times." See, Sample Custody Record, Section 7-5, Figure 7-lb. Here, bottom ash samples during the trial burn phase were, according to the technical advisor for the petitioners, left unattended and completely out -of sight for 30 minute intervals while th© samples were unlocked. This violates the requirement that samples b© unlocked only while in the direct view of the custodian. As to whether th© samples were placed in a "secure location at all times" an argument could be made that the Drake site itself is a secure location. Th© security of Drake site itself, however, has been questioned significantly by petitioners and former employees. Again, the technical advisor to petitioners noted that n[©]vidence of beer drinking was discovered on-site on 1/27/97, on- sit© inspection showed conclusively that empty beer cans and bottles came from on-site because beer cans and'bottles were mixed with site documents in double sealed trash bags in dumpsites located inside the second interior guarded fence. This evidence strongly suggests that th© beer was consumed on site." See, GAP Memorandum to EPA dated January 1997. EPA does not believe that there is any evidence to "substantiate the claims that any site supervisor or employee has

AR3I9598 - 15 - violated" stringent policies against possession or use of alcohol or drugs on the site. EPA has also noted that "at least two more inspections by OSHA are upcoming including one by a specialized incinerator inspection team.". See, EPA Letter from Gregg Crystal to GAP, dated February 28, 1997. Nonetheless, the presence of the empty beer cans and bottles themselves represents a breach in the security of the site because such items should not be on the site proper. In addition, one former OHM employee alleged "he was "roughed up" and stuffed in a drum containing contaminated soils in order to coerce his .silence regarding problems at the Drake site". See,'GAP Letter to EPA Region III, dated February_4, 1997.. This is not an atmosphere which is conducive to a secure site. In such an atmosphere, guarding the integrity of .samples is of critical"importance7" Samples should be under the constant supervision of a custodian or field sampler, until they are locked within a secure structure such as a sampling trailer on the site. The management of ash collection and sample shipping by EPA Region. VII and'the Environmental Response Team in the retest recommended by the Office of Ombudsman for the Times Beach site in Missouri is noteworthy and should be followed at the Drake site. Regarding ash sample management, in particular, "[e]ach jar was labeled with the time and date of sample collection, the project name, and the analysis to be performed. A custody seal was attached to the lid of each jar and each jar was placed in a ziplock plastic bag. Separate chain of custody forms were completed for the REAC samples, the split samples, and the archive samples. Samples were kept under constant surveillance by REAC personnel until the sample cooler was packed and custody sealed. At the .end of each day the samples were kept in the locked REAC trailer." -See, EPA Environmental Response Team Final Report on the Stack .Test for the Times Beach Project, dated April 1997, Section 2.2.2.2, Ash Sample Management at pg. 14.

RECOMMENDATION' EPA and the Environmental Response Team should carefully examine the quality .assurance records for all samples to assess whether the chain of custody procedures for handling of all samples (stack, etc.) were any different than the procedures for bottom ash samples of the Drake trial burn. The assessment should be done in consultation with the PADEP, local government officials and the technical .advisor to the petitioners.

AR3I9599 - 16 -

D. LEGAL AND COMMUNITY INVOLVEMENT ISSUES 1. Community Involvement Issues Petitioners and others within the Lock Haven community feel that commitments made my former EPA Regional Administrator Kostmayer have not been observed since his departure from EPA. The thermal inversion and waste stream emissions limits were discussed previously in the section on risk assessment issues. Following a discussion with petitioners, Kostmayer also noted that "EPA has not performed an assessment of new technologies .... Unless the EPA can fully respond to and resolve to the community's satisfaction all of the serious questions which remain regarding th© impending Drake incineration, I believe the Agency should reopen the Record of Decision (ROD) on the Drake Chemical site ....". S©©, Letter of Peter H. Kostmayer to Vice President Albert Gore dated September 12, 1996, Appendix L. The Clinton County Farm Bureau communicated directly with th© Offie© of Ombudsman and noted that "[d]ue to recent concerns b©ing voiced from more of our members, our Board of Directors voted to extend our concerns to your office in hopes that you could be instrumental in persuading EPA to reopen their Record of Decision. Our Board would like a determination of, 8 years later, whether or not incineration is still the best method of cleanup for this site b©ing that th© 1988 Record of Decision was based on the risk assessment being done in that time period. A new risk assessment has been developed this year for this site and we feel that a new Record of Decision should be established based upon new findings and statistics. We would also like to be assured that there is an effective evacuation plan for all residents in Lock Haven and nearby communities should any detrimental malfunctions occur at the site." See, Letter of Clinton County Farm Bureau to th© Office of Ombudsman, dated November 5, 1996. State legislators addressed pointed remarks to EPA on th©s© matters. For example, State Senator J. Doyle Corman commented that "[w]© have lost the public input we so desperately tried to establish in th© early days of this project .... now, EPA is simply running th© show as it sees fit, no matter what local officials or State officials say. We cannot tolerate this attitude any longer .... this Agency is supposed to be here to help clean up a man mad© disaster .... not create another one." See, Statement of Senator J. Doyle Corman, dated February 12, 1997, Appendix 0. Moreover, State Representative Cam'ille George, the Chairman of th© Environmental Resources Committee in the Pennsylvania House of Representatives for 14 years, commented that "I can state unequivocally that this operation appears to be the most poorly

AR3I9600 - 17 - operated and poorly regulated one that I have ever seen." See, Letter of Representative Camille George to EPA Administrator Carol Browner dated April 24, 1997, Appendix N. PADEP Secretary James Seif also commented that "EPA staff have "frequently missed weekly progress meetings being held between the contractor, the U.S. Army Corps of Engineers, DEP and supposedly EPA _to discuss..technical and other issues of concern .... causing serious problems in providing the community with reliable information about what is happening at the site .... If not corrected, these problems could put the community, the environment and EPA's credibility at risk when the incinerator begins full operation." See, Statement of PADEP Secretary James Seif, dated. February 14, 1997,, Appendix P. Finally, United States Senator Santorum remarked that "the only reasonable conclusion at this point is to halt all activity at Drake until we resolve the problems surrounding this operation" ....-"for this activity to go forward in an atmosphere where the community lacks trust in the operation and State and local concerns go unanswered is a recipe for disaster." See, Statement of United States Senator Santorum, dated February 13, 1997, Appendix Q. United States Senator Specter expressed a "view that the cleanup must not exacerbate the health and environmental problems associated with the Drake site" and expressed "strong support .... for a suspension of incinerator operations at the Drake site." See, Letter of United States Senator Specter to EPA Administrator Browner, dated February 14, 1997, Appendix D. The Pennsylvania State Legislature has also raised concerns with respect to the Drake project by enacting a resolution which found that "[s]erious concerns have been raised by the Pennsylvania Department of Environmental Protection about the management of the cleanup which could threaten the community and the environment; and there is confusion over which of.EPA's employees or contractors has ultimate on-site authority for management of the project and to shut down the incinerator if problems occur; and EPA staff has chosen not to come to progress meetings with the contractor, the United States Army Corps of Engineers and DEP to review issues and concerns about site cleanup; and the EPA did not consult with the community or DEP about the schedule or technical scope of the trial burns which have been conducted to date; and the EPA did not advise the community or DEP of the steps it is taking to investigate allegations of drug, and alcohol abuse among employees that operate the incinerator;". See, Senate Resolution No. 31. dated April 15, 1997, Appendix R.

SR31960I - 18 -

The Legislature resolved to "urge the USEPA to cease operation of the incinerator at the Drake Chemical Superfund site until the serious concerns about on-site decision making, involving* th© officials of the Borough City of Lock Haven, Pennsylvania and the Pennsylvania Department of Environmental Protection in key decisions and th© allegations of drug and alcohol abuse are investigated ...." and that EPA "publically disclose the full and complete test results from all trial burns at the Drake Chemical site as soon as they are available." Se. . Senate .Resolution No. 31. April 15, 1997. The Office of Ombudsman has brought to the attention of the EPA Inspector General allegations of drug and alcohol abuse and d©ath threats related to the Drake site cleanup. Notably, EPA Region III has begun to address many of these problems. EPA Region III Administrator McCabe pointed out recently that "USEPA, USAGE, and PADEP held a partnering meeting in Lancaster, Pennsylvania, on March 5 and 6, 1997 to resolve PADEP's concerns" and based on this meeting it is the Region's "understanding that these concerns have now been addressed." See, Letter from EPA Region III Administrator McCabe to United States Senator Santorum, dated April 21, 1997. Although €he letter discussed many of the issues raised by petitioners, petitioners do not feel that the letter was responsive to their concerns.

RECOMMENDATION ,EPA should defer any production burn operations until appropriate Federal law enforcement officials have completed an investigation of all drug and alcohol abuse issues raised by Pennsylvania State Senate Resolution 31 and direct and anecdotal information provided the Ombudsman about drug and alcohol abuse and death threats. 2. Legal Issues SEDA-COG, the Council of Governments representing 13 counties in Pennsylvania, including Clinton County where the Drake site is located, has proposed to the Congress that "citizens and local governments" should be able "to legally challenge EPA prior to th© completion of Superfund cleanups ff there is reasonable concern that irreparable harm to a population may occur." The county governments have reasoned that "Superfund sites generally contain potentially lethal or carcinogenic toxins and irreparable harm to a population may result from EPA's choice of remediation, or from . violations of the law occurring on the clean-up site itself." S©a, Issue Papers for SEDA-COG Congressional Meetings.

HR3I9602 - 19 -

' RECOMMENDATION The EPA Office of General Counsel should fully explain to SEDA-COG the law and the policy which support.the prohibition of legal challenges to EPA Superfund cleanups prior to completion. EPA should consider expansion of dispute resolution mechanisms within Superfund consent decrees in general and in the Drake consent decree, in particular, to allow for intervention by aggrieved parties where irreparable harm to a c _;*»unity may result from EPA's choice of remediation or from violations of law occurring on the site itself. 3. EPA Contractor, Other Personnel \ On October 9, 1992, Chemical Waste Management Inc. of Oak Brook, Illinois agreed with the United States Department of Justice to pay $11.6 million in fines to settle federal charges in connection with the cleanup of the Lackawanna Refuse Superfund site near Scranton, Pennsylvania. At the time, this was the largest environmental crimes case prosecuted under" the Superfund law. In addition to the criminal fines levied against the firm, the Company agreed to terminate and/or discipline six CWM employees. The Office of Ombudsman understands that the firm was not debarred as a result of the criminal fines or the administrative settlement with the EPA. Petitioners expressed a concern that the same terminated and/or disciplined individuals may now be working for OHM at the Drake site. EPA Region III has found that,"[t]here are no employees or contractors-working at the Drake site that are debarred from state or federal projects." See, Letter from EPA Regional Administrator McCabe to United States Senator Santorum, dated April 21, 1997. Debarment is not the central issue, however, of petitioners concern about these individuals who may be working at the Drake site. Petitioners wish to know if these potential individuals worked at the Lackawanna site during the period when criminal violations were committed and/or were either disciplined or terminated by CWM at the Lackawanna sate five years ago. Beyond noting the specific concern of petitioners here it would not be appropriate for the Office,of Ombudsman to pursue this matter directly. - .

RECOMMENDATION 'The EPA Office of Inspector General should, if appropriate, respond directly to the petitioners concern that individuals who worked at and were the subject of an administrative settlement between CWM and EPA five years ago which involved either termination and/or discipline to settle charges are now working for the Drake site contractor, OHM Inc.

AR3I9603 - 20 -

IV. CONCLUSION Petitioners have offered meritorious issues for review by the Office of Ombudsman. This interim report addresses many of those issues. Several other issues such as the request to assess new technologies, to assure an evacuation plan and to examine the actual operation of the incinerator could not be dealt with in this interim report because of time and resource constraints. As previously noted, thos© issues and others which may be raised during the comment period will be addressed within the final report of the Office of Ombudsman on the Drake site. The-Office of Ombudsman will take written comments from those parties who wish to make them for 30 days after th© issuance of this interim report. The Office of Ombudsman then proposes to hold another public meeting on the record so that interested parties may once again formally comment on Drake site issues. The Office of Ombudsman will then issue a final report on th© Drak© site within 30 days after the public meeting on the record. Th© ©ntire period for completing the review of the Office of Ombudsman should take no longer than 90 days. Thus, a final report should b© issued by August 8, 1997, following opportunities for written and public comment on the record and the evaluation of those comments by th© Office of Ombudsman. This should also provide for enough time for the execution of any interim recommendations which ar© accepted by EPA and for EPA to make available the data from the trial burn to appropriate parties such as the PADEP, local government officials and petitioners and their technical advisors. EPA has committed that no production burn will take place at the Drake site before May 15, 1997. The principal recommendation of the Office of Ombudsman in this interim report is that no production burn take place at th© Drake site until after this review process has been completed which should be no earlier than August 8, 1997. The Office of Ombudsman agrees with Pennsylvania State Representative Camille G©org©, who recently communicated to the Office that lf[t]hese matters need to be fully investigated before any further action is taken to remediate the Drak© site." See, Letter from Representative George to th© Office of Ombudsman, dated April 30, 1997, Appendix N.

RECOMMENDATION EPA should not begin production burn operations at the Drake Superfund site before completion of the review of the. EPA Office of Ombudsman and the issuance of a final report on August 8, 1997- Th© interim period will be used to take written and oral comment on the record from the community and other stakeholders, to execute any interim recommendations agreed to by EPA and to distribute the trial burn results to appropriate parties for their information and analysis.

SR3I960U - 21 -

V. SUMMARY OF RECOMMENDATIONS EPA and the Environmental Response Team should assist PADEP to investigate and address the drum sites at the Piper facility and other uncontrolled sites which may exist in the Lock Haven area. EPA, the ERT and PADEP should consult with petitioners, other private citizens and local government officials to assure a collaborative effort that focuses on appropriate sampling locations. Sampling and analysis should be done to determine the sources of the drummed waste* EPA and the Environmental Response Team should conduct another round of sampling and analysis for dioxin and PCP-and-Silvex in site 'soils and in the waste stockpiles to be incinerated. Sample locations, analytical methods (use of EPA Method 8290) for sampling dioxin in soils and detection limits should be developed coopera- tively with the PADEP," local government officials and the technical advisors for petitioners. An EPA Fact Sheet should then be prepared which explains the new sampling results and the old' sampling results. EPA and the Environmental Response Team should meet with PADEP and the technical advisors to petitioners to explore options for analytical methods that will meet the original requirement for detection of BNA in the trial burn plan. Particular emphasis should be accorded to the issues raised by petitioners in connection with detecting BNA in the air monitoring network. Following such discussions, an EPA Fact Sheet should be issued which explaihs the analytical method. _that has been selected together with reasons supporting the choice of the method. _ ..___.. E,PA and the Environmental Response Team should develop instrumentation and methodologies to assess, on a site specific basis, the ambient impacts of incinerator stack emissions during normal and upset conditions at the Drake site. Methodologies' (e.g., weather balloons) should also be developed to assess the impact of thermal inversions on incinerator stack emissions at the Drake-site. Results from employment of these methods, if significantly different from the computer modeled results, should be factored into the Integrated Risk Assessment. A decision should then be made as to whether it is safe to proceed. EPA and.the Environmental Response Team should develop, where appropriate on the site, additional techniques to manage fugitive emissions from the Drake site, in general, and the waste feed and ash piles, in particular. This could include the use of more negative pressure enclosures or the use of additional synthetic coverings to prevent spread of dust and particulate matter into the community. Any.such measures should be established in consultation ith the PADEP, local government officials and technical advisors to the petitioners. ' . . AR319605 - 22 -

EPA and th© Environmental Response Team should carefully examine th© quality assurance records for all samples to assess whether the chain of_custody procedures for handling .of all samples (stack, etc.) were any 'different than the procedures for bottom ash samples of the Drake trial burn. The assessment should be done in consultation with the PADEP, local government officials and the technical advisor to the petitioners. EPA should defer any production burn operations untij. appropriate Federal law enforcement officials have completed an investigation of all drug and alcohol abuse issues raised by Pennsylvania State Senate R©solution 31 and direct and anecdotal information provided the Ombudsman about drug and alcohol abuse and death threats. Th© EPA Offic© of Inspector General should, if appropriate, respond directly to the petitioners concern that individuals who worked at and wer© the subject of an administrative settlement between CWM ajid EPA five years,ago which involved either termination and/or discipline to settle charges are now working for the Drake sit© contractor, OHM Inc. The principal recommendation of the Office of Ombudsman in this Interim Report is that no production burn take place at the Drake site until after the Ombudsman review process has been completed which should be no earlier than August 8, 1997.

RR-319606 APPENDICES

NATIONAL OMBUDSMAN INTERIM REPORT

ON THE

DRAKE CHEMICAL SUPERFUND SITE

MAY 8, X997

AR319607 APPENDIX A

AR3196Q8 P. 81

ARREST THE INCINERATOR REMHDIATION POB«1$6 . LockHaven, PA 17745

Carol M_ Browner EPA Adminirtrator

BlUWTICf,

W* «frg ineiiJgHi rfflm ATR StMritig r mcijierKor in Lock Hiven, PA, are eoremdy ditteEaed at 6ie neve ofteEPA^idsn to create xcgioavl f EPX There hat bem only one; ax! dm wMtpcfate louocdiimy toccdttot* • *

At Aftptaaefrt rime me ate inuiiJMf il rn Krigptiim wttfc TPA prmfrpaHy hgg^MB flf ffc* ifWfilUnyi rcgiooai »JMiiiunu>ots to node openly md hone«ay with our amununity. We htvc been toidio many j ^at>oe^ • EPA enipfcjec^ or tte EPA genenfly, ever again.

Bocft ufaohave been be^poaonedty flic EPA since MncklTJh. (Wcwiihyouoookl ; pcnofl«%»e« the eye* of tfaotepcopia.. the sheer §»dne«. TotfatttMovveQro«m£Orea&nttttwQaidi Jmowin^ypabonittosmpeopld IfthcUSGoMeiKBientii9^ We have no cuunuBncft m jcajjooK EPA ^ bftadqiitttHi cc tfacir ahflfly la fgovidg m widi the type and qaalityof agytoe^BBfloed. 2hfr*&tet2fi1u$ crepcttti«a«»ngfn

2Du (OB CfloCtnflGOCCB. flr IV^fi AflBDB C OCBkOO* IB ^&9B fliCOOOBl fttf tflO C3iflBOfi HdaBIlttBCabOtt CUB sfl aOBBD atEPAi^ we cjtjpBot you 10 tate tiu* Siaoert^r,

aR319609. APPENDIX B

AR3I96IO 13:19 KAA 202 224 4254

Suited States WASHINGTON, DC 20510

June 25, 1996

The Honorable Carol M. Browner Administrator " . Environmental Protection Agency 401 M Street, S.W. Washington, DC 20460

Dear Administrator Browner: Recently, we met with residents and local officials from the Lock Haven, Pennsylvania area who continue to be concerned with your agency's plans regarding the Drake Chemical Superfund site. • \

As you are aware, there has been much, controversy associated with the decision by the Environmental Protection Agency to utilize an incinerator as the primary means of destroying contaminated waste at this former industrial site. The use of an incinerator is currently being litigated by a local environmental group ("Arrest the Incineration Remediation"), which believes that there will be substantial health hazards to the community if the contaminated soil is bunted because of the air pollutants that will be emitted into the valley containing the site. They have recommended that your agency reopen the Record of Decision and consider other technologies that would not lead to increased air pollution in the region. Given the controversy associated with the agency's cleanup plans for this Siq>erfiirid site, and the misgivings voiced by some local elected officials and other residents based on the choice of a cleanup technology, we urge you to convene a public meeting as soon as possible mat would 'be chaired by your agency's national ombudsman, Robert Martin. Our request for your national ombudsman, rather than a regional ombudsman, is made because of the national implications of a decision to incinerate. We would expect regional EPA officials to participate, including those most familiar with the Drake site, and would strongly encourage the Regional Administrator, Mr. McCabe, to atiendas welL As always, we appreciate your prompt assistance on this matter. Sincerely,

Rick Santorum

I APPENDIX C

AR3196I2- '-•Si 12:54 ® , S3002

,.„_ INTELLIGENCE JUDICIARY .United States 3niate APPROPRIATIONS WASHINGTON, DC 20510-3802 October3,1996 * *

The Honorable Carol M, Browner Administrator Environmental Protection Agency 401 M Street, S.W. Washington, DC 20460

Dear Administrator Browner; At the request of Senator Santorum and myselfc the Environmental Protection Agency held a public meeting regarding the Drake Chemical Superfund site in Lock Haven, Pennsylvania on September 19,1996. The meeting was chaired by your agency's national ombudsman, Robert Martin. - As you are aware, there has been much controversy associated with the decision by the Environmental Protection Agency to utilize an incinerator as the primary means of destroying contaminated waste at this former industrial site. I am advised that the incinerator is currently under operation to conduct a test burn at the site. Many citizens and officials from Lock Haven believe that there will be substantial health hazards to the community if the contaminated soil is burned because of the air pollutants that will be emitted into the valley containing the site. They have recommended that your agency reopen the Record of Decision and consider other technologies that would not lead to increased air pollution in the region. 1 have received many calls from citizens who attended the public meeting in Lock Haven on September 19. I would like to .receive a report fromMr.L Martin which would include his thoughts on the issues raised at the public meeting. As always, I appreciate your prompt assistance on this matter. Sincerely

Arien Specte

AR3I9613 APPENDIX D

3I96IU United grates £tnatf WASHINGTON DC 2051WS02 February 14,1997

The Honorable Carol M. Browner Administrator Environmental Protection Agency 401 M Street, SW Washington, DC 20460 Dear Administrator Browner I am writing in strong support of the Ridge Administration's call fora suspension of incinerator operations at the Drake Chemical Supcrfund site in Lock Ilaveu, Pennsylvania. As you know from my previous correspondence with you, I have had substantial reservations regarding die potential health Impact on Clinton County residents from the cleanup of th« Drake site. During my 1996 visit to Lock Haven and in my meeting in Washington with Clinton County Commissioner Dean Bottorf and members of a local citizens' group* 1 made clear my view that the cleanup must not exacerbate the health and environmental problems associated with the Drake site. Just last month, I wrote you to convey Commissioner Bottorfs most recent concerns with the undoing Incineration process. His frequent reports of problems associated with the trial incineration have troubled me and it is not surprising tn me that Secretary Seif haa expressed similar concerns. On June 25,1996, Senator SantoninL and I wrote you to request that you send your agency's ombudsman, Robert Martin, to Lock Haven for a public meeting. Mr. Martin heM a public meeting on September 19,1996 to discuss ihc implications of the agency's decision to use an incinerator. According to my staff, Mr. Martin is in a position to issue an interim report of his findings as & follow up to the meeting. After five months, the residents of Clinton County certainly have every right to * receive such a report and I tug* you to take all necessary actions to ensure that Mr. Martin releases an interim report promptly. As the Administration's highest ranking official1 on environmental matters, you know how important it'is to generate confidence in our government's ability to protect the health of our citizens. It is dear to me that many Penntylvanian* in Clinton County «ad neighboring areas fcave no faith in EPA's decision to allow incineration at the Drake site. Accordingly, I urge you to review this matter personally and to address their concerns. Mybcst. , Sincerely,

AR3I96I5 APPENDIX E

RR3196I6 KOPPERS VS. AglNA • RAYMONI? C. StRECK • DECEMBER 15, 1993 57 59 I can remember. 1 know what was taken out there? . 2 Q You indicated that at a certain point in 2 A It was sludge. McCormick's then was a ^ time In the late '60'*, 1 believe, they started taking 3 construction outfit here in town. la fact," their Hi it, instead of burying it in the plant site, they 4 offices was right up there, right across from the ^5 started taking it off site; is that right? 5 Catholic church. And they used to haul stuff for the 6 A Right. 6 American Aniline. 7 Q Do you know where they took it? 7 Q That was McConakk? 8 A They used to take h to Snow Shoe up to the 8 A McCormick Construction. 9 coal stripping s. Because Briggs •- in fact, he's 9 Q Do you know when they hauled sludge for Lock 10 deceased now. He was a truck driver and he would bring 10 Haven site? 1 1 a load of coal in, and they would load up sludge and 11 A As far as the year? I don't. 12 he'd haul it back out 12 Q How about approximately? 13 Q Is Mr. Briggs still around? 13 A Jesus, I couldn't even give you a good guess 14 A He's deceased. 14 on that. 15 Q Did you ever hear or was it ever suggested 15 Q ' And what about the Lockport area? Id that any of the owners of the Lock Haven plant bought a 16 A Lockport area, that was in the '60's, too. 1 7 piece of property to dispose of waste product near the 17 Q Late '60's, early .'60's?' 18 riverbank? 18 A Early *60's and late '60's. 19 A Down the other end of Piper by the runway. 19 Q Was that sludge as well mat was taken out 20 Q Are you aware of that? 20 there? 21 A Yeah. But it was buried in different places 21 A Yet. 22 around here. * 22 Q Was there a period of time, as you 23 Q Where else was waste product buried around 23 understand it, that all of the sludge that was 24 ' the » - 24 generated at the plant was disposed of on the Lock 25 A Where I know for a fact it was? 25 Haven site? p~ 58 60 w\ Q Yes, 1 MR. WALKER: Objection. 2 A Right where K-Mart is over here. That used 2 BY MR. ABDALLA: 3 to be Hoberman's Junkyard. Camekx Estate, and over in 3 Q You can answer. 4 the hollow, over Lockport. 4 A Well, I knew mat sludge was being buried 5 Q When did they dispose of waste product at 5 there, but it was also hauled out because they was 6 the K-Mart area? 6 running out of space, I guess, out here. 7 A That was when Hoberman's sold their 7 Q Was there a period of time when everything. 8 junkyard. They used to have a pit in there, and they 8 as you understood it, was being disposed of right on 9 hauled some of the stuff over and filled the pit up. 9 the landfill site - the Lock Haven site? 10 MR. WALKER: Objection. Move to strike. 10 MR. WALKER: Objection. 11 BY MR. ABDALLA: 11 A What was that? I didn't quite - 12 Q Do you know approximately when that was? 12 BY MR- ABDALLA: " 13 A A year? No. 13 Q You indicated mat some of the stuff was 14 Q Was it in the Ws. '70's? 14 hauled out 15 A Probably the later part of *60's. 15 A Right 16 Q Do you know what they took over to that 16 Q I'm just trying fir! figure out, was there a 17 K-Mart?. 17 period of time where everything was disposed of, all of 18 A No, I don't. Afl I know it was sludge, and 18 the sludge was disposed of on the Lock Haven site? 19 I think some of the iron or stuff that was taken out of 19 MR. WALKER: Objection. 20 some of the buildings was hauled there, too. 20 A Yes. 21 MR. WALKER: Are we saying K-Mart? 21 BY MR. ABDALLA: » THE WITNESS: Yeah, h used to be over at 22 Q And how long was mat period of time? Clinton Plaza. That used to be a junk area in there. 23 A From the *50's up until the *60's, when they BY MR. ABDALLA: 24 started hauling out 25 Q How about it the Camek* Estate area; do you 25 Q So it would have been sometime in the '60's SCRUNCH™ •« >> A • <* ~ . - Pages 57 - 60 MARY HILLABRAND INC., (415) 788-5350 FAX (415) 788-0657 AR3196I7 15 APPENDIX F

AR319618 Or INCORPORATION TO THB oerAaTMffwr or STATE* *3-1 -^18 OS *" COMMONWEALTH 0*>————---.-«- «J I ** • In eomf&aac* wftli tj»* r*jairen«atj of t|» "BUSWESS CORPORATION LAW," (Act Ho. 10«>( •pprw*d Uw Mh d*r

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2nd. Th* fccaUon and poet oflca *ddrew of its Initial rex^tered office fa thi* Comraoiiw«*Jth It ____.lOl.__^.__,^.:.^_. J;*5*J. 3trq?,fe.,...— - r^°c^ gav??______Clinton < "i T * fiii lii"'"" " fafcrl " ' ~' y> """ 8ra.* Th-- « ptupove or ptltpeoe* of &• cerpofvnon «r«i To manuf Actur«f btiy, sellv i;- ''^S rsfine, import, export and generally deal In and us« alkalies, acids, dye stuffs, solvents, chemicals, chemical products and by-products thereof of every kind, nature and description, allied products and compounds and also xiixjcxBS*jui**jqc apparatus and implements ftKbcfekfezgc ^XxiUtsr^±J&K7;uc±aii*;caxj^atxjx33tXK*£^ jxxrin^KtijDXkJ^x>3txlnxtt«^au3xs£JUC>aK«:^ to act a? commission merchants, brokers and distributors e-f the above items and generally to do all things of « similar and cognate character.

4th. Th« term of it*

5th. Th* »moant of p«W in capital with whfch th« oorpormtJon irilT begin bo«in*w i< 310^000 .CO, In cash.

MA/-TI987 Ttnn of A. T* Kllidc-nk 215 - Sth Street, too^c Haven, P*. 1 f—* ( Klwyn 7i Blajichard 9 TT« Church Street, Loo It Haven, Pa< John R. Turner 103 Pearl Street, tock K&venr Pa. 1 year ^ A. D. Patterson 421 vi, t:ain Strcec, Loclc Haven, Pa* Thonas X* Caprlo 119 pearl Street, Lock Haven, Pa. T. V- Weld 160 Suaquehanne Avenue, Lock Karen* Pa- Donald C, "/'eloh 437 W. Church Stroet, took Haven, pa. Morris Kl«»»na 108 7/. Church Streot, Loe« Haven, Pa. .- rf-« -n :iob*rman • 72 £. Church 3treetf took Haven, Pa. 1 year Ui i.

Sth. Th* name* tad addreMe* of tha b&cofporaton and the mnntxr «jd cU« of ahsrsa iub»eribed •eh AM: Addits* No. and Clu« of A.. T. Kiladonk • Same as above 5O - Coranon Elvyn ff. Blaneaard n • . . 50 - Consnon John H. Turner.. " " 50 * Cocaaon A- D. Pattarsoa - * SO - Common Thor.aa n. Caprio . " . 50 - Conson T. V. ™frld . ' 50 - Corrrton Donald C. Welch v " -SO - Cormon ;.;orrl3 Klc--ana tt SO - Connon Habennitn ^ " SO - Contnon

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mvv , _ a notary Public £• tnd f or tb* moaty Elirja th« d,, Johp.n*., yur»?.?j^.»^.P' Pat^eraon, :. Caprio, T. V» 7/eld, C. v;«lch, Worrla Klev/ans, and S£ Hoberaan* who, tn da* fonti of law, adcaowledcvd th« foncoinc butrtnaoat to be th«ir act ud d«t

ay h*a^ aad Mai of «0e« the 3?E£__ day of. jT*"««T*.___,» A. D.

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A. n. •i^ HR319620 APPENDIX G

AR3I962 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION m 341 Chestnut Building Philadelphia, Pennsylvania 19107

SUBJECT: Drum Sites in Lockhaven, DATE: Pennsylvania FROM: John A. Am(ste£ Ombudsman TO: Robert J. Martin, Director Ombudsman Office

This letter is in response to your request that I investigate the circumstances relating to three drum sites you observed on a property in Lockhaven, Pennsylvania during your visit to the Drake Chemical Superfund site in February 1997.

On Monday, March 3, 1997,1 contacted Mr. Dick Biddle, Regional Solid Waste Manager for the Pennsylvania Department of Environmental Protection (PADEP), Williamsport Office, who is currently active at the Lockhaven property in question. Mr. Biddle informed me that the property is located near the Piper Aircraft facility owned by Monroe Farms, and that preliminary assessments were performed at the drum sites in the 1980's by PADEP, and again in 1993/94 by EPA Region HL Based on the preliminary assessments both the State and EPA concluded that no further action at the sites was necessary (i.e., that the sites posed no hazards to the community). Mr. Biddle indicated that the waste at the sites was generated by the American Color and Chemical Company (AC&Q as a result of their efforts to clean up several large sludge impoundments owned by the company. The waste from the sludge impoundments was treated and then deposited in the trenches on the subject property; the trenches were then covered with soil. According to Mr, Biddie, the company undertook this effort with PADEP approval. At the time, the company requested formal approval from PADEP to excavate the trenches and to utilize them for disposal of the sludge waste.

Mr, Biddle is currently working with a retired AC&C employee who worked at the company during the time of the trench disposal activity, and who is now acting as a consultant to the company. The former employee claims that only sludge waste was put into the trenches at that time and that he knows nothing about drums having been disposed of in the trenches. PADEP has no record of approving the disposal of drums into the trenches by AC&C.

Mr. Biddle's most recent visit to the property was made on Tuesday, February 25r 1997 - at which time, he walked the entire perimeter of the property and observed that there are now only the remnants of a total of nine drums at the three sites, and that they are empty. He

Celebrating 25 Years of Environmental Progress « D o i o c o o A n oIybe £ indicated that the drums had plastic liners, but that the liners are now corroded. He stated that the drums obviously contained chemicals at one time.

Mr, Biddle is scheduled to go back to the property within the next couple of weeks, to "flag" the areas where the drums are located and to run a magnetometer over the entire property to'see if any more drums can be located. Once he completes this activity, Mr. Biddle, in conjunction with AC&C personnel, will determine whether or not any further action is necessary at the drum sites.

At this time, it is Mr. Biddle's determination that the site poses no hazards to the community. He indicated that there are no homes located down-gradient of the drum sites and that none of the homes in the area are in the groundwater flow pattern of the site. He further indicated that there are large fields between the drum sites and the homes, and between the drum sites and any water bodies in the area. I hope that the above information is helpful to you in your efforts to assist the Lockhaven community. If there is any further assistance I can give you related to this situation, please contact me by phone at (215) 566-3127. I will continue to monitor the situation at the drum sites. If I learn of any new information, I will provide.it to you. cc: T. Voltaggio G. Crystail

AR3I9623 APPENDIX H

SR319621* r* C

COMMONWEALTH OF PENNSYLVANIA

SUBJECT: Drake Chemical Company Lock Haven, Clinton County

File Thru: Richard L.BIttle Regional Solid Waste Manager

Thomas Showman Solid Waste Specialist Williamsport Regional Office

The investigation"at Drake Chemical Company 1s now being delayed awaiting the outcome of EPA's criminal Investigation. Mr. Dion of Drake Chemical Company stated at the meeting February 17, 1981, that Cecos of New York was going to survey and estimate cost of cleanup at the Drake plant site. Mr. Dion called this office on February 23, 1981 and said he would meet with Cecos February 25, 1981 and work out a time schedule for the cleanup. I received a telephone message from EPA regarding an air photo of Drake Chemical in Lock Haven. This photo revealed a possible buried dump site adjacent to the Drake property. A search of courthouse files reveals that Hoberman Salvage Company and United Real Estate Development Association own this property. Yener Soylemez of EPA was contacted, and this information was passed on to him. The investigation will continue as soon as EPA notifies me that their investigation Is complete. Mr. Dion supposedly will supply us with a time schedule of cleanup. The FIT'S team, a contractor from EPA, will be conducting a groundwater sampling study at Drake. EPA has instructed the FIT'S team to contact me prior to beginning their sampling program to coordinate where best to sample.

TS/bls cc: Bureau of Solid Waste Management Mr. Bertovic-vh

flR3!9625 143 Railroad 17 Recreational 21 Agricultural 41 Deciduous Forest 51 Streams and Waterways 75 Barren Land (Disturbed) 76 Transitional

HISTORICAL PHOTOGRAPHY 1951 tittle activity is **-narent within Drake Chemical at this time* ' Most of the site remains unchanged from its natural conditions. Vege- tation along the dry stream bed and the small lagoon (or pond) on the northern end of the site appears to be growing vigorously, with no signs of vegetation stress. Two structures (A, B) appear at the extreme northern end of the site. It is unclear whether the buildings are serviced by the railroad spur running directly behind them. The roads shown on the' overlay are th« primary access routes for vehicles in the Drake Chemical site. The large dark area adjacent to the larger structure (A) provides the only evidence that any sort of activity is occurring within the site, It appears as though this is an area in which the vegetation has been stripped away. This is probably the result of vehicular activity. •1959 Substantial changes have occurred at Drake Chemical since 1951. The most obvious of these changes involves the size of the structures on site. , The larger of the two buildings (A) has been expanded by the addition of a new structure (Af) situated to the south of the original building-. Two tanks located beside the smaller 'building (B) have also added to the site. . Disturbed and possible fill areas also appear in 1959. The area immediately south of the structures shows signs of this type of activity. Substantial changes in drainage are visible. A second crescent- shaped lagoon now occupies what used to be the dry stream bed- This new lagoon may have been created by the dike or dam-like road bed for the n«w rail line leading into American Color and Chemical. The lagoon, seen previously in 1951 imagery, remains relatively unchanged. ' Additional potential problems that should be noted are the two refuse operations just north of Drake Chemical. One of these appears to be an auto/junk operation containing large piles of unknown materials. The other unidentified operation (to the east) contains two large excavations that may indicate possible burial activity. •1963 Extensive expansion (since 1959) of the lagoons found within Drake Chemical are clearly visible. Lagoons now cover nearly all of the siter AR3I9626 th* e*e*ption of thAt portion Where "structures hove always been ated. OcAiftA^o «w«y frota the, site is quite evident, and easily r*cv«blo southward to fcald Eagle Creek. Tfco addition of a new structure (C) to the site is also evident. This building lies just south of structure A/A' and appears white in the photograph. Its function is unknovm. The area around structure C is noteworthy; the area appears disturbed in the imagery and may contain scattered debris. The auto/junk operation and^ the neighboring facility still appear as potentially hazardous areas. "Large piles of materialsr excavations and areas of dumping are visible, 1968 Substantial changes have occurred in and around the lagoons at the Drake chemicaj. site* Fill operations have.decreased the size of the lagoons seen in 1963. One of these fill areas (south of building C), appears to contain scattered barrels.' Some lagoons now show signs of being divided into smaller,, individual units. A primitive network of revetments or dikes can be seen in the northern end of the site. Numerous new additions and even, possible new structures have been added* Buildings A and C appear to have undergone additional expansion, A new structure .(D) appears to have been erected next to building B. Approximately four or five horizontal tanks can be seen among the ^WuGildings. One concentration of tanks appears north of building B, beside the spur track right-of-way. It now appears, that the spar track has been removed or abandoned* The salvage yard lying east of the auto/junk operation continues to show evidence of burial or fill activity. I»axge amounts of refuse, debris and piled materials suggest substantial dumping of materials is occurring. The auto/junk operation also appears to exhibit possible drum concentrations. This cannot be verified due to photo-resolution factors. . CURRENT PHOTOGRAPHY "———— -1980 Recent color infrared photography shows that large-scale changes in the physical appearance of Drake Chemical have occurred since 1968. The most striking change to the site is the disappearance of the large lagoons that once covered most of the area. These have been filled sometime in the past eleven years and replaced by two relatively small, rec- tangular lagoons (1 and 2). These lagoons are both .12 acres in size. A third, dry lagoon (.37 acres), appears just south of lagoons 1 and 2. This third lagoon roay be a relatively new feature to the site. Another feature type indistinguishable on the historical black and imagery are the drum and/or barrel concentrations. Possible loca-* ns of drums within Drake Chemical were noted-in 1968, but only the photography provides information confirming their presence* targe ----- ...... 3 ...... _ ' .. AR3I9627 APPENDIX I

SR3I9628 -From: CHARLIE KLEEMAN - - -...... To: ARMSTEAD-JOHN Date: 4/18/97 10:05am Subject: EPA/State Removal Coordination

John, _ ,

Per the request from Bob Martin, you asked for a citation concerning our protocol of allowing a State to take responsibility for an emergency response.

By way of background, you should understand that it has always been our operational policy to give notice to the appropriate state agency both for their information and to provide them the first opportunity to carry out a response. This has been done respecting State program responsibilities and recognizing State's abilities to respond in a timely .fashion to incidents that are closer to their own response personnel.

While there are several references made to roles of states in the NCP, the following are possibly the most relevant to this question:

(1) NCP Subpart E at 300.415 (b)(2) lists the factors to be considered in determining whether a removal action is appropriate. Factor (vii) is the availability of other appropriate federal or state response mechanisms to respond to the release. These are the factors that must be addressed in any action memorandum, special bulletin, or endangerment determination before a removal action can be taken. It is clearly contemplated by the NCP that EPA should consider what the State's role is and what the State's capabilities are in determining whether to authorize a federal response.

(2) NCP Subpart F at 300.500 et al says that EPA shall ensure meaningful and substantial state involvement in hazardous substance response... shall provide an opportunity for state participation in removal, etc... ' *

•Among the many things included under state participation is EPA giving states the opportunity to carry out their own responses at sites. '

I am certain that a more exhaustive discussion could be generated, particularly with assistance- from the Office-of Regional Counsel, depending upon how deeply one needed to pursue the question. "

CC: . . CARNEY-DENNIS, DCWIC01.DCWCPO2.MARTIN-ROBERT

AR3I9629 e

APPENDIX J

SR3I9630 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY \ • REGION 111 | 841 Chestnut Building Philadelphia, Pennsylvania 19107-4431 August 7, 1996 TO: The Drake Chemical Superfund Site File FROM: Frank Vavra, Remedial Project Manager Hazardous Waste Management Division (3HW22) THRU; - Thomas C.- Voltaggio, Director Hazardous Waste Management Division (3HWOQ) -SUBJECT: RCRA Dioxin Listed 'Wastes Will Not Be Treated In The Drake Chemical Superfund Site Incinerator

INTRODUCTION ' . • The Region has received comments from the public and the plaintiffs in the Federal court proceedings in Williamsport, PA ~r (Clinton County Commissioners; and Arrest the Incinerator - . f Remediation, Inc.. vs. United States Environmental Protection Agency et al. No. 4 : 96-CV-00181 (M.D. Pa. complaint filed 2/1/96) :- that the incinerator at the Drake Chemical Superfund Site { "Drake Site" or "Site") must treat the orgahics in the waste feed to a destruction and removal efficiency (DRE) of 99.9999%. The Region had previously determined, in 1993, when it was developing the specifications for the incinerator to be used to treat ,. approximately 200,000 cubic yards of soil at the Site, that RCRA dioxin listed wastes were not produced or disposed at the Site and, therefore, 99.9999% DRE is not required. Because of the public comments and because of the public's interest in the issue of whether or not the Drake facility is a "dioxin site8, I was assigned to investigate into the issue. Set forth below is an analysis of the regulatory background of this issue/ the comments received by the Agency on this issue, the responses to the comments, and the results of this investigation. The conclusion of the investigation is that 99.9999% DRE is not required'.

REGULATORY BACKGROUND CERCLA response actions; must comply with the substantative requirements of the .Resource Conservation and Recovery Act of 1976, as amended Lby .the Solid Waste Disposal Act Amendments of 1980 and the Hazardous Waste Amendments of 1984 r 42 U.S.C. §§ 6901-6991i ("RCRA"} if the CERCLA -response action constitutes treatment, storage, transport, or disposal of a RCRA hazardous waste. The incineration of the soils at the Drake Superfund Site constitutes a "treatment" of vthe soils. Hence, the "Drake incinerator is subject to the relevant substantive provisions of

Celebrating 25 Years of Environmental Progress ' 319631 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION III 841 Chestnut Building Philadelphia, Pennsylvania 19107-4431

August 7, 1996 TO: The Drake Chemical Superfund Site File FROM: Frank Vavra, Remedial Project Manager Hazardous Waste Management Division (3HW22) THRU: Thomas C. Voltaggio, Director Hazardous Waste Management Division (3HWOO) SUBJECT: RCRA Dioxin Listed Wastes Will Not"Be Treated In The Drake Chemical Superfund Site Incinerator

INTRODUCTION The Region has received comments from the public and the plaintiffs in the Federal court proceedings in Williamsport, PA r (Clinton County Commissioners; and Arrest the Incinerator . ' Remediation, Inc., vs. United States Environmental Protection Aaencv et ml. No. 4:96-CV-00181 (M.D. Pa. complaint filed 2/1/96) '- that the incinerator at the Drake Chemical Superfund Site ("Drake Site" or "Site") must treat the organics in the waste feed to a destruction and removal efficiency (DRE) of 99.9999%. The Region had previously determined, in 1993, when it was developing the specifications for the incinerator to be used to treat approximately 200,000 cubic yards of soil at the Site, that RCRA dioxin listed wastes were not produced or disposed at the Site and, therefore, 99.9999% DRE is not required. Because of the public comments and because of the public's interest in the issue of whether or not the Drake facility is a "dioxin site", I was assigned to investigate into the issue. Set forth below is an analysis of the regulatory background of this issue, the comments received by the Agency on this issue, the responses to the comments, and the results of this investigation. The- conclusion of the investigation is that 99.9999% DRE is not required.

REGULATORY BACKGROUND CERCLA response actions; must comply with the substantative requirements of the Resource Conservation and Recovery Act of 1976, as amended .by the Solid Waste Disposal Act Amendments of 1980 and the Hazardous Waste Amendments of 1984, 42 U.S.C. §§ 6901-6991i ("RCRA") if the CERCLA response action constitutes treatment, storage, transport, or disposal of a RCRA hazardous • waste. The incineration of the soils at the Drake Superfund Site • constitutes a "treatment" of the soils. Hence, the Drake incinerator is subject to the relevant substantive provisions of

Celebrating 25 Years of Environmental Progress AR3I9632 EPA's and Pennsylvania's RCRA incinerator regulations. Generally, an incinerator burning hazardous waste must be designed, .constructed, and maintained so that, when operated in accordance with the operating requirements, specified under 40 C.F.R. §264.345, it will achieve a destruction and removal efficiency (DRE) of 99,99% for each principal organic hazardous constituent (POHC) in its waste feed. 40 C.F.R. Section 264.343(a)(1). An incinerator burning'certain RCRA "listed" wastes, however, must achieve, a DRE of 99.9999%. 40 C.F.R. Section 264.343 (a) (2) . These RCRA lis.ted wastes (listed at 40 C.F;R. Section 261.31(a) which require the higher DRE are: F020 - Wastes from production., manufacturing use, or as an intermediate in manufacturing of more complex chemicals of trichlorophenol or tetrachlorophenol. F021 - Wastes from production, manufacturing use, or as an intermediate in manufacturing of more complex chemicals of pentachlorophenol. F022 - Wastes from manufacturing use of tetra, penta, .or ; hexachlorobenzenes under alkaline conditions. F023. - Wastes from contaminated equipment; used in the process that generated F020. F026 - Wastes from contaminated equipment used in the process that produced F022. F027 - Discarded unused formulations containing tri-, tetra-, or pentachlorophenol. Discarded 2,4,5-trichlorophenoxyacetic acid and 2,4/5-tricholorphenoxypropanoic acid ("Silvex") are considered F027 wastes. . ' The Preamble to the National Contingency Plan, 55 Fed-. Reg. 8666, 8758 (March 8, 1990J and EPA guidance recommend that Superfund site.managers use reasonable efforts to determine whether a substance is a RCRA listed hazardous waste. Reasonable efforts include evaluating specific information about a waste's source, prior use, labels, manifests, facility business records or production processes used at the facility. Determining When Land Disposal Restrictions (i*DRs* Are Applicable to CERCLA Response Actions, Office of Solid Waste and Emergency Response, Directive 937.3-05FS. July 1989. . The Region evaluated information from the EPA Drake Chemical site files at the time that the bid specifications for the incinerator were written, to determine whether or not RCRA dioxin listed wastes are to be treated at the Drake Site. Based on the information available to EPA at that time, the Agency determined that the above described RCRA dioxin listed wastes are not

Celebrating 25 Years of Environmental Progress AB3I9633 EPA's and Pennsylvania's RCRA incinerator regulations. Generally, an incinerator burning hazardous waste.,must be designed, constructed, and maintained so that, when operated in accordance with the operating requirements specified under 40 C.F.R. §264.345, it will achieve a destruction and removal efficiency (DRE) of 99.99% for each principal organic hazardous constituent (POHC) in its waste feed, 40 C.F.R. Section 264.343(a)(1). An incinerator burning certain RCRA "listed" wastes, however, must achieve a DRE of 99.9999%. 40 C.F.R. Section 264.343(a)(2). These RCRA listed wastes (listed at 40 C.F.R. Section 261.31(a) which require the higher DRE are: F020 - Wastes from'product ion., manufacturing use, or as an intermediate in manufacturing of more complex chemicals of trichlorophenol or tetrachlorophenol. F021 - Wastes from production, manufacturing use, or as an intermediate in manufacturing of more complex chemicals of ' pentachlorophenol. F022 - Wastes from manufacturing use of tetra, penta,-or hexachlorobenzenes under alkaline conditions. F023. - Wastes from contaminated equipment used in the process that generated F020. F026 - Wastes from contaminated equipment used in the process that produced F022. F027 - Discarded unused formulations containing tri-, tetra-, or pentachlorophenol. piscarded 2,4,5-trichlorophenoxyacetic acid and 2,4,5-tricholorphenoxypropanoic acid {"Siivex") are considered F027 wastes, . The Preamble-to the National Contingency Plan, 55 Fed, Reg. 8666, 8758 (March 8, 1990) and EPA guidance recommend that Superfund site managers use reasonable efforts to determine whether a substance is' a RCRA listed hazardous waste* Reasonable efforts include evaluating specific information about a waste's source, prior use,.labels, manifests, facility business records or production processes used at the facility. Determining when Land Disposal Restrictions (LDRs) Are Applicable to CERCLA Response Actions, Office of Solid Waste.and Emergency Response. Directive 937,3-QSFS, July 1989. The Region evaluated information from the EPA Drake Chemical site files at the time that the bid specifications for the incinerator were written, to determine whether or not RCRA'dioxin listed wastes are to be treated at the Drake Site. Based on the information available to EPA at that time, the Agency determined that the above described RCRA dioxin listed wastes are not

Celebrating 25 Years of Environmental Progress present at Drake and will not be treated in the incinerator.

REVISITING THE ISSUE OF WHETHER RCRA LISTED HAZARDOUS WASTES WILI/ BE TREATED IN THE DRAKE INCINERATOR

After "the March, 1996 injunction hearing in Federal court, I was assigned by the Region's Hazardous. Waste Management Division to investigate whether or not the Agency's._prior determination was correct (particularly with respect to allegations raised by the plaintiffs and the public). I reviewed.Drake Chemical Company records, the Drake Chemical Company RCRA Part A Permit, and EPA's Drake Chemical Site files to determine if any of the RCRA dioxin listed wastes cited by the plaintiffs and -the public are present at the Drake Site. . •_.',• * The Drake Chemical Company records that I reviewed were the records from the Drake Chemical Company that had been in the custody of litigants in a state toxic tort litigation, in Clinton, County, .PA. These documents include product lists, purchase orders, product and shipping records, and production logs. They . are currently located in a storage facility in Sharon Hill, PA. These documents were produced to the plaintiffs in the Federal lawsuit. I also interviewed EPA's civil investigator who was familiar with the Drake Chemical re'cords due to his involvement with the cost recovery case for the Site. Relevant .documents that are not already part ,of the Administrative Record are attached to this memo. As a result of this investigation into the Drake Chemical Company records, it is my -conclusion that EPA has correctly determined that no RCRA dioxin listed wastes will be treated in the incinerator.' .

RESPONSES TO SPECIFIC COMMENTS ...... ;. Plaintiffs in the federal lawsuit and other commentors have stated that there are certain RCRA listed hazardous wastes requiring a DRE of 99.9999% at the Drake Site. Set forth below are the comments received concerning this issue and ray responses: 1) Site records indicate that, trichlorophenol was manufactured at the Drake Site. - Response: I reviewed Drake Chemical Company business records and records pertaining to facility processes. No records were found suggesting production, manufacturing use, or disposal of . trichlorophenol at the Drake Site. Additionally, Drake Chemical Company documents which list the products produced at Drake did

Celebrating 25 Years of Environmental Progress • ; -— ; - 1VR3J9635 3 present at Drake and will not be treated in the incinerator.

REVISITING THE ISSUE OF WHETHER RCRA LISTED HAZARDOUS WASTES WILL BE TREATED IN THE DRAKE INCINERATOR

After the March, 1996 injunction hearing,in Federal court, I was assigned by the Region's Hazardous Waste Management Division to investigate whether or not the Agency's prior determination was correct (particularly with respect to allegations raised by the plaintiffs and the public). I reviewed Drake Chemical Company records, the Drake Chemical Company RCRA Part A Permit, and EPA's Drake Chemical Site files to determine if any of the RCRA dioxin listed wastes cited by the plaintiffs and the public are present at the Drake -Site. The Drake Chemical Company records that I reviewed were the records from the Drake Chemical Company that had been in the custody of litigants in a state toxic tort litigation in Clinton, County, PA, These documents include product lists, purchase orderst product and shipping records, and production logs. They are currently located in a storage facility in Sharon Hill, PA. These documents were produced to the plaintiffs in the Federal lawsuit. I also interviewed EPA's civil investigator who was familiar with the Drake Chemical records due to his involvement with the cost recovery case for the Site. Relevant-.documents that are not already part of the Administrative Record are attached to this memo. As a result of this investigation into the Drake Chemical Company records, it is my conclusion that EPA has correctly determined that no RCRA dioxin listed wastes will be treated in the incinerator.

RESPONSES TO SPECIFIC COMMENTS Plaintiffs in the federal lawsuit and other commentors have stated that there are certain RCRA listed hazardous wastes requiring a DRE of 99.9999% at the Drake Site. Set forth below are the comments received concerning, this issue and ray responses; 1) Site records indicate that trichlorophenol was manufactured at the Drake Site. . - - . - Response: I reviewed Drake Chemical Company business records and records pertaining to facility processes. No records were found suggesting production, manufacturing use, or disposal of trichlorophenol at the Drake Site. Additionally, Drake Chemical Company documents which list the products produced at Drake did

Celebrating 25 Years of Environmental Progress • ..- SR3I9636 not show trichlorophenol as a product. Some of these documents were to promote the company's product line. Therefore, it would have been in. the company^s interest to. identify all of its products to its customers and potential customers. Also no process records or invoices were found which indicated production or purchasing of.amounts of trichlorophenol for manufacturing purposes at the Drake -facility. Production of trichlorophenol would probably not have been economical for a specialty chemical producer such as Drake. Generally, a commodity chemical such as trichlorophenol would be produced in bulk_ at a large plant dedicated to the production of chlorophenols for such uses aa woodtreating and antiseptics. Therefore, as a result of my investigation I believe it is ', ' reasonable to determine that trichlorophenol was not produced, used in manufacturing or disposed of at the Drake Site. 2) 2,4-dichlorophenoxyacetic acid (2,4-D) and 2,4,5- trichlorophenoxyacetic acid (2,4,5-T) herbicides were manufactured at the site. . ^ , Response: This information, if correct, could give rise to a I finding that an F020 or F027 listed waste is present at the Site. J This issue was raised at the preliminary' injunction hearing and concerns the chemical name of "Fenac", which was an herbicide produced at the Drake Site. Fenac is a mixture of structural ispmers (same chemical>formula - different chemical structure). About 70% of the .isomers are the active ingredient in Fenac which is 2,3,6-trichlorophenylacetic acid. Other isomers such as 2,4,5- trichlorophenylacetic acid are also present. In the stenographic transcript of the preliminary injunction hearing, plaintiffs' witness, Mr. Furl, a former employee at the .Drake Chemical Company, testified that the herbicide, Fenac, which was produced at the facility, is 2,4,5- , ' . trichlorophenolacetic acid. Mr." Furl was incorrect. Fenac is 2.3,6-trichlorophenvlacetic acid. Fenac also contains other isomers such as 2.4, S-trichlorophenvlacetic acid. However, it is not 2,4.5-trichlorophenolacetic acid. What is important to this issue is that. Fenac belongs to the "phenyl" compounds, and as such, it is not associated with the "phenol" F027 listed wastes, or the generation of dioxin. Fenac is an herbicide which is chemically classified as a substituted benzene or phenyl compound! The terms phenol and phenyl- are similar, but there is an important; difference between them in terms of the listed w^ste issue. What the word, phenyl means in terms of"its chemical structure is that there are chemical constituents attached to a benzene ring. However, in. the case of Fenac, none of the chemical constituents directly attached to the benzene ring is an oxygen atom. Therefore,

Celebrating 25 Years of Environmental Progress •-•"•'AR3I9637 not show trichlorophenol as a product. Some of these documents were to promote the company's-product line. Therefore, 'it would have been in the company's interest to identify all of its products to its customers and potential customers. Also no process records or invoices were found which indicated production or purchasing of amounts of trichlorophenol for manufacturing purposes at the Drake facility. Production of trichlorophenol would probably not have been economical for a specialty chemical producer such as Drake. Generally, a commodity chemical such as trichlorophenol would be produced in bulk at a large plant dedicated to the production of chlorophenols for such uses as woodtreating and antiseptics. Therefore, as a result of my investigation I believe it is reasonable to determine that trichlorophenol was not produced, used .in manufacturing or disposed of at the Drake Site. 2} 2,4-dichlorophenoxyacetic acid (2,4-D) and 2,4,5- trichlorophenoxyacetic acid (2,4,5-T) herbicides were manufactured at .the site.- > Response: This information, if correct, could give rise to a [ • finding that an F020 or F027 listed waste is present at the Site. • This issue was raised at the preliminary injunction hearing and concerns the chemical name of ,u Fenac*, which was an herbicide produced at the Drake Site. Fenac is a mixture of structural isomers (same chemical formula - different chemical structure). About 70% of the isomers are the active ingredient in Fenac which is 2,3,6-trichlorophenyl'acetic acid. Other isomers such as 2,4,5- trichlorophenylacetic acid are also present. In the stenographic transcript of the preliminary injunction hearing, plaintiffs' witness, Mr. Furl, a former employee at the Drake Chemical Company, testified that the herbicide, Fenac, which was produced at the facility, . is 2,4,5- trichlorophenolacetic acid. Mr. Furl was incorrect. Fenac is 2,3 > 6-trichlorophenvlacetic acid. Fenac also contains other isomers such, as 2.4.S-trichlorophenvlacetic acid/However, it is not 2,4.5-trichlorophenQlaceEic acid. What is important to this issue is that- Fenac belongs to the "phenyl" compounds, and as such, it is not associated with the "phenol" F027 listed wastes, or the generation of dioxin. Fenac is an herbicide which is chemically classified as a substituted benzene or phenyl compound- The terms phenol and phenyl* are similar, but there is an important difference between them in terms of the listed wa,ste issue. • What the word.phenyl means in terms of its chemical structure is that there are chemical constituents attached to a benzene ring. However, in the case of Fenac, none of the chemical constituents directly attached to the benzene ring is an oxygen atom. Therefore,

Celebrating 25 Years of Environmental Progress BR3I9638 dioxin formation is not normally associated with this class of chemicals. Fenac is listed in .a 1980 EPA document, "Dioxin," as a pesticide that is not directly associated with dioxin formation, but might form dioxin under irregular operating conditions. Dioxin formation from Fenac is speculative, and neither Fenac nor its constituents are among the RCRA listed wastes for which the 6-9s__DRE is^required. In addition, in light of .the pervasive presence of Fenac in soil samples across the Site, and the •- fact that dioxin: _sampling showed no dioxin in the soils (see attached report from Roy F. Weston, 6/25/96}, it appears unlikely that the production of Fenac at the Drake facility led to the formation of^appreciable amounts of dioxin, if any, . ...:...:. The chlorinated phenols in the F020 and F027 listings contain the phenol functional group. This is expressed in chemical shorthand as (-OH) . A "phenol has an oxygen atom directly attached to a benzene ring, and a hydrogen atom is attached to the oxygen atom as [ (benzene)-OH]. The F027 listing also incl.vies compounds derived from-the'above mentioned chlorinated phenols. The compounds typically in this group are known as phenoxy compounds [ (benzene)-OX] . A phenoxy compound is similar to a phenol compound except that the hydrogen atom in the phenol functional group has been replaced by some other group of atoms. Examples of phenoxy compounds are 2,4- dichloro-phenoxyacetic acid (2,4-D) and 2,4,5- trichlorophenoxyacetic acid (2,4,5-T), which are associated with the formation of~dioxin.^ — - - - -- . i . No Drake Chemical Company process records were found suggesting production of 2,4-dichlorophenoxyacetic acid or 2,4,5--, trichlorophenoxyacetic acid at the Drake Site. Additionally, Drake Chemical documents which list the products produced at Drake do not show either of these herbicides as. a product. Alsq, no invoices were found showing significant amounts of. these herbicides at the facility. Therefore, it is unlikely that significant amounts of these herbicides were disposed of at the site. Some small amounts of 2,4-D were shown_in Drake Chemical Company Records? however-, 2,4-D is not a listed waste and was found in quantities too small to suggest its production. No amounts of 2,4,5-T were .found in the Company records. In addition, while some trace quantities of 2,4-D and 2,4,5-T were detected in some of the contents of drums and tanks removed for off-site disposal, those quantities were too small to suggest wastes from production or manufacturing-use of these chemicals.

3) 2-4-5-trichlorphenoxypropanoic acid ("Silvex"} . was found in some samples of waste in drums. Response; Silvex, an herbicide,.was found at low concentrations r • Celebrating 25 Years of Environmental Progress AR3I9639 dioxin formation is not normally associated with this class of chemicals. Fenac is listed in a 1930 EPA document, "Dioxin," as a pesticide that is not directly associated with dioxin formation, but might form dioxin under irregular operating conditions. Dioxin formation from Fenac is speculative, and neither Fenac nor its constituents are among the RCRA listed wastes for which the 6-9s DRE is required. In addition, in light of the pervasive presence of Fenac in soil samples across the Site, and the fact that dioxin sampling showed no dioxin in the soils (see attached report from Roy F. Weston, 6/25/96), it appears unlikely that the production of Fenac at the Drake facility led to the formation of appreciable amounts.of dioxin, if any. The chlorinated phenols in the F020 and F027 listings contain the phenol functional group. This is expressed in chemical shorthand as (-OH) . A phenol has an oxygen atom directly attached to a benzene ring, and a hydrogen atom is attached to the oxygen atom as [ (benzene)-OH] . ' • The F027 listing also inclvies compounds derived from the above mentioned chlorinated phenols. The compounds typically in this : group are known as phenoxy compounds [ (benzene)-OX]. A phenoxy ; compound is similar to a phenol compound except that the hydrogen - atom in the phenol functional group has been replaced by some other group of atoms. Examples of phenoxy compounds are 2,4- dichloro-phenoxyacetic acid (2,4-D) and 2,4,5- trichlorophenoxyacetic acid (2,4,5-T), which are associated with the formation of dioxin. ' , No Drake Chemical Company process records were found suggesting production of 2,4-dichlorophenoxyacetic acid or 2,4,5-- trichlorophenoxyacetic acid at the Drake Site. Additionally, Drake Chemical documents which list the products produced at Drake do not show either of these herbicides as a product. Also, no invoices were found showing significant amounts of. these herbicides at the facility- Therefore, it is unlikely that significant amounts of these herbicides were disposed of at the site. Some small amounts of 2,4-D were shown in Drake Chemical Company Records? however-, 2,4-D is not a listed waste and was found in 'quantities too small -to suggest its production. No amounts of 2,4,5-T were found in the Company records. In addition, while some trace quantities of 2,4-D and 2,4,5-T were detected in some of the contents of drums and tanks removed for off-site disposal, those quantities were too small to suggest wastes from production or manufacturing use of these chemicals.

3) 2-4-5-trichlorphenoxypropanoic acid ("Silvex") was found in some samples of waste in drums. Response: Silvex, an herbicide, was found at low concentrations

Celebrating 25 Years of Environmental Progress ' ~ ~" AR3I96"1*0 in.some drums of, waste at the site. These buried drums were excavated in 19.95 in preparation for the incinerator's construction and removed from the Site. " A RCRA testing scan showed some low levels of this Silvex in a few drum samples. The presence of Silvex in soils to be treated in the incinerator could have implicated the FQ20 or F027 listings. EPA conducted a .review, of Drake Chemical Company documents to- determine whether or not the Silvex could have originated from a Drake manufacturing process. No process records were found suggesting production or manufacturing use of Silvex at the Drake Site. .Additionally, Drake Chemical Company documents which list the products produced at Drake did not show this herbicide as a product. Also, no invoices were found showing any production, purchase, or shipment of Silvex. Silvex was found only in a limited number of drum samples at low levels and was not detected in any soil samples. Therefore, other than Silvex connected to the drums, it is unlikely that, this herbicide was disposed of at the site. In any event, the wastes from the excavated drums-have been removed from the Site and will not be treated in the incinerator. , ...-_.--- ^

4) Agent Orange was secretly manufactured at Drake for the IJ.S. military's use in Vietnam. Response: Agent Orange was a mixture of 50% each of 2,4-D and 2,4,5-T. As stated in the response to 2) above, a review of the Drake Chemical Company records showed no 2,4-D or 2,4,5-T production, manufacturing use., or disposal at the facility. During EPA's search for potentially responsible parties at the Drake Site, no evidence of a contract between the military and the Drake Chemical Company was found. At the time of the Vietnam war;, there was no reason for "secret" manufacturing of Agent Orange, 2,4-D or 2,4,5-T- • The chemicals in Agent Orange were used domestically as herbicides as well as for defoliation in . Vietnam. . - It appears that this .comment confuses 2,4-D and 2,4,5-T as • 2 . 4-dichlorophenoxvacetic acid and 2,4/5-trichlorophenoxvacetic acid, with 2,4-D and .2,4,5-T as 2,4-dichlorophenylacetic acid and 2.4,5-trichlorophenylacetic acid. The chemical abbreviations have been used to represent either set of chemicals. While wastes from the production of 2.4.5-trichlorophenoxvacetic acid do produce listed wastes which are subject, to RCRA's 99.9999% DRE requirement, EPA has found no evidence that this chemical was produced at the site. 2.4-dichloropfaenvlacetic acid and.2,4,5- trichlorophenvlacetic acid do not produce any of the listed wastes subject to the 99.9999% DRE requirement. Confusion may also have arisen from the production of impure batches of Fenac, which reportedly were orange in color, and which therefore could have been mistaken by a lay person for Agent Orange.

Celebrating 25 Years of Environmental Progress in some drums of waste at the site. These buried drums were excavated in 1995 in preparation for the incinerator's construction and removed from the Site. A. RCRA testing scan showed some low levels of this Silvex in a few drum samples. The presence of Silvex in soils to be treated in the incinerator could have implicated the F020 or F027 listings. EPA conducted a review of Drake Chemical Company documents to determine whether or not the Silvex could have originated from a . Drake manufacturing process. . No process records were found suggesting production or manufacturing Xise of Silvex at the Drake Site. Additionally, Drake Chemical Company documents which list the products produced a't Drake did not show ^this herbicide as a product. Also, no invoices were found showing any production, purchase, or shipment of Silvex. Silvex was found only in a limited number of drum samples at low levels and was not detected in any soil samples. Therefore, other than Silvex connected to the drums, it is unlikely that this herbicide was disposed of at the site. In any event, the wastes from the excavated drums have been removed from the Site and will not be treated in the incinerator. , ' 4) Agent Orange was secretly manufactured at Drake for the U.S. military's use in Vietnam. Response: Agent Orange was a mixture of 50% each of 2,4-D and 2,4,5^T. As stated in the response to 2) above, a review of the Drake Chemical Company records showed no 2,4-D or 2,4,5-T- production, manufacturing use, or disposal at the facility. During EPA's search for potentially responsible parties at the Drake Site, no evidence of a contract between the military and the Drake Chemical Company was found. At the time of the Vietnam war, there was no reason for "secret" manufacturing of Agent Orange, 2,4-D or 2,4,5-T. ' The chemicals in Agent Orange were used domestically as herbicides as well as for defoliation in . Vietnam. . - - • It appears that this comment confuses 2,4-D and 2,4,5-T as 2. 4-dichlorophenoxvacetic acid and 2,4,5-trichloroohenoxvacetic acid, with 2,4-D and 2,4,5-T as 2,4-dichlorophenvlacetic acid and 2,4,5-trichlorophenylacetic acid. The chemical abbreviations have been used to represent either set of chemicals. While wastes from the production of 2.4. S-trichlorophenoxvacetic acid do produce listed wastes which are subject to RCRA's 99.9999% DRE requirement, EPA has found no evidence that this chemical was produced at the site. 2,4-dichloropherivlacetic acid and 2,4,5- trichlorophenvlacetic acid do not produce any of the listed wastes subject to the 99.9999% DRE requirement. Confusion may also have arisen from the production of impure batches of Fenac, which reportedly were orange in color, and which therefore could have been mistaken by a lay person for Agent Orange.

Celebrating 25 Years of Environmental Progress "'AR3I96U2 5) Pentachlorophenol (PCP) was found at higher levels than.Fenac suggesting that pentachlorophenol must have been manufactured or disposed.of at the Site.. . - Response: Wastes from pentachlorophenol are included in the F021 and F027 waste listings, EPA reviewed the Drake Chemical Company's process records and found no indication that pentachlorophenol was produced, used in manufacturing,, or disposed of at the Site. Out of 78 soil samples, only 3 contained detectable levels of pentachlorophenol. Two of the samples were, near the railroad tracks. One of the samples was taken near the center of the site in a former lagoon area. These samples did contain very high levels of pentachlorophenol. These very high detections raised the statistical average of PCP soil concentration above that of Fenac. EPA believes that these three sample concentrations probably were due to the presence of wood at the Site that had been treated with PCP as a wood preserver. This wood preservative may have been from railroad ties or flood ' debris disposed at the site after Hurricane Agnes affected the area in 1972. The infrequent occurrences of PCP in soil samples corroborates, rather than contradicts, a finding based on facility records that PCP was not produced, used in manufacturing, or disposed of at the Site. For example, in • contrast to the 3' detects of PCP, Fenac was found throughout the Site. Of the 43 samples taken in 1987, about 37 detects of Fenac. were found, as would be expected for a product that was manufactured at the Site, 6) Building samples were taken that showed high levels of dioxins. . . ' •" . ' Response: Samples taken from residues within a building at the Drake Site (See the 2/13/84 memo from Hagel to the Drake file) were analyzed by a screening method for dioxin.- This analysis reported the potential presence of high levels of dioxins in the. building. The buildings and materials within them have been removed from the Site and will not be treated in the incinerator. Subsequently, the Region sent those samples for re-analysis, and some additional samples from the lagoon areas for analysis by an appropriate, approved analytical method for dioxin detection. £PA sampled residues in the building tanks, lagoon water, lagoon run-offs and' some composite soils samples in the lagoon areas of the Site. EPA analyzed for the most toxic dioxin isoraer 2,3,7,8- tetrachlorodibenzo-p-dioxin (dioxin).' All samples analyzed using an approved analytical .method for dioxin were reported as non- detect for dioxin. The goal was to check those areas on the Site that should have contained high levels of dioxin if dioxin producing products had been manufactured at the Site. Since the screening studies of the process area and lagoon area did not detect dioxin, no further dioxin sampling was performed. Dioxins are ubiquitous contaminants throughout the environment at

Celebrating 25 Years of Environmental Progress 31961*3 5) Pentachlorophenol (PCP) was found at higher levels than Fenac suggesting that pentachlorophenol must have been manufactured or disposed of at the Site. Response: Wastes from pentachlorophenol are included in the F021 and F027 waste listings. EPA reviewed the Drake Chemical Company's process records and found no indication that pentachlorophenol was produced, used in manufacturing, or disposed of at the Site. Out of 78 soil samples, only 3 contained detectable levels of pentachlorophenol. Two of the . samples were near the railroad tracks. One of the samples was taken near the center of the site in a former lagoon area. These samples did contain very high levels of pentachlorophenol. These very high detections raised the statistical average of PCP soil concentration above that of Fenac. EPA believes that these three sample concentrations probably were due to the presence of wood at the Site that had been treated with PCP as a wood preserver. This wood preservative may have been from railroad ties or flood ' debris disposed at the site after Hurricane Agnes affected the area in 1972. The infrequent occurrences of PCP in soil samples corroborates, rather than contradicts, a finding based on' facility records that PCP was not produced, used in manufacturing, or disposed of at the Site. For example, in contrast to the 3 detects of PCP, Fenac was found throughout the Site. Of the 43 samples taken in 1987, about 37 detects of Fenac were found, as would be expected for a product that was manufactured at the Site. • , 6) Building samples were taken that showed high levels of dioxins. ' Response: Samples taken from residues within a building, at the Drake Site (See the 2/13/84 memo from Hagel to the Drake file) . were analyzed by a screening method for dioxin. This analysis reported the potential presence of high levels of dioxins in the, building. The buildings and materials within them have been removed from the Site and will not be treated in the incinerator. Subsequently, the Region sent those- samples for re-analysis, and some additional samples from the lagoon areas for analysis by an appropriate, approved analytical method for dioxin detection, EPA sampled residues in the building tanks, lagoon water, lagoon run-offs and1 some composite soils samples in the lagoon areas of the Site. EPA analyzed for the most toxic dioxin isomer 2,3,7,8- tetrachlorodibenzo-p-dioxin (dioxin). All samples analyzed using an approved analytical method for dioxin were reported as non- detect for dioxin. The goal was to check those areas on the Site that should have contained high levels of dioxin if dioxin producing products had been manufactured at the Site. Since the screening studies of the process area and lagoon area did not detect dioxin, no further dioxin sampling was performed. Dioxins are ubiquitous contaminants throughout the environment at

Celebrating 25 Years of Environmental Progress 8 very low levels. Generally dioxin sampling at Superfund sites is conducted only when dioxins are expected or .known to-be present as a -significant site contaminant. In response to information suggesting that Drake might be such a site, the Region made a reasonable inquiry and determined that the Drake Site was not a "dioxin 'site". The fact that the.Region did not consider the Drake site to be a "dioxin site" is documented in the memorandum to the file from Dr. Walter Lee, the _EPA employee who was reviewing sites in the Region for possible inclusion in EPA's list of "dioxin sites". 7) . Dioxin is a chemical constituent that is regulated as.a "hazardous waste" under RCRA by use of the Toxicity Characteristic (TC) test. Response: Toxicity Characteristic hazardous wastes are wastes that are designated as hazardous based on the concentration of a hazardous constituent'in the leachate obtained from the "Toxicity Characteristic Leaching Procedure" specified in the EPA's RCRA regulations. (See 40, C.F.R. Section 261.24) (The TC test is Method 1311, It is found in "Test Methods for Evaluating Solid Waste,", EPA publication SW-846.) EPA has not set a regulatory level for dioxin in leachate from this procedure. Consequently, the Agency does not designate any wastes as characteristic hazardous wastes based on dioxin.

Celebrating 25 Years of Environmental Progress • -.- HR3I96U-5 8 very low levels. Generally dioxin sampling at Superfund sites is conducted only when dioxins are expected or known to be present as a significant site contaminant. In response to information suggesting that Drake might be such a site, the Region made a reasonable inquiry and determined that the Drake Site.was not a "dioxin site". The fact that the Region did not consider the Drake site to be a "dioxin site" is documented in the memorandum to the file from Dr. Walter Lee, the SPA employee who was reviewing sites in the Region for possible inclusion in EPA's list of "dioxin sites". 7) . Dioxin is a chemical constituent that is regulated as a "hazardous waste" under RCRA by use of the Toxicity Characteristic (TC) test. Response: Toxicity Characteristic hazardous wastes are wastes that are designated as hazardous based on the concentration o£ a hazardous constituent in the leachate obtained from the "Toxicity Characteristic Leaching Procedure* specified in the EPA's RCRA regulations. (See 40 C.F.R. Section 261.24) (The TC test is Method 1311. It is found in "Test Methods for Evaluating Solid Waste," EPA-publication SW-846.) EPA has not set a regulatory level for dioxin in leachate from this procedure. Consequently, the Agency does not designate any wastes as characteristic ; hazardous wastes based on dioxin.

Celebrating 25 Years of Environmental Progress ~' RR3196U6 APPENDIX B

flR3!96l»7 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ,Sfe WASHINGTON, D.C. 20460 y

August 8, 1997

OFFICE OF SOLID WASTH AND EMERGENCY RESPONSE

MEMORANDUM

SUBJECT: Draft Final Report on the Review of the Drake Chemical Superfund Site FROM: Robert J. Martin National Superfund Ombudsman TO: Timothy Fields, Jr., Acting Assistant Administrator Office of Solid Waste and Emergency Response

Attached is the Draft Final Report on the review of the Drake Chemical Superfund site. This report includes and is responsive to comments offered by EPA Region III and the Office of General Counsel and a Review Memorandum offered by the EPA Environmental Response Team. The review of the site issues has comprised approximately one year of extensive time and effort. Besides gathering and analyzing "documents and information from the Region and citizens, I also conducted a site visit and a public meeting. * The Draft Final Report invites extensive comments during the next -60 days in writing. I will issue a Final Report, based on the foregoing information developed, 60 days after the end of the comment period. cc: Michael Shaprio Cliff Rothenstein

RR3196U8 R*cycI«d/H»cyctabU • Prtited with Vegetable OS Based Inks on 100% Recycled Paper (40% Postconsumer) DRAFT FINAL REPORT

ON THE

DRAKE CHEMICAL SUPERFUND SITE

OFFICE OF THE OMBUDSMAN OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE U. S. ENVIRONMENTAL PROTECTION AGENCY

AR3.I9649 DRAFT FINAL REPORT

ON THE

DRAKE CHEMICAL SUPERFUND SITE

TABLE OF CONTENTS

PAGE NO.

I. SITE HISTORY ...... 1

II. REGIONAL INVOLVEMENT ...... 1

III- INTERVENING PETITIONS ...... 2

IV. AUTHORITY AND PROCEDURE ...... 3

V. REMAND OF INTERIM REPORT ...... 4

VI. SIGNIFICANT ISSUES AND ACTIONS TAKEN .... 6

VII. CONCLUSION ...... 22

VIII. APPENDICES ...... ;..... 23

AR3I9650 I. SITE HISTORY The Drake Chemical site is located at 180 Myrtle Street in .Lock Haven, PA- The site is located in an industrial area of Lock Haven bounded by Conrail, American Color and Chemical and Route 120. The site was a chemical manufacturing facility which produced dye intermediates and pesticides from 1951 to 1982. During the manufacturing operations the site and groundwater at the site were contaminated with many organic compounds including Beta-naphthylamine and Fenac,

II. REGIONAL INVOLVEMENT EPA Region ITI has undertaken, over the course of the past 15 years, many significant response-actions to address the contamination at the Drake Chemical site. Initially, the Region used emergency removal authority pursuant to the Superfund law to remove surface drums, sludge, and liquids contained in process and storage tanks •and fenced the Drake site in 1982. t , ; Subsequently, EPA initiated a Remedial Investigation Feasibility Study (RI/FS) in 1983 which resulted in a Phase 1 remedial action. The Phase 1 remedial'action involved the closure of a leachate stream that ran off-site towards Bald Eagle Creek. The Phase 1 remedial action was completed in 1987. EPA continued investigation of the site and issued a Phase 2 Record-of Decision (ROD) in May 1986. The Phase 2 remediation involved removal of surface structures and draining and disposal of material from two lined lagoons. According to EPA Region III, Phase 3 of the Response Actions involves two responses, a source control response and a groundwater remediation response. The Source Control remedy is currently being performed and involves treating the on-site soils and sludge to remove the contaminant source which will allow groundwater remediation to be performed-without the-groundwater being recontaminated by the_on-site_contaminates. _This treatment will include: excavation of the site soils and sludge; thermally treating the soils and sludge to remove organic; stabilization of treated soils and sludge which may be high in metals to control leaching of the metals into the groundwater; and back-filling of the treated soils and sludge after chemical tests have demonstrated that the material meets the treatment standards.

ftR3!965l - 2 -

III. INTERVENING PETITIONS During implementation of the third phase of the response action, affected citizens represented by Arrest the Incinerator Remediation (hereinafter "petitioners") traveled to St. Louis, Missouri on May 16, 1996, to petition Robert J. Martin, the Director of the EPA Office of Ombudsman, to designate the Drake Chemical Superfund site as an Ombudsman case. Director Martin instructed petitioners to make their request in writing outside of the forum of the Times Beach case. Petitioners, in a letter to Administrator Carol Browner dated May 22, 1996, set forth their grounds for Ombudsman intervention. See, AIR Letter of May 22, 1996. Appendix A. Following receipt of this letter, the Office of Ombudsman designated the Drake Chemical site as an Ombudsman case and initiated fact-finding under its standard procedure, eventually leading to an Interim and Final Report. Subsequently, United States Senators Arlen Specter and Rick Santorum, in a letter to Administrator Browner dated June 25, 1996, commented that "[gjiven the controversy associated with the agency's cleanup plans for this Superfund site, and the misgivings voiced fay some local elected officials and other residents based on the choice of a cleanup technology, we urge you to convene a public meeting as soon as possible that would be chaired by your Agency's National Ombudsman, Robert Martin. Our request for your National Ombudsman, rather than a Regional Ombudsman, is made because of the national implications of a decision to incinerate." See, Letter of U.S. Senators Specter and Santorum, dated June 25, 1996, Appendix B. Director Martin then chaired a public meeting which was held in Lock Haven, Pennsylvania, on September 19, 1996. Senator Specter, in a letter to Administrator Browner dated October 3, 1996, noted that n[t]he meeting was chaired by your Agency's National Ombudsman, Robert Martin" and expressed a preference "to receive a report from Mr. Martin which would include his thoughts on the issues raised at the public meeting." See, Letter of Senator Specter to Administrator Browner, dated October 3, 1996, Appendix C. Finally, Senator Specter'wrote to Administrator Browner on February 14, 1997, and expressed an understanding that "Mr. Martin is in a position to issue an interim report of his findings .... the residents of Clinton County certainly have every right to receive such a report and I urge you to take all necessary actions to ensure that Mr. Martin releases an interim report promptly." See, Letter of Senator Specter to Administrator Browner, dated February 14, 1997, Appendix D.

AR3I9652 -3 -

IV. AUTHORITY AND PROCEDURE The Office of Ombudsman was established by the Congress within Section 2008 of the Resource Conservation and Recovery Act. Section (a) of the law authorized the Ombudsman to "receive individual complaints, grievances, and requests for information submitted by any person with respect to any program or requirement under this Act." Subsection (b) authorized the Ombudsman to "make , appropriate recommendations to the Administrator." EPA established the Office in 1986 pursuant to the Congressional mandate. Following sunset of the mandate in 1989, EPA decided to make the Office of Ombudsman and its functions permanent because "Congress has chosen this solution for dealing with such problems in the hazardous waste programs EPA administers." (See, Hazardous Waste Ombudsman Handbook at pg. l-l.) EPA also decided to broaden the function to include the Superfund program","among others, to serve the public better. Thus, "both the statutory language and its legislative history confirm the importance Congress places on the public assistance functions of the Office of Ombudsman. By centralizing these functions in the Office of Ombudsman, Congress intended to improve EPA's responsiveness to the public with respect to the increasingly complex RCRA and Superfund programs .... the charge of the Ombudsman to provide assistance with problems, complaints or grievances, is an extremely broad one." See, Handbook at pg. 2-2,3. Notably, the keystpne__pf the. Ombudsman function is its responsiveness to members of the public who have problems, complaints, or grievances. As Black's Law Dictionary provides, "(t)he Ombudsman stands between, and represents, the citizen before the government." The standard procedure of the Office of Ombudsman favors .complaints which frame - issues in writing,.thereby serving as the foundation of an Ombudsman case. ' The Office of Ombudsman then undertakes preliminary fact-finding on the relevant issues leading ultimately to findings of fact in a Final Report. Necessarily, facts averred by one party, usually the petitioner, are usually denied by the party being complained against, usually the government, in an Ombudsman case. The typical context for this kind of disagreement is within an Interim Report by the 'Off-ice of Ombudsman. It should be noted, once again, that the Office of Ombudsman makes no true MFinding of Fact" until a Final Report has been prepared. The Office of Ombudsman-relies upon widespread comment, both external to the EPA and from within the EPA,- to' progressively balance viewpoints, hone technical accuracy; and determine those

ftR3!9653 - 4 - facts which are necessary to address the issues that have been framed by citizen petitioners. Once the viewpoints of all interested parties to an Ombudsman case have been received and the Office of Ombudsman has reviewed necessary primary source documents, a Final Report is distributed. The Final Report represents the summation of a process which involves fact-finding, thorough research and the solicitation of comment from within and without the EPA. Recommendations are made within the context of a Final Report to the Assistant Administrator and other senior EPA management officials, which, if they are adopted will lead in the view of the Office of Ombudsman to appropriate resolution of a petitioner's complaint and surrounding issues. Nonetheless, the Office of Ombudsman recognizes that petitioners may feel that a problem has not been addressed or that discussion should not be foreclosed on a particular issue. The Office of Ombudsman will retain jurisdiction, therefore, over any such problem or issue to ensure responsiveness to the public. This is consistent with Ombudsman policy which provides that an "Ombudsman case is considered closed when all actions have been taken to resolve the problem and the person has been notified. The main concern in closing a case is being reasonably certain that the person is satisfied that the Ombudsman has addressed all problems." See, Ombudsman Handbook at pg. 3-10.

V. REMAND OF INTERIM REPORT ,On May 8, 1997, the Office of Ombudsman did complete and submit for distribution an Interim Report on the Drake Chemical site. On May 19, 1997, the Acting Assistant Administrator for the Office of Solid Waste and Emergency Response (hereinafter "OSWER") returned, or remanded, the Interim Report to the Office of Ombudsman "for appropriate revisions following the receipt .... of input from the" .... Office of General Counsel, Region 112 and the Environmental Response Team. See, Appendix* E. The Acting Assistant Administrator was concerned by the "initial response" of these offices after they had reviewed the Interim Report. They felt,that "a wide range 'of "issues from technical inaccuracies, factual errors, incomplete information, judgmental language and statements not related to the Drake Chemical site" had posed significant legal problems. The Office of Ombudsman solicited comments from each office on these concerns. Those comments and relevant documents have been included within the Appendices to this Draft Final Report

AR3I96514 along with a list of "key issues and all, persons consulted on .... these .issues" in accordance with the instructions from the Acting Assistant Administrator upon remand of the Interim Report to the Office of•Ombudsman. Briefly, Region III provided two sets of comments to the Office of Ombudsman. The first set was dated on May 15, 1997, and the second set was not dated but was received in June 1997. The Region believed that "the Interim Report contains inaccuracies, unsupported ' conclusions and outdated information .... (t)he Report also does not present a balanced view of the Drake incineration cleanup .as there appears to have been no attempt to interview EPA personnel, PADEP personnel, or other stakeholders with an interest in the Drake cleanup". See Appendix F. The EPA Office of "General Counsel (hereinafter "OGC") found that "(t)here are several statements .... which may be inaccurately characterized as 'facts'") See Appendix G. OGC asked that the Office of Ombudsman "ensure that allegations are identified as such" throughout the text of the Report, The EPA Environmental Response Team, however, "noted that while many of the allegations of petitioners seem to be accepted as fact by the Ombudsman, a close reading indicates that his recommendations are aimed at addressing these allegations". See Appendix H. The Office of Ombudsman has in this Draft Final Report made "appropriate revisions" pursuant to the instruction of the Acting Assistant Administrator to respond to the comments offered by the three EPA offices. Those revisions do not include corrections to "misstatements of facts" since none of the above offices specifically alleged any misstatements of facts. This Draft does correct one or two factual errors, however, relating to the test for RCRA listed dioxin waste and a statement by former EPA Regional Administrator Kostmayer. Moreover, as OGC noted in their comments, only the Final Report will delineate findings of fact in this case. Still, the , Office of Ombudsman will be careful to note, as the OGC has suggested and as the ERT has observed, that allegations are identified and -:: responded to as such. The Office of Ombudsman has also taken notice of information which has been outdated or actions which have been taken by EPA Region III since the original Interim Report was prepared. This should address the issue of unsupported conclusions, if any, which have been made in the Interim Report. Another measure that will address concerns about technical accuracy, incomplete information and a balanced view of the Drake Chemical site-will be a review of the entire Administrative Record for the Drake site by the Office of Ombudsman prior to completion of a Final Report.

AR3I9655 — 6 *~

As explained by the Office of Ombudsman in the Times Beach Final Report, an Ombudsman review is not a judicial proceeding or an administrative rulemaking. A thorough review of the Administrative Record, however, as recommended by the OGC, is well taken and will add to the credibility of the Final Report in the Drake site. Finally, the office of Ombudsman will continue to rely upon the Superfund Regional Ombudsman in Region III to help coordinate communications with the Region and to engage in fact-finding. The Regional Ombudsman was established by EPA Administrative Reform last year and may be relied upon to "report to a top regional management official" in order to "facilitate resolution of concerns that have not been resolved between regional personnel and stakeholders." See Appendix I.

VI. SIGNIFICANT ISSUES AND ACTIONS TAKEN A. Site Characterization Issues 1. Additional Waste Sites Director Martin observed several drums on a property in Lock Haven during the February visit to continue fact-finding. Petitioners alleged that the drums were disposed of within the property by either the American Color and Chemical Company ("AC&C), the Drake, and/or Kilsdonk chemical firms. Sworn testimony offered by Mr. Raymond C. Streck in a case which involved AC&C, addresses this issue. See, Koppers V. Aetna, dated December 15, 1993, pgs. 57-60, Appendix O. In that testimony, Mr. Streck, in response to a question as to whether any of the owners of the Lock Haven plant "bought a piece of property to dispose of waste product near the river bank?" replied that this was done "Down the other end of Piper near the runway." He stated that he was aware that waste product was buried in different locations around the Piper area. The Office of Ombudsman asked the EPA Region III Ombudsman to investigate the matter of the drums further. The Regional Ombudsman reported that "the property is located near the Piper Aircraft facility owned by Monroe Farms" and that "the waste at the sites was generated by the American Color and Chemical Company (AC&C) as a result of their efforts to clean up several large sludge impoundments owned by the company." The Regional Ombudsman noted that a "former employee claims that only sludge waste was put into the trenches .... and that he knows nothing about drums having been disposed of in the trenches." The former employee was subsequently identified as Mr. Primo Marchessi, retiree from the AC&C firm. The AC&C is a defendant in the Drake consent decree and the subject of

AR3I9656 —•7 —

^BP a RCRA consent order. No information.has been found at this time by the Office of Ombudsman on the management of Kilsdonk's hazardous waste, Appendix J. The Pennsylvania Department of Environmental Protection ("PADEP") confirmed to the Regional -Ombudsman that "there are now only the remnants of a total of nine drums at the three sites, and that they are empty .... the drums had plastic liners, but that the liners are now corroded .... the drums obviously contained chemicals at one time." Petitioners subsequently returned to the Piper site and with the use of a metal detector allegedly found another 18 drums at the Piper sites. PADEP concluded that "the site poses no hazard to the community" because "there are no homes located down-gradient of the drum sites and that none of the homes in the area are in the groundwater flow pattern of the site" and that "there are large fields between the drum sites and the liomes, and between the drum sites and any water bodies in the area." See memorandum from EPA Region' III Ombudsman to the Office .of Ombudsman, dated March 10,1997, Appendix M. Petitioners allege more drums may be present at the Piper sites and further allege that the source of the drums may be, the AC&C site, the Drake site, both sites, and/or other past generators, such as Kilsdonk. The Piper drum sites are less than one mile from the AC&C and Drake sites^ There may be other areas located within "the Lock Haven community and the surrounding area which were used as disposal locations. See, Streck testimony at pg. 60, Appendix O. Petitioners have also alleged that drums may be buried in Taggert Recreational Field and hear the Unimart in Lock Haven. The Pennsylvania Bureau of Solid Waste Management noted in 1981 that "[t]he investigation at Drake Chemical Company is now being delayed awaiting the outcome of EPA's criminal investigation .... I received a telephone message from EPA regarding an air photo of Drake Chemical in Lock Haven. This photo revealed a possible buried dump site adjacent to the Drake property. A search of courthouse files reveals that Hoberman Salvage Company and United Real Estate Development Association own this property. Yener Soylemez of EPA was contacted, arid this information was passed on to him. The investigation will continue as soon as EPA notifies me that their investigation is complete." See, Memorandum to the File from Thomas Showman, Solid Waste Specialist, Williamsport Regional Office, Bureau of Solid Waste Management, Commonwealth of Pennsylvania, dated March 2, 1981, Appendix K. At this time, the Office of Ombudsman has no other information regarding the alleged criminal investigation 16 years ago. -

flR3!9657 - 8 -

PADEP expressed to EPA Region III on April 15, 1997 that a contractor would be retained to address the matter of the drum sites on the Piper property and that it would not be necessary for EPA to duplicate their efforts. EPA Region III subsequently discussed "our protocol qf allowing a State to take responsibility for an emergency response .... it has always been our operational policy to give notice to the appropriate state agency both for their information and to provide them the first opportunity to carry out a response. This has been done respecting State program responsibilities to respond in a timely fashion to incidents that are closer to their own response personnel." See Memorandum from Charlie Kleeman to John Armstead, EPA Region III Ombudsman, April 18, 1997. The policy expressed therein is to recognize "EPA giving States the opportunity to carry out their own responses .at sites." See, Kleeman Memorandum, Appendix L. Following submission of the Interim Report, OGC asked the Office of ombudsman "to clarify whether and how you consider the additional waste sites to be related to the site characteristics and/or remedy at Drake". See, Appendix G. OGC further requested clarification on whether the "three sites" were on the same property, or whether there are additional properties. The Office of Ombudsman defers to the Regional Ombudsman on the property issue. Petitioners allege that drums are on many additional properties. OGC also requested clarification on whether 18 additional drums were found by petitioners or whether they had simply found "metal" in several different locations. The ERT shared this concern, noting that "petitioners may have exaggerated the results of one of their investigations when they stated that they had used a simple magnetometer to locate 18 buried drums .... the vast majority of 'magnetometer hits' turn out to be other metal objects, such as bed springs, garbage cans, household appliances, etc., notwithstanding this inaccuracy, PADEP seems to be responding to the 'drum dump'". See, Appendix H. On July 11,'1997, the Office of Ombudsman asked.the Region III Superfund Ombudsman to, among other things, "make contact with PADEP and Westinghouse to determine what has been found at the Piper site." See, Appendix M. On July 18, 1997, the Regional Ombudsman replied tha't "(t)hey have found 28 drums in the area where the -exposed drums were located and have sampled them and are waiting for disposal. There were a number of additional anomalies found at the site and so far it appears that the reason for these anomalies is not buried drums but they are sludge disposal areas (metals have been detected in the 10,000 ppm range). They are going to open up the other areas that have anomalies and see what they come up with. See, Appendix M.

AR3I9658 The analysis confirms petitioners' allegation that additional drums were present at that site. The Region shared a concern, however, about the "comments by the Ombudsman regarding possible additional waste sites existing in the Lock Haven area is not relevant to the issue'of this Drake incinerator. Even if the drums were shown to be generated from the Drake site, the new parcels would become a separate CERCLA site and not a part of the Drake remediation". See, Appendix F. The Region has been aware that drummed waste was present at the Drake site itself. In sworn testimony in a Federal District Court proceeding, the former EPA Region III Site Manager stated that "I expected to find drums at the site. I did. not have the exact locations where they would be". See, Appendix O at pg. 96. . In additional sworn testimony in Federal District Court, a witness , who formally worked for a State legislator, stated that "our office-would receive information saying that either we worked there or we had relatives work there, and this happened or that happened,, everything from dead bodies being thrown in the pools that were there to disappear overnight, to barrels of toxic waste being dumped in the ponds and so on. Because of the proximity of that site to AC&C, it was hard to determine who was producing what• and what was coming from where". See, Appendix 0 at pg. 24. The issue of relevancy voiced by OGC and Region III with respect to the alleged connection between the drum sites and the Drake incinerator may be directly addressed. EPA can, and has in many locations around the Nation, combined toxic sites which are not contiguous for purposes of executing a single response or remedial action. For example, such locations include the Times Beach sites in Missouri and the Bayou Bonfuca and Southern Shipbuilding sites in Louisiana. Both properties involved thermal incineration as a remedy and relied upon Section 104(d)(4) of CERCLA for legal authority in order to continue the sites. Therefore, relevancy of the drum sites is not an issue. In any event, the Region has addressed this issue by deciding, if necessary, to establish "a separate CERCLA site" which would be "not. %•. part of the Drake remediation". See, Appendix F. The Office of Ombudsman did recommend in the Interim Report that the ERT should assist PADEP to investigate the drum sites, without understanding that it is the Regional Site Manager (or OSC/RPM) who may request ERT support from EPA Headquarters. See, the National Contingency Plan, 55 Fed. Reg. 8830, para. 300.145 (c)(2)(4). As the NCP provides, "the ERT is established by EPA in accordance with its disaster and emergency responsibilities . ...^ The ERT has expertise in treatment technology, biology,^chemistry, hydrology, geology and engineering. The Region has'indicated,

flR319659 - 10 - itself, that it "will render assistance to the Commonwealth of Pennsylvania upon request from PADEP". See, Appendix F. The Office of Ombudsman is aware of no request for assistance from PADEP to EPA Region III regarding the drum investigation. Furthermore, petitioners have alleged that the Region, although welcoming ERT's assistance in certain aspects of the Drake incinerator trial burn, does not otherwise desire ERT's intervention. Although "ERT has long been involved in assisting Region III at the Drake Chemical site ... . past ERT activations have come at the request of the Regional Office and we are concerned that ERT assistance continue to.be at the request of the Region, and that ERT not be inserted into an oversight role". See, Appendix H. The ERT does realize, however, "that our expertise and impartiality do make us useful in a technical mediator or arbitrator role, and would welcome that role if all parties agree to accept our participation". See, Appendix H. The Office of Ombudsman continues to believe that ERT's intervention in Lock Haven is desirable, but defers to EPA Region III and the PADEP to evaluate a possible ERT role. Nonetheless, such intervention by the ERT, at the request of EPA Region III, could result in cost savings to the PADEP and enhanced public confidence.

RECOMMENDATION EPA Region III should carefully evaluate the use of the EPA Environmental Response Team as a technical mediator or arbitrator of technical issues which involve the Drake incineration site or which arise from the Office of Ombudsman process. If such a role is established, the ERT should meet with EPA Region III, PADEP, appropriate local government officials (including the Lock Haven City Environmental Advisory Council and the Clinton County Commissioners) and the petitioners to confirm ERT participation. 2. Contaminants of Concern Petitioners have alleged that some contaminants have not been sufficiently characterized at the Drake site. For example, petitioners are concerned that Pentachlorophenol (PCP) was found at the Drake site. EPA has concluded that PCP was not produced, manufactured or disposed of at the site, but did note that "[o]ut of 78 soil samples at the site which were tested for PCP, only three contained detectable levels,... while these detected concentrations were high, EPA believes they are probably-due to the presence on the site of wood that had been treated with PCP as a preservative." . ' , .. - ii r. . ,,,'.,

See, EPA Integrated Risk^Assessment at pg. 34. EPA had articulated earlier that PCP was "found sporadically throughout the area and in three on-site samples" but did not believe that the compound was site related. See, Drake Record of Decision at pg. 20. Petitioners have also alleged that Silvex, an herbicide, has not been sufficiently accounted for at the Drake site. EPA noted that silvex "was found at low concentrations in some drums of waste at the site" and that it "was not detected in any soil samples*" See, Memorandum of Frank Vavra, Remedial Project Manager, to Thomas C. Voltaggio, Director, Hazardous Waste Management Division, US EPA, "RCRA Dioxin Listed Wastes Will Not Be Treated in the Drake Chemical Superfund Site Incinerator", dated August 7, 1996, Appendix P. " „ :. = . .. Wastes from PCP are included in the waste listings which may trigger a determination that a RCRA listed waste is present. As EPA has noted "an incinerator burning hazardous"waste must be designed, constructed and maintained so that , when operated in accordance with the operating requirements specified under 40 CFR 264.345, it will achieve a destruction and removal efficiency (DRE) of 99.99% for each principal organic hazardous constituent (POHC) in its waste feed. 40 C.F.R. 264.343 (a)(1). An incinerator burning certain RCRA "-listed" wastes, however, must achieve a DRE of 99.9999% 40 C.F.R. 264.343 (a) (2)." See, Vavra Memorandum, Appendix P. PCP waste may trigger RCRA listings in the FO26 and FO27 categories and silvex wastes may trigger a RCRA listing for the FO27 category. An initial EPA screening analysis demonstrated high levels of dioxin in former building structures and holding tanks at the Drake site. See, EPA memorandum from William A. Hagel, Remedial On-Scene Coordinator to Walter F. Lee, Chemist, Dioxin Task Force, Region III, "Dioxin Results From Building Samples at the Drake Chemical Superfund Site", dated February 13, 1984, Appendix Q. According to OGC and EPA Region III, later tests for dioxin showed none. The Region commented, on the basis of a document that the Office of Ombudsman did not possess before submitting the Interim Report, that, "some false dioxin detections in the site building and lagoon samples occurred arid how samples analyzed by a method specifically for dioxin showed non-detects for 2,3,7,8, TCDD for all soil samples". • This raises questions, advanced by petitioners, as to which analytical method was used, what the detection limits were and what kinds of isomers were tested for at the site. Fenac will be incinerated and was known to have been produced at the'site and was found in approximately 37 of 43 soil .samples at Drake. EPA found that the components of Fenac "do not normally generate dioxin

SR3I966 byproducts." See, EPA Integrated Risk Assessment at pg. 33. EPA did not explain, however, whether Fenac and its components may generate dioxin by-products under conditions which are not deemed normal or which were unusual. Fenac may form dioxin "under irregular operating conditions." See, Vavra Memorandum at pg. 5, Appendix P. > Petitioners have asked for clarification on whether dioxin may be produced during "unusual conditions" in manufacturing Fenac and in "irregular operating conditions" during thermal incineration of Fenac. The key test is-whether any potential RCRA listed waste, however, was produced, used in manufacturing or discarded in unused formulation at the Drake site. The central point, therefore, is the origin of a particular waste, not its presence or amount.. See, 55 F.R. 51444, 55 F.R. 8758 and the Land Disposal Rule for CERCLA response actions. See also, OSWER Directive 937.3 - OSFS July 1989. On the basis of these rules, EPA Region III has found'that no wastes have triggered a RCRA listing and thereby a higher Destruction Removal Efficiency (99.9999%) for the Drake incinerator, See, Vavra Memorandum, Appendix P. Petitioners have alleged that the Vavra Memorandum, however, may not have addressed the direct sworn testimony of Mr. Franklin Furl, a former Drake Company Manager, provided in Federal District Court. Mr. Furl stated "that some of the by-products of the manufacture of Fenac, when the product was not 100% pure, the remaining ingredients in it were a variety of chemicals and the only two that really popped to my mind is 2,4-D dichlorophenoxy, and also 2,4,5-T, which as I came to find out in searching the Merck Index and that, that was like silvex was the compound. And these were unwanted waste products and this was a real concern". See, Appendix 0. As previously discussed, Silvex in an unused formulation may trigger a RCRA dioxin listing. Mr. Furl went on to testify that "when EPA submitted the reports from the NUS Corporation of monitoring wells, and soil borings that had been done, I normally was in the habit of going down each of the compounds to try and see, you know, did we do this, make this or didn't we, you know, because we weren't sure of a lot of things. We had a list of strange names attached to some pretty nas,ty chemicals and it wasn't until after we weren't employed there we found out what we were working with. So I "would always go down the list. And one of the soil borings or monitoring wells by our warehouse, I came across an odd chemical that I could not identify, to which I went to the Merck Index to look it up and I was floored that time because it said it was a nerve gas and I thought how did

SR3I9662 - 13 - that ever get there. Well, in further reading of the Merck explanation, it stated that it can be manufactured, and it gave the list of the compounds that1 are necessary, which were all present at our plant" .... See, Appendix O.

RECOMMENDATION To the extent not addressed by the Vavra Memorandum or otherwise within the Drake Administrative Record, EPA Region III may wish to consider developing a Fact Sheet that explores how allegations regarding unused formulations of Fenac and potential nerve gas compounds were addressed at the Drake site.

B. .1, General Petitioners have alleged that the risk assessment for the Drake site is deficient. Three risk assessments have been performed to predict potential trial burn impacts from the Drake incineration operation. The first risk assessment was conducted in December of 1995. The second risk assessment report was completed in June of 1996. A third risk assessment of the trial burn was conducted in February of 1997 to reflect winter season conditions. EPA has concluded that despite variables and modifications in approach between the risk assessments, "the resulting calculated risks for each of the three risk assessments are within the range considered acceptable for cleanup activities under the Superfund hazardous waste program." See, EPA Draft Comparison Report at pg. 39. '....„. _ . _ EPA is evaluating the risks from operation of the incinerator during the trial burn by analyzing real emissions data and "EPA has committed that before we begin a production burn, we will have a public: meeting to discuss a comprehensive risk assessment for the production burn, and as EPA has always maintained, we will not commence the production.burn unless the risk assessment shows it is safe to proceed." See, EPA Region III letter from Gregg Crystal to Petitioners Technical Advisor, dated February 28, 1997. Finally, the Acting Assistant Administrator for OSWER has decided, "(o).n a parallel track with' your Ombudsman efforts at this site" to ask "Region III to work with me to facilitate a peer review of the project plan for the final risk assessment over the next 60-90 days." See, Appendix E. The Office of Ombudsman now understands that the Peer Review will be completed in February of 1998.

AR3I9663 - 14 -

2. Air Monitoring Petitioners have alleged that the risk assessment should take into account the problems the air monitoring network is having in connection with B-Napthylamine (BNA). Petitioners alleged earlier this year that "it is clear there are non-detects for BNA at the monitors .... more information is needed before the results can be validated. Unresolved questions include; calibration parameters, quality control procedures, field blank use and recovery, impact of local modification and spike recovery on local Drake monitors .,.." Petitioners asked EPA to "stop incineration until perimeter and off-site monitors can measure BNA at the trial burn requirement of .001 ug/m3; or jlf that level is technically impossible then have a public comment period on whatever level the monitors are ultimately successful in achieving." See, GAP Preliminary Report No. £, dated January 28, 1997. EPA'was not able to meet the original "BNA detection limit of 0.001 micrograms per cubic meter" but has been able to meet a detection limit of "2.0 micrograms of BNA per cubic meter using a NIOSH analytical method, which is well below the PA Air toxic guidance level for BNA of 19.0 micrograms per cubic meter." See, EPA Letter to Petitioners at pg. 2, dated February 28, 1997. EPA Region III has since further explained to the Office of Ombudsman that "(t)he estimated detection level which was given .... was not based on public health guidance or as a desired detection level, but rather as a limit on the method .... (t)he goal of the air monitoring program was to detect -levels above 19 ug/m3 which is the PADEP Air Toxic Guidance recommended yearly average safe, level .... EPA's goal of complying with this value was made known to the public and petitioners' technical advisor was made aware of it" .... The Region finally concluded that "(a)nalysis of BNA at these extremely low levels is at the envelope of analytical science. EPA is striving .to- provide the community with the most protective detection levels possible with the current State of analytical science". See, Appendix F, pg.. 5-6.

Petitioners have alleged that the meteorological component of the risk assessment is deficient because the data is not site specific to the Drake facility but is derived from the Williamsport, Pennsylvania Airport which is approximately 20 miles away from the site. EPA has explained that this data "was used in lieu of on-site data that had been invalidated"for the projected period of the trial burn. Those on-site data were invalidated

flR3!966l» because of instrument failure and improper tower siting. For purposes of estimating the ambient impacts of the incinerator stack emissions during normal operations, EPA used the ISC3 (Industrial Source Complex Model, Version 3) model on_the Williamsport,data, and for calculating the effects of upset emissions, EPA used the "INPUFF" model." "See, EPA Response to Comments, Drake Chemical Superfund Site Trial Burn Process, dated September 12, 1996. Moreover, petitioners have alleged a deficient analysis within the risk assessment for thermal atmospheric inversions in the Valley location, in general,, and within the air shed above the site, in particular. Ms. Justh, a citizen of Lock Haven, commented in the public meeting held last September that EPA should not abandon its efforts to use site specific weather data but should return to the site and develop a suitable data base. See, Transcript of Drake Public Hearing at pg..174, dated September 19, 1996, Appendix R. The Office .of Ombudsman did comment in the Interim Report that the CALPUFF and INPUFF models are useful for assessing the ambient impacts of incinerator stack emissions during normal and upset conditions, but, they may not be uniquely sensitive to the site specific weather conditions or to thermal inversions in the Valley where Lock Haven is situated. The Office of Ombudsman felt that it might prove useful to employ weather balloons to measure the effects of thermal inversions on incinerator stack emissions. EPA Region III has taken the position in their comments to the Office of Ombudsman that the existing "data set is suitable for 'evaluating the possib.le impacts from the Drake incinerator and that this approach is actually better the using (sic) of on-site data." See, Appendix F, pg. 6. The Region also noted that the data collected from a RASS/SODAR weather system to be installed "will allow EPA to develop a far better representation of the thermal structure of the Valley then (sic) would be possible using weather balloons." .See, Appendix F, at pg 7. Nonetheless, the Region will, twice during the year, tajce the "weather data from the RASS/SODAR weather system' to be checked against readings obtained using weather balloons". See, Appendix F, pg. 7. 4. Fugitive Emissions Petitioners have argued that fugitive emissions from the site have not been sufficiently addressed in the risk assessment. The EPA Integrated Risk Assessment provides that; "fugitive emissions will be negligible due to the control measures prescribed." See, pg. 16. The Office of Ombudsman understands that those measures

AR319665 " - 16 -. include the use of concover on the site waste stockpiles. ^i^ Petitioners remain concerned, however, that the large piles of waste feed on the site pose a threat to the community. Winds may have carried dust and particulate matter into the community. A nursing home which provides care for the elderly is within one-quarter mile of the site. The Office of Ombudsman did recommend in the Interim Report that EPA Region III consider the use of additional measures (synthetic coverings and negative pressure enclosures) to address the allegation regarding fugitive emissions from the stockpiles. The Region, in their comments to the Office of Ombudsman, stated that "EPA and the USAGE believe that adequate fugitive emission controls are already in place .... but we are willing to consider specific recommendations from petitioners for improvements" .... The Office of Ombudsman encourages the Technical Advisor to petitioners to work with EPA Region III on improvements to the control measures.

C. SITE OPERATIONS ISSUES 1. Chain of Custody The Technical Advisor for petitioners alleged in January that "the chain of custody for the bottom ash samples was broken for both trial burn runs conducted on 1/25/97, and consider the samples invalid .... it was observed that the trial burn sampling contractor MRI ash sampler who was collecting bottom ash samples every half-hour for both trial burn runs left the bottom ash samples unsecured, unattended, and completely out of his sight for over 30 minutes between each sample period throughout the entire two runs. He also left-the entire first run samples unsecured, unattended and completely out of his sight for over 30 minutes after the end of the run. During the entire two runs all persons on site had full and free access to the samples. Further access was given to another bottom ash sampler working for the EPA contractor OHM. This sampler who was collecting bottom ash samples hourly during both runs to fulfill the put-back sampling requirement had full, free and unsupervised access to the MRI samples. He also shared the same work station, used similar collection plans, and collected samples at times different from the MRI sampler." See, GAP Memorandum to EPA, Hand Delivered on Site, January 26, 1997. The Technical Advisor went on to allege that "[t]his issue was brought to your attention after the first run in an attempt to prevent further violations, possibly resulting in declaring further runs invalid. There was no resolution on this issue,

&R319&66 - 17 - and the second run continued with no changes in the chain of custody procedures. It must be pointed out that less than satisfactory chain of custody procedures prompted a second stack test burn last week at the Times Beach site almost a year into their project. This issue should be resolved promptly, hopefully while the MRI sample team is still on site." See, GAP Memorandum,dated January 26, 1997. EPA Region III noted the_observation of the technical advisor that "a cooler of ash samples was left unattended for approximately one-half~hour inside the secure area" .... but concluded that " [p]roper chain of custody and traceability procedures were followed for ash samples. The data is reliable. These procedures have been reviewed by EPA, PADEP, USAGE and independent consultants." , See, EPA Letter from Gregg Crystal to GAP dated February 28, 1997. The Office of Ombudsman did extensively discuss this issue within the Interim Report, but has determined in this Draft Filial Report to defer further analysis; pending a review of the Drake Consent Decree and other EPA Guidance documents with respect to the Chain of Custody issue. OGC has commented that "Guidance .... are not requirements" and that "Regions are free to develop .reasonable and appropriate site-specific procedures other than those described in Guidance". See, Appendix G. The Region commented that "since the ash failed the put down criteria, data on the ash will not be used" and that the event which petitioners allegedly described "does not necessarily render a sample being .in an uncontrolled situation" .... and concluding on this issue that "the procedure were (sic) made stricter afjter the petitioner's Technical Advisor raised concerns .... trial Burn 2 and the Risk Burn 2 all had the stricter procedure .... (i)n the future the stricter procedure will be followed". See, Appendix F. Finally, Region III commented that (t)he samples collected during Risk Burn 1 and.2 were sent to the laboratory using a private plane, thus, providing direct control. Depending on the situations and needs, different levels of control and-, documentation of custody records may be applied .... (w)hile the lowest level can be used for any kind of engineering study or design study where the goal is to collect data for optimization of remedial actions to be taken". See, Appendix F. The management of ash collection and sample shipping by EPA Region VII,and the Environmental Response Team in the retest recommended by the Office of Ombudsman for the Times Beach site in Missouri was merely used in the Interim Report -as a case example in the fact-finding process regarding ash sample management. In particular, "[e]ach jar was labeled with the time and date of sample

«R3i9667 - 18 - collection, the project name, and the analysis to be performed. A custody seal was attached to the lid of each jar and each jar was placed in a ziplock plastic bag. Separate chain of custody forms were completed for the REAC samples, the split samples, and the archive samples. Samples were kept under constant surveillance by REAC personnel until the sample cooler was packed and custody sealed. At the end of each day the samples were kept in the locked REAC trailer." See, EPA Environmental Response Team Final Report on the Stack Test for the Times Beach Project, dated April 1997, Section 2.2.2.2, Ash Sample Management at pg. 14. As previously noted, the Office of Ombudsman will not further discuss this issue until a thorough review of the Administrative Record and Guidance.documents have been undertaken. 2. Occupational Safety and Health Issues The Technical Advisor to petitioners alleged that "[e]vidence of beer drinking was discovered on-site on 1/27/97, on- site inspection showed conclusively that empty beer cans and bottles came from on-site because beer cans and bottles were mixed with site .documents in double sealed trash bags in dumpsites located inside the second interior guarded fence. This evidence strongly suggests that the beer was consumed on site." See, GAP Memorandum to EPA dated January 1997, EPA does not believe that there is any evidence to "substantiate the claims that any site supervisor or employee has violated" stringent policies against possession or use of alcohol or drugs on the site. EPA has also noted that "at least two more inspections fay OSHA are upcoming including one by a specialized incinerator inspection team." See, EPA Letter from Gregg Crystal to GAP, dated February 28, 1997. In addition, one former OHM employee alleged "he was "roughed up" and stuffed in a drum containing contaminated soils in order to coerce his silence regarding problems at the Drake site". See, GAP Letter to EPA Region III, dated February 4, 1997. This former employee did offer direct testimony to ^the Office of Ombudsman, Finally, another former employee of the EPA contractor OHM Inc. for the Drake site reported to the Office of Ombudsman that many employees had prior knowledge of "spot check tests" for drug and alcohol use. This former employee and a member of petitioners' organization also reported to the Office of Ombudsman that indirect death threats had been made against them because of their allegations pertaining to drug and alcohol use on the site.- As noted in the Interim Report, the office of Ombudsman did bring these allegations to the attention of the Office of Inspector General in May of 1997.

&R3I9668 - 19 -

The Pennsylvania State Legislature did enact a Resolution which, among other things, allege that "EPA did not advise the community or DEP of the steps it is taking to investigate allegations of drug and alcohol abuse among employees that operate the incinerator." See, Senate Resolution No. 31, April 15, 1997. Appendix S. The Legislature resolved to "urge the USEPA to cease operation of the incinerator at the Drake Chemical Superfund site until the serious concerns about on-site decision making, involving the officials of the Bprough City of Lock Haven, Pennsylvania and the Pennsylvania Department of Environmental Protection in key decisions and the allegations of drug and alcohol abuse are investigated . . . . " and that EPA "publically disclose the full and complete test results from all trial burns at the, Drake Chemical site as soon as they are available." See, Senate Resolution No. 31. April 15, 1997. The National Contingency Plan provides that "contracts relating to a response action under the NCP should contain assurances that the contractor at the response site shall comply with any applicable provision of the Occupational Safety and Health Act 'or State OSH laws". See NCP section 300.150(c). ' On October 9, 1992, Chemical Waste Management Inc. of Oak Brook, Illinois agreed with the United States Department of Justice to pay $11.6 million in fines to settle federal charges in connection with the cleanup of the Lackawanna Refuse Superfund site , near Scranton, Pennsylvania. At the time, this was the largest environmental crimes case prosecuted under the Superfund law. In addition to the criminal fines levied against the firm, the Company agreed to terminate and/ or discipline six fcWM employees. The Office . of Ombudsman understands that the firm was not debarred as a result of the criminal fines or the administrative settlement with the EPA. Petitioners alleged that the same terminated and/or disciplined individuals may now be working for OHM at the Drake site. EPA Region -III has found that "[t]here are no employees or contractors working at the Crake site that are debarred from state or. federal projects." See, Letter from EPA Regional Administrator McCabe to United States Senator Santorum, dated April 21, The Office of Ombudsman did recommend in the Interim Report that the_ EPA Office of Inspector General, if appropriate, should address. this issue. Regional Administrator McCable following submission of the Interim Report, however, addressed this issue directly. In a May 23, 1997, letter to State Representative Camille George, he stated that "(t)here are employees at the Drake site . who did work for CWM at the Lackawanna site, however ,' none of the

AR3I9669 - 20 - employees at the Drake site were implicated for any wrongdoing at the Lackawanna site or any other site. I will add that these issues have recently been referred to the EPA Office of Inspector General". See, Appendix T. Regarding the allegations of drug and alcohol use at the Drake site, Region III commented to the Office of Ombudsman that the U.S. Army Corps of Engineers had investigated these allegations "and produced a letter" to demonstrate that there was no basis to the allegations. Regional Administrator McCabe affirmed that "USAGE conducted an investigation into these allegations and determined that there is no evidence to substantiate the allegation of drug and alcohol use fay any supervisors or employees on the job at the Drake Chemical site," See, Appendix T. To the extent permissible under law and in order to enhance public confidence in the operation of the Drake incineration project, EPA Region III should provide the Corps of Engineers letter to the petitioners, which explains how the allegations were investigated. The Office of Ombudsman, beyond referral to appropriate enforcement authorities of such allegations when they are made, will take no further action.

LEGAL AND COMMUNITY INVOLVEMENT ISSUES 1. Community Involvement Issues Petitioners allege that commitments made my former EPA Regional Administrator Kostmayer have not been observed since his departure from EPA. Following a discussion with petitioners, Kostmayer noted that "EPA has not performed an assessment of new technologies .... Unless the EPA can fully respond to and resolve to the community's satisfaction all of the serious questions which remain regarding the impending Drake incineration, I believe the Agency should reopen the Record of Decision (ROD).on the Drakes Chemical site ....". See, Letter of Peter H. Kostmayer to Vice President Albert Gore dated September 12, 1996, Appendix U. The Clinton County Farm Bureau communicated directly with the Office of Ombudsman and noted that "[d]ue to recent concerns being voiced from more of our members, our Board of Directors voted to extend our concerns to your office in hopes that you could be instrumental in persuading EPA .to reopen their Record of Decision. Our Board would like a determination of, 8 years later, whether or not incineration is still the best method of cleanup for this site being that the 1988 Record of Decision was based on the risk assessment being done in that time period. A new risk assessment

HR3I9670 - 21 - has been developed this year for this site and we feel that a new Record of Decision should be established based upon new findings and statistics. We would also like to be assured that there is an effective evacuation plan for all residents in Lock Haven and nearby communities should any detrimental malfunctions occur at the site." See, Letter of Clinton County Farm Bureau to the Office of Ombudsman, dated November 5, 1996. See, Appendix V. The Farm Bureau by the terms of the letter is also concerned about the effect of the incineration response action on buyers of their crops and farm produce. The Office of Ombudsman has received two letters dispatched by food buyers which were forwarded by. a Clinton County Commissioner. See, Appendix V. The Office of Ombudsman noted in the Interim Report that EPA Region III had begun to address many of the communication problems pointed out by State legislators and members of the Congressional delegation. EPA Region III Administrator McCabe pointed, out that "USEPA, USAGE, and PADEP held a partnering meeting in Lancaster, Pennsylvania, on March ,5 and 6, 1997, to resolve PADEP's concerns" and based on this meeting it is the Region's "understanding that these concerns have now t>een addressed." See, Letter from EPA Region III Administrator McCabe to United States Senator Santorum, dated April 21, 1997. See also, the Partnership-Agreement, Appendix W. Although the letter discussed many of-the issues raised by petitioners, petitioners do not feel that the letter was responsive to their concerns. 2. Legal Issues . SEDA-COG, the Council of Governments representing 13 counties in Pennsylvania, including Clinton County where the Drake site is located, has proposed to the Congress that "citizens and local governments"' should be able "to legally challenge EPA prior to the completion of Superfund cleanups if there is reasonable , concern that, irreparable harm to a population may occur." The county governments have reasoned that "Superfund sites generally contain potentially lethal or carcinogenic toxins and irreparable harm to a population may result _frorn EPA's choice of remediation, or from violations of the law occurring on the clean-up site itself." See, Issue Papers for SEDA-COG Congressional Meetings. The Office of Ombudsman had recommended in the Interim Report that OGC explain to SEDA-COG the law and policy which support the prohibition to such challenges to EPA Superfund clean-ups prior to completion. .'.... .

AR31967I - 22 -

The Office of Ombudsman also recommended an expansion of dispute resolution provisions in Superfund consent decrees to include citizens. 'OGC indicated a willingness to meet directly with the SEDA-COG, but made clear that "(w)e do not think you should release any statements in this area without discussing the issues with OECA and the Drake litigation team". See, Appendix G. The Office of Ombudsman has decided to consult with OGC and OECA prior to further discussing these issues within the context of this Draft Final Report or the Final Report.

IV. CONCLUSION Petitioners have offered meritorious issues for review by the Office of Ombudsman. This Draft Final Report addresses many of those issues. Several other issues such as the' request to assess new technologies, to assure an evacuation plan, to examine soil mixing; and allegations regarding the need to recontrol the site could not be dealt with in this report because of time and resource constraints. As previously noted, those issues and others which may be raised during the comment period will be addressed within the final report of the Office of Ombudsman on the Drake site. The Office of Ombudsman will, during the interim period between issuance of this Draft Final Report and submission of the Final Report, continue to consult with Region III, OGC, ERT, local government officials, Congressional representatives, and of course, the petitioners. The Administrative Record will be reviewed as well as the data from the Trial and Risk Burns for the Drake incinerator. The Office will also continue to work closely with the Agency for Toxic Substances and Disease Registry, which is conducting an evaluation of the potential health implications of the "proposed incineration remediation .... that "may lead to recommendations, including the recommendation of alternative remedial actions, if they appear necessary to protect public health." See ATSDR Letter of June 24, 1997. See, Appendix X. The Office of Ombudsman will take written comments from those parties who wish to make them for 60 days after the issuance of'this Draft Final Report. The Office of Ombudsman will then issue a Final Report on the Drake site within 60 days after the comment period.

AR3I9672 APPENDIX Q

AR319673 1 IN THE UNITED STATES DISTRICT COURT

2 FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

3 Clinton County Commissioners and A.I.R., Inc. •-/

vs 96-CV-181 United States Environmental Protection Agency and Carol Browner

9 10 BEFORE: Honorable Malcolm Muir 11 - PLACE: Williamsport, Pennsylvania 12, PROCEEDINGS: Preliminary Injunction Hearing 13 DATE: Tuesday, March 6, 1996

14 VOLUME: Two

18 APPEARANCES: 19 Mick G. Harrison, Esquire Robert Ukeiley, Esquire 20 Greenlaw, Inc. P. O. Box 77463 21 Washington, DC 20013-7463 For - Plaintiffs 22 Lewis, M. Barr, Esquire 23 Timothy Burns, Esquire U.S. Department of Justice 24 Environment Division, Room 7310 10th Street & Pennsylvania Ave., N.W, 25 Washington, D.C. 20530 For - Defendant

OFFICIAL COURT REPORTER AR3I967U APPEARANCES, Cont'd; , Kareri Kraus, Esquire Wayne Walters, Esquire 3 Fo.r - -Defendant

11,

'21

OFFICIAL COURT REPORTER 4 H J f 9b /5 1 INDEX OF WITNESSES

3 Plaintiffs' Witnesses

4 JAMES LOVETTE 5 Direct Examination by Mr. Harrison...... 6 Cross Examination by Mr. Burns. . V ...... 22 6 FRANKLIN A. FURL 7 Direct Examination by Mr. Harrison...... 27 Cross Examination by Mr. Burns.- ...... 42 8 Redirect Examination by Mr. Harrison. ;...... 51 Recross Examination by Mr. Burns...... 57 9 VICTORIA SMEDLEY 10 Direct.Examination by Mr. Ukeiley ...... 61 Cross Examination by Mr. Barr ...... 73 11 Redirect Examination by Mr. Ukeiley ...... 82 Recross Examination by Mr. Barr ...... 84 12 _DEAN M. BOTTORF 13 'Direct Examination by Mr. Harrison...... 86 Cross Examination by Mr. Barr ...... 90 14 Redirect Examination by Mr. Harrison...... 97

15 GARY L. JONES Direct Examination by Mr. Harrison...... 100 16 Cross Examination by Mr. Barr ...... 173 Redirect Examination by Mr. Harrison...... 190 17 13 19

OFFICIAL COURT REPORTER A R 3 1 9 6 7 6 1 INDEX OF EXHIBITS

2 Plaintiffs' Exhibits. .

PLAINTIFFS' EXHIBIT.NUMBER 16, EPA's Report of 1989 entitled, Experimental Investigation "of"Critical Fundamental Issues in' Hazardous Waste"Incineration, Identified. . . . • ." . . . , ...... 167 Admitted...... ' ". . "V ...... ' . . . ". . 202

PLAINTIFFS' EXHIBIT NUMBER 26, Results Report of Sample D030 Comp 2, 7 Identified...... 106 Admitted...... 202 8 PLAINTIFFS' EXHIBIT NUMBER 35, PA EPA Correspondence to Roy Schrock dated 8/5/95, Identified...... 125 Admitted...... 202

Defendant's Exhibits

DEFENDANT'S EXHIBIT NUMBER 40, Block Diagram of Rotary Kiln. System, Identified...... ,..../...... 174- 14 Admitted...... 202

OFFICIAL COURT REPORTER AR31967• _ 7_ 24

1 those statements. We -- our office would receive information 2 via telephone, mail, or personal visits, saying that either 3 we worked there or we had relatives work there, and this 4 happened and that happened, everything from dead bodies being 5 thrown in the pools that were there to disappear overnight, S to barrels of toxic waste being dumped in the, ponds and so 7 on. Because of the proximity of that site to AC&C'it was 8 hard to determine who was producing what and what was coming 9 from where, 10 Q May I just ask you, interject a. quick question and 11 t'hen I'll let you go on. When you use the term AC&C,-' does 12 that refer to the American Color and Chemical plant next 13 door? 14 A Yes, sir. 15 Q Thank you. Please go on. 16 A And we would check -- Mr. Lettertnan basically told 17 myself and the other members of our staff, as well as other * ... 18 staff that he had assigned to him.as chairman of the Joint 19 Legislative Air and Water Pollution Control and Conservation 20 Committee, to check out everything, some of which we couldn't 21 because there was just no paper trail. I mean we went on 22 examinations of sites off of the Drake site where there was 23 stuff supposedly buried, which has been documented, I think 24 through inquiries through EPA, to try to determine whether or 25 not -there were any other sites associated that should be

OFFICIAL COURT REPORTER RR3I9.678 26

1 THE COURT: . Would you spell your last name for me?

2 A F-U-R-L.

3 THE COURT: Your first name, Mr. Furl? 4 A . ."Franklin

5 . THE COURT: And your middle initial, if any?

6 A A.

7 , THE COURT: A. . 8 A It's junior.

9 THE COURT: What? 10 -A Junior. ..'.__.____

11 THE COURT: Oh, all. right. ' . . 12 In what community do you live?' 13' A Lock Haven. 14 THE. COURT: And what is your business, profession, 15 or occupation? 16 ,A Present I'm unemployed. 17 THE COURT: All right. What . was the last employment 18 you had, please? 19 Management staff for First Quality Products in Lock 2 0 Haven . 21 THE COURT: And what kind of a business was that? 22 A Manufacturer of disposal diapers for adults. 23 THE COURT: Disposal type of what? 24 A Diapers for adults. 25 THE COURT: You may go ahead, sir.

OFFICIAL COURT REPORTER AR3 I 9679 27

1 , DIRECT EXAMINATION

2 BY MR. HARRISON:

3 Q Good morning, Mr. Furl. If you could explain what 4 history you had, if any, related to the Drake Chemical site? 5 A As far as the Drake Chemical site, I went to work at 6 Drake Chemicals in September of 1974 and was employed there 7 until September, October of 1979.

8 And 'during my employment there I started as a waste 9 treatment plant operator and moved to a working foreman. And 10 when I left I was assistant production manager. 11 Q So you were assistant production manager in your 12 last capacity at the Drake Chemical Company? 13 A Correct. 14 Q Could you explain what your role was as the 15 assistant production .manager? 16 A Basically overseeing all operations of the company. 17 Q In that capacity did you have, occasion to become 18 familiar with the chemical manufacturing processes used at- 19 the plant? 20 A Yes. 21 Q All right. And I realize this may be complex, so if 22 you give me a brief explanation as nontechnical as possible 23 of what this company manufactured there and how it went about

24 ' it. . ' ' . ' - • 25 A Drake manufactured a large-variety of products,

OFFICIAL COURT REPORTER ft R '} I Q 6 8 0 1 mostly for the dye industry. 'However, .they also manufactured 2 herbicides for -- I/m trying to think -- Union-Car.bide was 3 probably their largest customer. that would basically give 4 you'. just ..an -overview pf...wha_.t .they made.

5 Q All right. Do you know some of the specific 6 chemical compounds used in their manufacturing process? 7 A In relation to what? 8 Q Well, let's talk about herbicides -- • . .9 .A In total? 10 Q -- the herbicide production. 11 A Okay. The herbicide production, basically that was 12 chlorobenzenes that was used. We also further chlorinated a 13 chlorinated benzenes, it is known as just chlorinated 14 benzene, and we chlorinated that again to make a 15- trichlorobenzene. That was used in the manufacture of the 16 herbicide that goes by the trade name of Fenac.

'17 . THE COURT: How do you spell- that?

18 A Capital F E-N-A-C. .

19 THE COURT: Okay. 20 A And that involved the use of monochlorobenzene, 21 trichlorobenzene. We also used cyanide in the manufacture of 22 that. So there was a lot of various components.

23 BY- MR. HARRISON: ' 24 Q • All. right. And was there any use or not of the 25 chlorinated 'phenols in your manufacturing process?-

AR3I968 1 A Yeah, this was a -- this is what it became through 2 the manufacturing process, we manufactured it into that. The * 3 actual chemical name for the Fenac herbicide was 4 2,4,5-trichlorophenol acetic acid. 5 Q All right. And did you have occasion during your 6 employment at the Drake site to make inquiries into whether 7 or not the manufacturing processes used there might lead to a 8 contaminant in the product of dioxin? 9 MR. BURNS: Objection, Your Honor, there's no 10 foundation; the witness is not a chemist. 11 THE COURT: What's your view, sir? 12 MR. HARRISON: I don't think the witness needs to be 13 a chemist as the assistant production manager to talk about 14 the production processes, the chemicals produced 15 intentionally and those produced accidentally. 16 ' THE COURT: We'll overrule the objection. 17 MR. HARRISON: Thank you, Your Honor.

18 BY MR. HARRISON: 19 Q Mr. Furl, do you recall the question? 20 A Yes. 21 Q All right, if you would answer. 22' A At the period of time that -I was employed, I agree 23 with the statement that was made I was not a chemist, but I 24 was very, concerned because there was a lot that I h.ad been '2S reading myself in various journals and so forth concerning

OFFICIAL COURT REPORTER 30

various. herbicides and health effects to it. And one of my concerns was the safety of the people that worked there.

And in investigation I understood that a lot of the laboratory analysis that we • did were run through what 'they call "a gas chromotography machine, and I knew that this was* designed to tell 'us how pure the compound was that we .made. So I started to learn more about the process and finding out what the other, as they were called, spikes would be coming out from the machine. And I, through .working with the lab

10 people and that, they were always glad for somebody to teach 11 somebody what they were doing. And what they were -- as I 12 came to find out from looking at these results from. these - 13 tests, that some of the by-products of the manufacture of 14 Fenac, when the product -was not 100 percent pure, the 15 remaining ingredients in it were a variety of chemicals and 16 the only two that really popped to my mind is 2,4-D, 17 dichlorophenoxy, and also -2, 4, 5-T, which as I came, to find 18 out, in searching the Merck Index and that, that was like 19 silvex was the compound. And these were unwanted waste 20 products. ..And this was a real- concern, 21 .Q ,Do you recall whether EPA took any position during 22 the early years of their investigation in the 1982- '84 23 period, to your personal knowledge , as to whether or not 24 dioxin would be expected as a- contaminant on this site?

25 A Yes.

OFFICIAL COURT REPORTER • • * AR319683 31

1 Q What position did EPA take, to your knowledge? " 2 A It's kind of a -- I'm trying to think of the best 3 way to explain this to you. In '83, in April of '83, because of the Super --of that site having became a Superfund site, 5 I was instrumental in organizing a citizens group to secure' 6 medical screening for the former employees of Drake, and also 7 to help at that point, EPA and the Pennsylvania -- as it was 8 known then was DER -- Department of Environmental Resources, 9 because they did not seem to be finding what we knew was 10 already there and were not aware of'the history nor of the 11 manufacturing processes. So we wanted to make sure that this 12 information was relayed to them so that the cleanup would be 13 done and be done properly. 14 So what occurred was is, one of the things and In 15 the statements that I made to Mr.-William Hagel, who was the 16 site coordinator for EPA, was warned him that there could be 17 dioxin present, there could be a lot- of other compounds, 18 another one which has some very adverse health effects which 19 was foeta-Naphthylamine, and he agreed and had consequently, 20 because of that, they began testing for dioxin on a certain 21 percentage of their samples that were being taken from the 22 site. 23 We also gave them the location qf the drums that were buried on the site, where they would find them, and

25 probably what 'they could expect to find in them.

OFFICIAL COURT REPORTER AR3I968U I Q All right. Thank you. Now,;I want to show you a 2 document which has been previously marked as plaintiffs' 3 exhihi-t ..number 1 and ask if. you. can" identify it. 4 - THE COURT: It's already been identified. -That's i S okay. = . ----_ :- - - ..-_-_-._::...... • .- - 6 MR., HARRISOW: I understand.

7 BY MR. HARRISON: 8 Q Just .ask if you have ever seen it before? 9 A Yes, I have. • 10 Q And do you recall the first time you saw it? 11 A Well, to be right honest about.it, no. I know it 12 was some years ago. 13 ' Q It was some'years ago? 14 A Yes. 15 Q I see* If you'll take a moment to look over the . 16 results. Do you see there that there are numbers given as 17 test results for dioxin sampling? 18 A Urn-hum. 19 Q And do you understand the quantities represented

20 there? ' . ' 21 A Yes. 22 Q Do 'those numbers surprise you? 23 A - No, they don't surprise me. And the main reason is 24- because that was one of our main concerns that it was on

25 site. - .

OFFICIAL COURT REPORTER AR3I9685 33

1 -Q All right. Now, Mr. Furl, did you have occasion in 2 your employment at Drake to become familiar with the waste 3 disposal practices at the site? 4 A Yes.

5 Q All right. And, in your opinion, if this level of. 6 contamination was found ac the locations indicated on exhibit 7 number 1 --

3 MR. BURNS: Objection, Your Honor. Are you finished 9 with your question, Mr. Harrison? 10 MR. HARRISON: No, the question wasn't finished. 11 'MR. BURNS: I'll let him finish. 12 THE COURT: All right, start it over.

13 MR. HARRISON: Yes.

14 BY MR. HARRISON: 15 Q Mr. Furl, if you -- based on-your experience at the 16 Drake site and your familiarity with their waste disposal 17 practices, given the information on this exhibit regarding 18' the extent of contamination on.the tanks, in the tanks, 19 drippings on the floor-, in the rafters, and so forth, . 20 assuming that this represents an accurate test, would you 21 expect that these same chemicals would be found in the soil 22 on the site? 23 MR, BURNS: Objection, Your Honor. 24 THE COURT: Now just a second. If you see defense 25 counsel rise just hold your answer until we see- whether it'sf OFFICIAL COURT REPORTER AR3I9686 proper for you to answer "the question. What is- the objection?

• - MR. BURNS: The objection is there's no foundation for the testimony that counsel is attempting to elicit. He's asking a question .that would properly be directed to an expert, who understands the behavior of dioxin in the environment, and there isn't any foundation laid for that kind of testimony here. . . MR. HARRISON: -Your Honor, I'm not attempting to 10 have this witness explain how" dioxin moves, through soil or 11 air or water in any technical sense. All I want to know is, 12 from this witness, based on how he knows waste was handled at 13 this site, and what he knows about chemicals found in one 14 location either being found or not, being found in another 15 location, whether he would expect this same type of 16 contamination in the soil. 17 • THE COURT: We'll sustain the objection. You may 18 ask another question.- 19 MR. HARRISON: All right,.

20 BY' MR. HARRISON: / 21 Q Mr. Furl, can you explain how Drake handled their 22 chemical waste at the site during your employment:? 23 MR. BURNS: Objection, Your Honor, that's an 24 ambiguous question. '25 THE COURT: What's your response to that?

OFFICIAL 'COURT REPORTER flR3!9687 35

1 MR. HARRISON: Seems clear to me, Your Honor. I 2 don't know his -~

3 THE COURT: It doesn't seem ambiguous to me either 4 so I'll overrule the objection.

5 MR. HARRISON: Thank you, Your Honor.

6 BY MR. HARRISON: 7 Q Mr. Furl, could you explain the practices used by 8 Drake Chemical during your employment to dispose of chemical 9 waste? 10 , A Yes. And to give a background, that is what I was 11 hired originally at Drake for was to be a waste treatment 12 plant operator, which involved a primary treatment of our 13 . waste before it was sent into the city sewer system. 14 And working as an assistant production manager and 15 in other positions within the facility, I worked with and 16 even actually made most everything that was ever made there 17 during that period of time. • 18 And basically the waste distribution would be, the 19 bulk of the waste would just go into the-open sewers, which 20 would go to a collection sump, which would be then pumped 21 into a rubber lined pond to be treated. 'And when I say 22 treated I don't mean a fancy treatment system, basically all 23 that we were required to do at the time was to neutralize the 24 acid in the waste so that it "would be acceptable to the 25 cityvs sanitary sewer system.

OFFICIAL .COURT REPORTER - fl-R '} I Q fi ft ft In the manufacture of the herbicides,- many of those wastes, as I've said.before, had the chlorinated

3 hydrocarbons, which were detrimental and .literally would eat 4 holes in the liners of our holding ponds. So those were not 5 sent into the sewers directly. Now, whenever there was a

6 spill or.a pipe broke, and believe me that was a common 1 everyday occurrence, it would go in those sewers, but

8 normally it-was drummed off. And in the case of the Fenac -- THE COURT: Normally it was what?

10 A . Drummed off. . THE COURT: You mean put into drums? 12 A Fifty-five gallon drums. '

13 THE COURT: All right.

14 A To which we tried to reclaim a lot of materials to

15 keep_ the cost of manufacture down.

16 The material was drummed off, taken to another

17 vessel, and we tried to reclaim the monochlorobenzene that we

18 used to strip the impurities out of the product with, those

19 ended up being called tar, because that's exactly what they

20 looked like, and they were very aromatic. They would cause

21 profuse tearing of the eyes, burning of the skin, the fuines

22 " from it. Those were put in 55-gallon drums and stored on the

23 site.

24 When they began to fill in the sludge ponds at thac

25 plant/ these drums were bulldosed right in and were covered

OFFICIAL COURT REPORTER AR3I9689 •37

.1 with the demolition debris.

2 BY MR. RARRISON:

3 Q All right, let me be clear. The drums of 4 accumulated waste were put into the pond on the site? 5 A Yes.

6 Q And basically covered over? 7 A. Yes. 8 Q All right. So in your opinion, from your experience 9 there, would you expect to find the dioxin contaminant: in the j- 10 soil at the Drake site? 11 A From the period of time that has went by, which has 12 been considerable -- and they were not put into plastic lined 13 drums or anything, they were just a normal steel drum, that 14 had always been my concern. And in discussions with Mr. 15 Hagel had --we had told him exactly where to look for. these 16 drums because the final product that was shipped by Drake, I 17 never suspected to be a major problem because I'm sure that 18 if it would have been Union-Carbide would have been very . 19 upset. So I was concerned about the waste product. That's 20 where I felt the' danger would be at. 21 Q All right. Do you recall, from your knowledge of 22 being an employee on the Drake Chemical site, whether there 23 were ever any explosions on the site?

24' A Yes. - ' 25 Q Do you recall the nature of the explosions?

OFFICIAL COURT REPORTER M „ 38

1 A Are we talking about . any particular explosion -- 2 Q" Any ones that .come to your mind. 3 A-- - --: because they were numerous. Q Not any particular, just as much as you can recall 5 about explosions.

6 A . In the manufacture of herbicides, it did cause us 7. one week and one Sunday to lose probably three quarters of 8 our plant. 9 Q Three quarters_of the plant? 10 A, Yes. It was a massive -- 11 • Q Was it a single explosion? 12 A It was a massive explosion, huge fireball in the 13 sky, spread contamination and acid waste and product waste , 14 all over the area. The fire companies that came to the scene 15 had a lot of their material damaged. 16 The ensuing fire probably wiped out three quarters 17 of the plant, I would imagine, that would be my guess. 18 Q So do I understand your testimony that the explosion 19 caused waste,to be spread all over the site? 20 " A Yes. And-also, in the -- with the --in respect to 21 the tars and so forth that we stripped off of the Fenac 22 compound, that material, the vessel that it was stored in, 23 somebody inadvertently, allowed a drum of mixed acid, which 24 was 50 'percent sulfuric and 50 percent nitric acid, to. run 25 into there, and consequently it decided to formulate another

•™™OFFICIA~L ™COUR T REPORTE-,.,„,R , AR3I969I 39

1 compound which was very explosive, took the top off and again 2 covered the site. It didn't do any damage to the plant 3 itself but it left a black residue all over the property, 4 Q I see. Do you have any personal 'knowledge of• 5 whether the substance phosgene was ever found or would be 6 found on the site?

7 A Yes. When I first started my employ there, it 8 had -- they were just discontinuing operations where they 9 used phosgene as a raw material. They'had ic in the, like a' 10 two ton oval cylinder that they used on site. 11 My memory does not -- I do not know what they were 12 making. I do know that the final steps of it was outdoors 13 because of the fumes. And my only knowledge of it at that 14 time was, when they said phosgene, I said, didn't they use . 15 that during the war, and, you know, yeah. 16 The cylinders were on site. • I cannot honestly state 17 what the disposition of those cylinders were. 18 Q I understand. Do you recall, from-your experience 19 at the site, whether there was any use or presence of a nerve 20 gas-like substance?. 21 A As far as the use, no, I''m not aware of any. 22 However, in -- when EPA submitted the reports from the NUS 23 Corporation of monitoring wells and soil borings that had 24 been done, I normally was in the habit of .going down each of '25 the compounds to try and see, you know, did we do this, make

OFFICIAL 'COURT REPORTER AR3I9692 40

this or didn't we, you know, because we weren't.sure of a lot of "things. We had a lot of strange names attached to some pretty nasty chemicals and it wasn't until after we weren't 4 employed there we found out what we were-working with.

'So I would always go down the list. And one of the soil borings or monitoring wells by our warehouse, I came across an odd chemical that I could not identify, to which I went to the Merck. Index to look it up and I was floored.at • that time because it said that it was a nerve gas, And I

10 thought, how did that ever get there. 11 Well, in further reading of the Merck's explanation,

12 it stated that it can be manufactured; and it gave the list

13 of the compounds that are-necessary, which were all present

14 at our plant, but that it can occur in nature by itself if

15 it's in a," like a .chemical soup, it can start to form

16 itself.

17 My first reaction was is I called Mr. Hagel of EPA

18' and asked him if he was aware of what he had found.

19 MR. BURNS: Objection, Your fionor, this is a

20 narrative response. It's not responsive to the question.

21 THE COURT: All right. What is your view about

22 that?

23 MR. HARRISON: Your Honor, 'I think that's a fair

24 objection and we can follow up with another question.

25 THE COURT: .Okay. It would be helpful because if

OFFICIAL COURT REPORTER AR3I9693 41

1 something --if there's a question asked which is 2 inappropriate, then there's an opportunity to object. But if 3 it's a narrative statement, then it comes out and it's too 4 late to object.

5 MR. HARRISON: I agree entirely, Your Honor.

6 BY MR. HARRISON:

7 Q So Mr. Furl, if you'll try to contain.your answer to 8 the precise question and then I can follow up if we need 9 additional information. 10 Now, in this particular case, following your inquiry 11 to determine that a nerve gas-like substance was present, did 12 you have occasion to follow up on that discovery with EPA? • 13 A Yes, I did. 14 Q And what did you do? 15 A I contacted Bill Hagel, the project coordinator for 16 the Superfund site. 17 Q With what result? 18 A Which result was to ask him, first of all, if he 19 knew what the compound was, which he had not examined every 20 little detail as he was accustomed to us doing. And-he said 21 no. And I explained it to him. His reply to me was, how did 22 it get .there. And I said, I have no idea. But I asked him 23 to be -- to let the people from NUS know exactly what was 24 there. 25 Q All right.

OFFICIAL COURT REPORTER Hfl n D o ^ 42

1 MR. HARRISON: We have nothing further from this 2 witness, Your Honor..

3 THE COURT: All .right. . You may cross-examine.

4 CROSS EXAMINATION

5 BY MR. BURNS:

6 Q Good morning, Mr. Furl.

7 A Good morning. -

8 Q Would you spell out for us the chemical name, of

9 Fenac? • .

10 A The .chemical name?

11 Q Yes.

12 A .... Do... you want the 2,4,5-tri C-H-L-O-R-O-P-H-E-N-O-L

13 acetic, A-C-E-T-I-C, A-C-I-D, acid.

14 Q Mr. Furl, do you know whether it's 2,4,5 or 2,3,6?

15, A As I came to understand, it can be all. It can

16 be -- I mean it was a mixture and we isolated specific ones.

17 2,3,6 was another isomer on that.

18 Q Of Fenac? .

19 A Yes.

20 Q Did you 'get this 'information' from the chemist who

21 .you were talking to about this information?

22 A This came from the chemist, -plus the information

23 that was available, even written literature that was there

24 * at --. in the office itself.

25 Q The portion of the name that .you just 'spelled out

OFFICIAL COURT REPORTER AR3I9695 43

1 was,'one of the portions was P-H-E-N-0-L?

-v 2 A Yes.

3 Q Do you know whether it's P-H-S-N-0-L or

4 P-H-E-N-Y-L?

5 A To the best of my knowledge it was P-H-E-N-O-L, and 6 I know there is a difference. I realize there is a big 7. difference in the name. 8 Q 'How do -you understand 'that difference? 9 A Basically it depends where the --on the molecule 10 itself, the chlorine is attached. 11 Q Does it have anything to do with the attachment of 12 oxygen on the molecule? 13 A That I can't answer. I 14 Q Do you know the difference between a hydroxyl group 15 and an acetic acid group? 16 A At this point in time, no, because I've not been' 17 involved with it for ten years. At one time I was -- I 18 understood the different aspects of that.. 19 Q Earlier you spoke about spikes in samples of Fenac 20 that were described 'to you as 2,.4-D and 2 r 4,5-T, is that 21 correct?

22 A Yes. 23 Q Would you spell out those names? 24 A 2,4-D would be 2,4-dichlorophenol and 2, 4, 5-T was 25 the -- trichlorophenoxy acetic acid. t OFFICIAL COURT REPORTER flR3!9696 44

.1 Q- What concentration in the Fenac was accounted for fay 2 these spikes? . . - . . 3 A Our, our standards for a good batch to be sent to 4 Union-Carbide .was that Fenac .must be 80 percent of. the isomer 5 that they wanted. . . 6 Q What isomer was that? 7, A And that would be either the 2,3,6 or the 2f4,5f the 8 phenol, not the phenoxy. And a lot of times our batches 9 would be, maybe 40 percent pure, 50 percent pure, and it would 10 all depend upon how the .process had been run. And then, in 11 all honesty, who had run.the process through, because we 12 nitrated it, and if it wasn't done properly, at.the proper 13 temperatures, we did not get the yield that we needed. 14 So as far as to answer your question, what the 15 spikes on there, it would all depend upon the purity. 16 Sometimes they were. There was occasions, one or two that I 17 ' can.think of, that we had a yield, the isomer we were looking 18 for was like 20 percent, and the other spikes, it' looked like 19 we were setting out to manufacture them. 20 Q You earlier described 2,4,5-T as something, I 21 believe you said, silvex?

22 A Yes. '23 Q Would you spell that for us, please? 24 A S-I-L-I-V-E-X, I. believe. .Silvex. I'm not the best 25 speller in the world some days with these names.

OFFICIAL COURT. REPORTER '45

1 Q What color was Fenac when it contained impurities? 2 A It would be orange, pale yellow to orange, depending 3 upon the amount of impurities. Pure Fenac would-be white. 4 Q Thank you. To your knowledge -was Agent Orange.ever 5 made at this site? 6 A To my knowledge, no. 7 Q You worked at the site from I believe you said the 8 middle of 1970s until, for about'a five year period, 'is that 9 right? 10 A Yes. 11 - Q And in your work with the citizen group, did you 12 have occasion to review production records for a larger 13 period than the time you 'worked at the site? 14 A Yes. 15 Q Couldn't a layperson observer looking at an impure 16 sample of Fenac that was orange in color mistake that for 17 Agent Orange? t . - 18 A Yes, and I can -- 19 Q Thank you. Are you aware of anything ever being 20 made for the government at the Drake site?

21 A No. 22 Q When you reviewed the Merck Index that you 23 referenced earlier with regard to the compound that was found 24 in the monitoring well? " ,

25 'A Yes.

OFFICIAL.COURT REPORTER AR3I9698 46

1 Q Based.on your reviewJof that, did you reach the 2 conclusion"that it would have arisen there as a result of the 3 chemical soup that was present in the lagoon?

4 A Yes, that was the explanation, that was the only-one 5 that could-be, because the compound itself, I had never seen 6 anything ever, being manufactured on that site by that name. 7- Q Thank you. Is there a common name for the term

8 phosgene that you used earlier? ..--_- 4 9 -A No. That's all I had ever known it by was just

10 phosgene.- .;.'..

11 Q Now, you spoke earlier about a concern that you

12 expressed to EPA about the possible presence of dioxins on-

13 the site.

14 .A Yes.

15 Q To your recollection did EPA act on that concern?

16 A Yes.

17 Q Do you recall what EPA's conclusions were?

18 A The conclusions. -- the- first conclusions were that

19 there was not dioxin present. When the dioxin task force

20 came through and took samples, then it was present. It was

21 present in the buildings but I have not seen any lab results showing any of the studies made as*.far as any of the debris

23 or anything that was dug up on the site, so I don't know

24 whether any was discovered there.

25 Q' I'd like to show the witness plaintiffs' exhibit

OFFICIAL COURT REPORTER AR3I9699 47

1 number 2.

2 Would you just take a moment and familiarize 3 yourself with that document 4 (Pause.) 5 Q Thank you. Do you recognize this document? Have 6 you seen it before? 7 A No. May I ask -- I don't-see a date on this. I 8 just -- just curious. I don't see a date. 9 Q We discussed the date yesterday and I believe 10 reached the conclusion it was a 1984 document. 11 THE COURT: That's not quite what Mr. Schrock said.. 12 He said it's probably 1984.

13 BY MR. BURNS: 14 Q Have you read this document sitting here .just now? 15 A Yeah, I've looked down through it. 16 Q In the --in the fourth paragraph under the heading 17 Analytical Data, the third sentence of that paragraph 18 beginning on the third line,' would you read that sentence. 19 aloud, please? 20 A (Reading.) A study of the data indicates no 21 indication of presence of 2,3,7,8-TCDD. in the soils and 22 sludges and also no anomalies in the data. (End of reading.) 23 Q Does that indicate to.you, sir, that EPA did examine 24- the site for the presence of dioxin in the soils and found

25 none?

OFFICIAL COURT REPORTER AR319700 48

1 A Yes, at that time, yes.

2 Q -Thank you. During your.work with.the citizen organization, did you have occasion to observe some file r cabinets, that were sealed in a building on the 'site? 5 A As you worded that, no. •6 Q ' Did you observe file cabinets on the site at all? 7 A Yes.' 8 Q Could you describe those, please? 9 A I had been on the site in contamination gear with 10 EPA^ and the file cabinets /that I saw on the site were files• 11 that were in.Mr., Dyon's (phonetic) office and in that area. 12 I was not in the trailer area. 13 Q Did you ever observe the contents of those file 14 cabinets? - 15 A" Yes. When they were removed from the site to the 16 Clinton County --it was actually at that time the civil 17 defense area where they also have their communications 18 center, ..that's where they were stored, and I was asked to go 19 through and to help copy all'of the documents there. 20 Q Had you reviewed those documents when you -- I'll 21 withdraw the question. 22 . Are you familiar with the citizen organization by 23 the name of. Arrest the Incinerator Remediation, Incorporated?

24 A '-Yes. - 25 " Q ^Have you ever been invited to join or otherwise

OFFICIAL COURT- REPORTER SR3I970 49

1 participate with this group? 2 A Yes.

3 Q Did you accept the invitation? 4 A No. . 5 Q Have you heard claims by people in the area that 6 Agent Orange was made at this site? 7 A Yes. 8 Q Based on your knowledge and experience at the site, 9 what is your view of-those claims? 10 A My personal view is that they're mistaken. I've 11 never, in all of my investigation and work with it, I've 12 never found any'direct link that says that they specifically 13 made, quote unquote, Agent Orange. 14 I can further explain why many people felt we did. 15 And that was basically because the employees from day one, 16 when we first started to make Fenac and that, it was orange, 17 another herbicide that we made, it was orange, and when there 18 was all the hoopla in the papers about Agent Orange but 19 nobody ever told them what Agent Orange was,, they just said 20 Agent Orange, so everything that was orange, everybody 21 immediately suspected of being that. 22 Q And so these people who worked at the site were 23 uneducated in terms'of the actual chemistry of the substances 24 being.made? 25 A . Many of them were.

OFFICIAL COURT REPORTER fl R 1 I Q 7 fi ? so

1 Q Many of them were?.

2 A Yeah, as far as the actual production workers 3 themselves." " - , ~ ." -~~"

4 Q "Based on yo'ur knowledge of the site and your 5 activities in the citizen organization that you were a part 6 of, ""do" you think the site should be- cleaned up without 7 further delay?. 8 MR. HARRISON: Excuse me. Your Honor. ,

9 THE COURT: Yes, sir.

10 MR. HARRISON: I believe that' s- outside the scope of 11 direct 12 THE COURT: What's your view about it? 13 MR. BURNS: Our 'view is. Your Honor, that the 14 witness has been asked about contamination present on the 15 site, and that's within the scope of direct, and he probably 16 has a view about the subject. 17 THE COURT: I've already heard you. I'm. about to 18 rule in your favor. • . . 19 MR. HARRISON: Thank you. Your Honor. 20 THE COURT: If you want to say something, I'll 21 listen to it.

22 <. MR'. HARRISON: That's fine. 23 THE COURT: I do think it's inappropriate and will 24 sustain the objection.

25 BY MR. BURNS:

OFFICIAL COURT REPORTER 319703 o j.

1 Q Mr. Furl, did you testify today voluntarily or were 2 you subpoenaed? • .. .

3 A , I was-subpoenaed. _. .

4 MR. BURNS: Thank you. I have .nothing further. 5 THE COURT: All right, sir, 6 Do' you have any redirect?

7 MR. HARRISON: Just a few points, Your Honor. 8 THE COURT: Go ahead.

9 REDIRECT EXAMINATION

10 BY MR. HARRISON: 11 Q Mr. Furl, you were asked on cross about the 12 concentrations of 2,4-D and other impurities in the Fenac 13 product. 14 A Yes. 15 Q And you identified some batches were substantially 16 impure? 17 A Yes. 18 Q Do you know what happened with those batches that 19 were impure? 20 A Those batches would have --.actually the impurities 21 would have been stripped out with monochlorobenzene'and would 22 have ended up in the 'drums of tar. 23 Q ' All right. . These were the same drums you testified 24 earlier eventually went into the pond on site?

25 A Yes.

OFFICIAL COURT REPORTER flR3i970f* Q All right. Now, you were asked whether Agent Orange' was manufactured at the site and you gave your answer. Is it your position that the employees were always informed by . management as to what was happening at the site in terms .of

5 chemicals used?

6 A . No.

7 Q So your answer is they were not always informed? A No, they were not.

9 Q All right. Did employees .ever take any action

10 against the company based in part on that concern?

11 A Yes.

.12 Q And what action was that?

13 A I'm trying to- think of the time frame. I'm going

14 back, reaching a little, I would say approximately 1975, I

15 was instrumental in organizing the plant and putting the

16" teamster's union in. '

17 • • And we filed various complaints with OSHA concerning

18' the product in the .manufacturing at the plant, to which OSHA

19 did respond. One .of our concerns was Sronner's acid, which

20 we manufactured, because in reviewing some of the literature

21 on Bronner's acid and looking at OSHA's standards, we

22 realized that beta-Naphthylamine and Bronner's acid were -- they looked very much alike. And we were concerned that

24 BNA -- I'm sorry, beta-Naphthylamine was being produced as a

25 by-product. •

OFFICIAL COURT REPORTER - AR3I9705 O J

1 Q .All right, let me .interrupt.' At that time was •"

J A NO. 4 Q Why not?

5 A It had been banned in the state back in the 1960s. 6 Q All right. Proceed with your answer if you had 7 more. S A Okay. To which OSHA said that there was a very good 9 possibility that this could be occurring, and that it 10 warranted further studies. And their answer to these further 11 studies in reality never came until after-the. plant was 12 closed. 13 Q So is it your conclusion -- what is your conclusion 14 about the possibility that there may have been contamiriants 15 in the products that the company did not inform the'employees 16, about? Could that have happened? 17 • A Yes. . 18 Q All right. Let me. show you the plaintiffs' exhibit 19 2 that you were just shown on cross, or do you have a copy

20 still? 21 A There's a copy still here. 22 Q If you'll examine that. If you'll direct your 23 attention to the first paragraph under the Background 24 heading?

25 • A Yes.

OFFICIAL COURT REPORTER AR3I9706 Q And if you would read that again for your own 2 benefit and for the record. "If'you'd read it out loud,

3 please? " " ~"~~ " • • • ,

.4 A Okay. (Reading.) Drake Chemicals was originally on

5 the reg;ion 3 dioxin' listing as a tier 6 site because of its

V ,6" listing is,the EPA.publication Dioxins. Information

7 available revealed that Drake Chemicals at one time

8 manufactured 2,5-trichlorophenol and therefore was -- {End'of

9 reading.

10 THE COURT: . Sir, I don't believe you read that

11 correct. It's 2,4,5.

12 A I'm sorry. (Reading.) 2,4,5-trichlorophenol.and

13 therefore was more correctly identified as a tier 1 dioxin

14 site. (End of reading.)

15 BY MR. HARRISON: . ' . .

16 Q Now, do you see the reference there that says Drake

17 Chemicals at one time, manufactured 2,4,5-trichlorophenol?

18 A Yes.

19 Q Does that surprise you?

20 A No,

21 Q So do you know whether in fact that occurred?

22. A I would believe that it had..

23 Q . All right.- -

24 A Mostly because there was a.lot of different -- so

25 many different isomers of that same product.

OFFICIAL COURT REPORTER AR3I9707 1 Q Now, on that same document, if you could pick it up 2 one more time, plaintiffs' exhibit number 2. You were 3 directed to the text referring to testing,for 2,3,7,8-TCDD. 4 Do you recall that?

5 A Yes, in the Analytical Data? 6 Q Yes, thank you, that's where that is in that 7 document. 8 Now, can you conclude from that paragraph -- you 9 were asked by counsel for EPA whether this seemed to indicate 10 that EPA had tested for dioxin and not found it. Does this 11 document, give you any indication of the, presence or absence 12 of the types of dioxins or furans other than 2,3,7,8-TCDD? 13 MR. BURNS: Objection, Your Honor, there is no 14 foundation for this question. The witness, again, is not a 15 chemist and tHis calls for specialized knowledge in the area 16 of chemistry. 17 THE COURT: Well, I thought it was, a question 18 relating to the document itself. I could be. wrong about 19 that. Read back the question, will you please? 20 (Question read.) , ' 21 THE COURT: I don't see that you have to be a 22 graduate chemist to answer that question, so I'll overrule 23 the objection. . - 24 MR. HARRISON: Thank you, Your Honor.

25 BY MR. HARRISON:

OFFICIAL COURT REPORTER RR3I9708 56

Q Do'you recall the question,. Mr. Furl, or should I restate, it? ...... _ - ...... -..„. _ .r_."."l.""... -l..."._'_.,......

A --Yes, I understand what you're saying. - ' What this document is saying that the 2,3,7,8-TCDD, that's what they looked "for-. That's what they didn't find,

but it doesn'-t.say whether they looked for the other forms of dioxin.. ' , Q All right. You were asked by counsel for EPA 9 whether.-- .or you were, asked about the filing cabinets on the 10 site and .how they were disposed of. Do you recall that? 11 A (Witness nods.) 12 Q Within your personal knowledge can you say with 13 certainty whether any of the documents retained on the Drake 14 site'during your tenure were ever classified by the federal, 15 government .or removed from the site? 16 . MR. BURNS: Objection, leading. 17 . MR. HARRISON: I don't know the answer, Your Honor. 18 . THE COURT: \I don't see that it's leading. I can't 19 tell whether he thinks it should be answered one way or 20 another. So I'll overrule the objection. You may-answer it,

21 sir. - - ' . - - 22 A .I'm not aware of any of them being, quote unquote, 23 classified by .anybody. I know there was' a problem because 24 our group also wanted the records off because -we didn't know 25 everybody that had ever worked there. And to get them

______. ______;______„——.——— OFFICIAL COURT REPORTER AR3I9709 57

included into a screening we had to have'access. And there

was a big question between the Department of Health, DER, and

3 i Environmental Protection Agency as are• these •- file• s--s • 4 ] contaminated, so forth, et cetera, but they eventually did go off site. - "

BY MR. HARRISON:

Q I understand. I.guess what I'm trying to get at is, do you know with your personal knowledge what happened to all the records that were on' the site at one point? Do you know 10 what eventually happened to them? 11 A To the .best of my knowledge all of .the files, that 12 were on site were taken and stored at the county facility.

13 Q r understand. But my question is, would you know if

14 someone removed some of those files? 15 A No.

16 Q t Okay.

17 MR. HARRISON: Nothing further, Your Honor.

18 THE COURT: Any recross?

19 MR. BURNS: Yes, Your Honor. I'll be very brief.

20 THE COURT: Okay.

21 RECROSS EXAMINATION

22 BY MR. BURNS:

23 Q Mr. Furl, going back to the file cabinet documents.

24 Isn't it possible that those were needed by EPA for its

25 investigation? .

OFFICIAL COURT REPORTER AR3I97IO 58

'•••1 A ' Yes, that's'entirely possible.' - 2 Q Did anyone at EPA ever indicate to you that that was 3- the nature.of their need .for the documents?

A I have been told by Mr. Hagelr that the documents -- because we were'concerned about getting -- basically all I was concerned about at that point in time was-getting a list of former employees. That was my main concern. „ Q Thank you. Did you in fact get access to those 9 documents.? ' - - - - -' 10 A , Yes. - 11 Q ' . Now, going back to the impurities in Fenac, we were 12 discussing earlier the -- there were a wide variety of 13 impurities, weren't there? It was not all 2,4-D and 2,4,5-T? 14 "A Correct. 15 Q - Can you define isomer? f 16 A " Right off -- no, I -- I'm not going to attempt it, 17 I understand it but I cannot explain it. 18' ' MR. BURNS: Thank you. I have nothing further. 19 THE COURT: All right. Before -- you may step down, 20 sir, and you may be excused. Thank "you very much, Mr. Furl. 21 I would ask both counsel this and you may not know * 22 the answer to it, but we'd like'you .to inquire about it. 23 We've received proposed findings of fact'from the government,. 24 which are substantial. I think they run -- let me get the 25 correct figure here -- well, at least ISO paragraphs. And

. ' . . . - :/./;;:::;::;"•;:::::-OFFICIAL COURT REPdRTE;R - AR3I97I i APPENDIX C

flR3l97!2 CLINTON COUNTY COMMRS ID = 71789340?^ JflNU'SS 12 :35 No ;001" P .02

ittMtrr KI c*NiTd*«u tews wttOL* b. MMNtTON WU f JUN K UK iww

Jwuwy 13, 1998

The Honorable Carol M. Browucr Administrtttcr Enviromntaal Protection Agency 401 M Start

dznimctxator I am writing to you conconlUK (be ongoing remediation or the Dmke Sup«fund site iu lick Haven* Pennsylvania. A* yoo ksww, at the i*que*r of Sen«tnr Rftntnnim and myselt; the Hnvironmantftl Ptx>tflcilon Agency's national ombudsman* Robert Martin, chaired 4 public meeting regarding the Drake Cbwnkal S^scrfuisl site

lingly,! rtqiiMt that no further cleanup activity occur at this Superfund site until the Environmental Protection Agency releases Mr. Martin's fna l report and all interested partie* sra able to analyze die recommendation*. Aa alwayv, I appreciate your prompt aisifttncc on this matter.

Sincerely,

AS/Vwn

SR3I97I3 APPENDIX D

AR3I97U UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460

The Honorable Alien Specter Committee on Appropriations United States Senate Washington, D.C. 20510-6025

Dear Senator Specter:

Your Letter to Administrator Carol Browner, dated January 13, 1998, requesting a delay in the operation of the incinerator at the Drake Chemical Superfund Site, was referred to us for a response. We wish to thank you for your inquiry and advise you that we have given your request priority consideration. However, after carefully reviewing all of the facts surrounding this matter we regret to inform you that we are not able to comply with the request to postpone the schedule set for operation of the incinerator.

Our decision to proceed with the Superfund process at the Drake Chemical Superfund Site is based on the best information available to us. As you know, Regional personnel have had substantial involvement in all aspects of this matter and are most familiar with risks associated with the operation of the incinerator. In November of 1997, the Region completed a risk assessment which evaluates the potential human health and ecological, risks associated with full- scale operation of the incinerator. This risk assessment indicates that there are no significant risks associated with the full-scale operation of the incinerator while it is destroying the highly contaminated soils and sludges found at the Site. The Region has released the risk assessment for public review, and the risk assessment has also undergone peer review by a panel of independent scientists. In addition, the Agency for Toxic Substances and Disease Registry (ATSDR) has reviewed the risk assessment, and indicated its preliminary conclusion that the remedial cleanup burn is not likely to create exposures to incinerator emissions which would result in adverse health effects. The draft Ombudsman's report, issued by Bob Martin, has already been reviewed. The Agency wishes to stress, however, that while it is proceeding with. the Superfund process, it still has not made its final decision to proceed with the actual incineration of the contaminated soils and it will consider all the above information, the results of the public meeting held on February 10, 1998, in Lock Haven, Pennsylvania, and consider any public comments before deciding whether it is safe to proceed with incinerating the contaminated Drake Site soils. '

AR3I97I5 Pintec & Zec-scted Pscer EPA's decision to proceed forward with the Drake Site incineration process does take - into consideration a review of iVfr..Martin's Draft Final Report on the Drake Chemical Superftind Site"(August'8,. 1997). Perhaps putting Mr. Martin's report in its proper context would provide sqme additional .background on Why it is undesirable to hold up the decision on start-up of the '. contaminated hazardous waste and Superfund soil burn at this point.

Mr. Martin is the Agency's Ombudsman. -This Ombudsman function was meant to augment the Agency's already significant commitment to community involvement in and access to the Superfund decision-making process. Most important, the communication function of the Ombudsman is not, nor was it ever meant to be, part of the critical path in the site cleanup decision-making process. Nonetheless, the Superfund program'vaiues the information provided by Mr. Martin, and believes that it has fully responded to questions raised in his draft report, and will continue to respond to any further issues raised by his office.

In the case of the Drake Chemical Superfund Site, Mr. Martin completed a draft of his Survey of community issues concerning the Site in May of 1997, We responded to the report and the questions raised in the report in June of 1997. These responses were provided to the public as well. It should be noted that many of .the issues documented in Mr. Martin's draft report had been previously addressed by the Regional office through other mechanisms, such as independent investigations and public meetings. The Region had also issued a Technical Assistance Grant to the community and with that grant money the community hired its own expert who was on Site throughout much of the trial burn stage of the incinerator project. Any issues raised by that independent expert were addressed during that phase-of the project.

As noted above, Mr. Martin issued his draft report nine months ago and we responded'to the questions raised. In September of 1996, EPA explained the results of its June 1996 risk assessment for the trial burn, at a public meeting in Lock Haven. At that meeting, Mr. Martin told members of the audience he would look into questions some raised at the meeting. In May of 1997 he issued his draft report From the time of that 1996 public meeting to the present, to the besr of our knowledge, Mr. Martin has not even interviewed or consulted with the key EPA or contractor personnel who are actually running the incineration cleanup project. We have requested that Mr, Martin hold a public meeting on bis report, both in an effort to close the loop on any outstanding issues regarding the operation of rhe incinerator and to avoid a misunderstanding that the final report is critical to the decision to start incinerating the contaminated soils at^the Site. We are now faced with a cleanup schedule that calls for a decision to start the actual remedial cleanup bum or not within the next few weeks.

You may recall that the original cleanup schedule for completion of the incineration of rhe contaminated soils at the Site was February 1998. For a variety of reasons, including endless litigation and die fact that the Agency wanted to address ail reasonable questions raised concerning .the safety" oFthe incinerator project, that schedule was act met. We believe that the operation and public health issues that have been raised about the incineration remediation

AR3197I6 project had been addressed and that the incinerator can be operated safely without harm to the public or the environment. We reiterate, however, that Mr. Martin's draft report raised no issue that we could discern which pertained to the existence oFa potential threat to the public as a result of the operation oFthe incinerator during cleanup oFthe soils. The Superfund decision making process For the ultimate cleanup oFthe Drake Site should not be delayed at this point because Mr. Martin's report is still considered a draft. OF course, once Mr, Martin's report is deemed complete, the Agency will carefully review it and take any appropriate^ action.

We are sorry that we cannot comply with your request at this time. However, should you have any questions regarding this decision, please feel free to contact us directly.

Sincerely,

TT Jj* * // // Ids, Jr. Acting Assistant Administ&tor Office of Solid Waste and Emergency Response

W. Michael MKCsbe Regional Administrator Reaion III

AR3I97I7