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) R«cyci4d/R«cycU«« • Printed with Vagttifcto Oi Bas«d into on ft R -^ I ./ b 3 J FINAL RBfORT OH THB DRAXB CHEMICAL SUFBRIUND SITB APRIL 16, 1998 OfRCB Or THB OMBUDSlOUf OCTXCB OF SOLID WAflTB MfD 2M8ROBXCT RB8POHSB TJ. 3. BHVIROHMEOTAL PROTECTION AGBXCT HR3I9560 REPORT OH ^£B DRAKE CHEMICAL SUPERTUND SITB TABLE br CONTENTS s. PAGE NO, 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 SR3I956 - 2 - 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 AR3I9562 - 3 - 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. AR3I9563 ~ - - - 4 - 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