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Bayer Corporation's Comments to EPA's Proposed Plan at the Himco Site

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Bayer Corporation's Comments to EPA's Proposed Plan at the Himco Site KIRKLAND 8, ELLIS LLP AND AFFILIATED PARTNERSHIPS 200 East Randolph Drive Chicago, Illinois 60601 Reed S. Oslan. P.C. To Call Writer Directly: 312 861-2000 Facsimile: (312)861-2166 312861-2200 [email protected] www.kirkland.com Dir. Fax:(312)861-2200 July 11, 2003 VIA HAND DELIVERY Gwen Massenburg (SR-6J) U.S. EPA, Region 5 OERR 77 West Jackson Blvd. Chicago, IL 60604 SUPERFUND DIVfSION REMEDIAL RESPONSE or RRB1 BRANCH »1 Stuart Hill (P-19J) U.S. EPA, Region 5 Office of Public Affairs 77 W. Jackson Blvd. Chicago, IL 60604 Re: Himco Dump Site, County Road 10 and the Nappanee Street Extension, Elkhart, Indiana Dear Ms. Massenburg and Mr. Hill: Enclosed are three copies of Bayer Corporation's comments to EPA's Proposed Plan at the Himco Site. Please include these materials in the Administrative Record for the site. Very truly yours RSO/ds Enclosures cc: Anne Lewis Joel Robinson Washington, D.C London Los Angeles New York San Francisco 4 7003 „. SUPERFUNO DIVISION REMEDIAL RESPONSE or RRB1 BRANCH #1 Comments Of Bayer Corporation To EPA's Proposed Plan At The Himco Superfund Site July 11,2003 Reed S. Oslan, P.C. Kirkland & Ellis LLP 200 E. Randolph Drive Chicago, IL 60601 312-861-2000 I. EXECUTIVE SUMMARY The Superfund program authorizes EPA to identify and address unacceptable risks to human health and the environment at contaminated sites. The program includes detailed statutory and regulatory requirements and EPA's authority is limited to that which is expressed in those requirements. The fundamental limitation on EPA's authority under Superfund is that it may only expend funds or propose remedies at sites where there is a demonstrated risk to human health or the environment. In connection with the Himco Superfund Site, a site EPA first listed on the National Priorities List in 1989, the data unquestionably demonstrates there is no risk and, only through violations of its own requirements has EPA rationalized its present remedy. The complete lack of data supporting any risk at or near the site means EPA's proposal is arbitrary and capricious and contrary to the law and EPA's authority under the Superfund program. EPA's present remedial proposal is not directed at any risk to health or the environment. Instead, it is the product of an intensive search by EPA to justify millions of dollars in expenditures at a site that requires no remedial action under CERCLA.1 While expending millions, EPA has still after multiple investigations barely found any contamination at or near the site, let alone a risk. Nevertheless, EPA is now proposing a $24 million remedy (plus a contingent remedy) to address at most a perceived risk. The present EPA stance is clearly inconsistent with EPA's own conclusions in 1992 in its first proposed plan that the Himco landfill did not pose any unacceptable risk to human health or the environment. At the same time, and in contravention of its own guidelines and procedures, EPA issued a 1993 Record Of Decision proposing an extensive remedy which at 1 Comprehensive Environmental Response, Compensation, and Liability Act, commonly referred to as the Superfund law. the time it estimated it would cost $12 million. In its present proposal for the site, EPA asserts that its 1992 proposal (which it has since abandoned) would actually have cost $27 million. EPA makes this assertion to support its newest wasteful and unnecessary proposal. The present proposal, as estimated by EPA, will cost $24 million plus contingencies. EPA's present position and conduct in connection with the Himco site strikes a familiar tone when considered in light of the failed EPA effort of 1992-3. Miles, Inc., predecessor of Bayer Corporation, and other parties presented detailed technical comments in 1992 demonstrating that EPA's proposed remedy was directed entirely at an implausible and non-existent "hypothetical" future risk and that it was arbitrary and capricious and contrary to controlling law. Also, in 1992, the PRPs petitioned EPA to delist the Himco site from the National Priorities List (NPL) as there is no basis for action under CERLCA at that site. EPA ignored the delisting petition (itself arbitrary and capricious conduct) and the comments made in 1992 and issued its 1993 Record of Decision (ROD), and selected its proposed remedy without any substantive change (1993 ROD remedy). With its latest proposal, EPA is abandoning its prior unsupported ROD. The bases justifying EPA's abandonment of its 1993 ROD, and underlying the delisting petition, have not disappeared but are equally applicable to the present plan. The legal barriers to EPA's moving forward with the flawed 1993 plan remain today and preclude EPA's present plan which, again, is not justified by any site risk or concern. In April 2003, EPA announced a new $24+ million remedial action plan (2003 Proposed Plan), presumably designed by EPA to represent a positive step in relation to the post hoc revised EPA estimate of the cost of the 1992 proposal. There can be no doubt that the present proposal, like the one before it, is also arbitrary and capricious, contrary to law and unsupportable under CERCLA. There is a lack of technical evidence that the Himco landfill currently poses or historically posed any risk to nearby residents or the surrounding environment, in spite of substantial supplemental site characterization (SSC) activities from 1995 through 2000, which EPA undertook at great additional expense. Instead, EPA should have simply addressed the PRPs delisting petition and acknowledgedthat the Himco Site should not be a Superfund Site. EPA has conducted extensive sampling and studies over a ten-plus year period and the results of those samples barely reveal any contamination at or near the site — no hot spots, no concentrated areas of contaminated soil, and no off-site contamination that can identified as having emanated from the Himco Site. The data confirms there is no risk and does not warrant EPA to implement any remedy under CERCLA. Indeed, after literally thousands of analyses of ground water samples, EPA has not found any well that has consistently demonstrated contamination above any health based level. Moreover, EPA has ignored its own background samples from up-gradient sources. A proper analysis of background would have further justified a no action proposal, or outright deletion from the NPL. It is also noteworthy that EPA elected not to conduct a risk assessment on certain landfill gas samples. Without such a risk assessment, EPA's proposal to spend many millions to actively collect landfill gas is plainly arbitrary. In fact, volatile organic compounds (VOCs) in soil gas do not pose unacceptable health risks to nearby residents. EPA also elected not to conduct a risk assessment on certain ground water samples from residential wells east of the landfill. Without such a risk assessment, EPA's proposal to spend over $1 million to connect 35 or more homes to the municipal supply is plainly arbitrary. In fact, VOCs in these water samples do not pose unacceptable health risks to residents. Since 1998 ground water quality down-gradient of the landfill has consistently met primary Maximum Contaminant Limits (MCLs), the standard of safety for public drinking waters. EPA's own health risk assessment demonstrates that concentrations of chemicals of potential concern (COPCs) in soils in residential parcels in the construction debris area (CDA) do not pose unacceptable health risks. In short, EPA's own data directly contradict its conclusions regarding a remedy. EPA is only able to make a proposal by violating its own procedures by failing to even consider the "No Action" alternative, as well as other alternatives. In failing to evaluate the No Action scenario, EPA remained silent regarding severe adverse consequences of its 2003 Proposed Plan that may be important to Elkhart residents in their consideration of EPA's proposal. Indeed, the current proposal may well cause greater harm than the No Action option, but EPA never even considered that as a relevant consideration. This alone calls for EPA's decision to be deemed arbitrary and capricious. On this point, EPA concluded in the Remedial Investigation (RI) that the prairie assemblages that have developed on the landfill site over the past 30 years are a regionally significant, ecological resource that should be preserved. The 2003 Proposed Plan would, however, destroy these prairie assemblages. This habitat loss would be long term and permanent. Yet, the 2003 Proposed Plan document does not mention or apparently consider this planned ecological destruction, contrary to EPA's guidance for remedy evaluation and selection. The 2003 Proposed Plan also would entail a substantial volume of truck traffic that would add to traffic congestion and noise and create additional risks to residents of vehicular accidents and exposure to diesel fumes and soot. Again, the 2003 Proposed Plan document does not even consider these potential issues as they relate to nearby residents, who now are unimpacted by the site. The "No Action" alternative would not pose these adverse impacts and, therefore, is more protective of the environment and public health than the 2003 Proposed Plan. The 2003 Proposed Plan is arbitrary and capricious, because the EPA failed to recognize that the Himco landfill does not pose any unacceptable risk under a reasonable exposure scenario and because it was not developed according to EPA's procedures for remedy evaluation and selection. EPA is attempting to exercise its authority arbitrarily and capriciously and in contravention of the law. EPA is attempting to justify over ten years of misdirected and wasteful effort and millions of wasted public funds by proposing an unnecessary and unjustified remedial plan. EPA's activities have done nothing to improve the environment and have only caused unnecessary public fear and concern.
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