To

To: INTERESTED PARTIES OF UNIONTOWN IEL SUPERFUND SITE 11/17/05

Re: LEGAL DOCUMENT SUBMITTED BY LAKE TWP. TO US EPA ON THE CLEANUP CHANGES PROPOSED IN 1999. What evidence was presented after this was issued that caused the Lake Trustees to override these very strong statements, both legal and technical? It is 6 years later, and the public still doesn't have this vital information, and Congressman Regula has told CCLT he is deferring to Lake Township concerning the Plutonium issue and other man-made radiation that could impact the area's water supply.

Not long after this document was sent to US EPA for formal comment, the Twp. did a 180 degree turn away from the legal and technical positions presented in this report. CCLT and others were stunned and mystified by the dramatic switch. Because this document makes a strong case that EPA was acting arbitrary and capricious, the sudden "flipflop" by the Lake Trustees after this report was submitted was very troubling. They didn't merely change their position. Trustee Ruley & her supporters began viciously attacking our citizens group and experts, bizarrely attempting to discredit us, ironically because CCLT maintained the same opinions put forth by attorneys and technical experts hired by the Trustees!,

Extremely puzzled, we wrote Sue Ruley, Twp. Trustee, seeking concrete evidence as to what caused her to suddenly embrace the polluters' and EPA's opinions. We asked whether she had new independent information that supported this switch. (She had been a big proponent of independent testing vs. the PRPS, even citing publicly Tom Grumbly's recommendation regarding double blind studies). ...Ruley's written reply indicated the Twp. Did not possess such evidence. We wondered, did it have anything to do with the Twp. being listed as a possible Third Party Defendant with the Army and others? When the Justice Dept./US EPA released its findings from an 8 month secret investigation into the former landfill owner, Charles Kittinger's Federal Court testimony of allegations of the government disposing Plutonium cores into IEL, CCLT obtained legal depositions of Mr. Kittinger's testimony. I

In these depositions, we believe we found additional clues into why the township may have gone the other way. The PRP's attorney raised several key questions about possible liability issues regarding the Twp, And local Health Dept., I.e, the lagoons built at IEL for liquid disposal and the permitting process. While such concerns regarding liability may exist, did it justify abandoning the technical advice put for by Bennett & Williams onbehalf of the Twp.? (NOTE: We believe the Bennett/Williams 1999 report included extremely serious concerns, including, but not limited to, whether LOW FLOW was properly implemented during sampling, that may have caused significantly skewed test results for metals, vocs and radiation - thus affecting the cleanup - because the 1998 test results were heavily relied upon in opening_:

the Record of Decision.)

And, if a potential liability existed, shouldn't Ms. Ruley and others have recused themselves regarding the IEL? Instead, they pushed their new agenda. Didn't this constitute a possible conflict of interest? A recent Repository article reported that the Tusc. Watershed may impact 13 counties. USGS indicated IEL drains toward the Tusc. The health of thousands of people may be at risk by what is buried in IEL. Yet, the Twp. even supported the sealing of 33 test wells, although the Monitored Natural Attenuation must rely on such test wells to tell what the contamination is doing at the site. The public has a right to know.

CCLT/IEL cc: DOJ, Scott Oelslager, Congressman Brown, public

COMMENTS OF THE BOARD OF LAKE TOWNSHIP TRUSTEES ON
THE PROPOSED CHANGES TO THE REMEDY AT THE

INDUSTRIAL EXCESS LANDFILL SUPERFUND SITE

Serious omissions of substantive evidence, mistakes of fact and_ substantive flaws in methodology exist in the administrative record supporting the proposed remedy. As a result of these mistakes, omissions and methodological flaws, the United States Environmental Protection Agency (USEPA) has failed to consider relevant factors and relied upon incomplete information in choosing the remedy for the Industrial Excess Landfill Superfund Site. No rational connection exists between the site conditions and the remedy selected. Its adoption without further site characterization and assessment of the short and long term potential for adverse effects to human health and the environment, including an epidemiological study, is arbitrary, capricious and contrary to law.

Promulgated under the Comprehensive Environmental Response, Compensation and. Liability Act of 1980, 42 U.S.C.A. 9601 et seq. (CERCLA), the National Contingency Plan ("NCP"), 40 CFR Part 300, is the set of regulations establishing the national procedures and standards for responding to discharges of hazardous substances at sites on the National Priorities List ("NPL" or "Superfund Sites"). The Industrial Excess Landfill Site located in Uniontown, Ohio, Lake Township, Stark County Ohio (IEL) is such a site. Indeed, pursuant to CERCLA § 118 (42) U.S.C.A. 9618) because the release of hazardous substances from IEL has resulted in the closing of drinking water wells, and, as discussed herein, may require the expansion of the alternate water supply, this site is high priority.

To fulfill its statutory duties and obligations at IEL, the USEPA must strictly comply with the procedures and standards set forth in the NCP during all phases of its response to the release of hazardous substances, including the remedial investigation, feasibility study, remedy selection, remedial design and remedial action. To do otherwise is contrary to law. In addition, any remedy selected by the USEPA must comply with applicable, relevant and appropriate requirements (ARARs) of state and federal law. In making a remedy selection decision, the USEPA must examine all the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choice made. Further, the agency must act in the public interest. U.S. v. Akzo Coatings of America, Inn., 949 F. 2d 1409,1424-1426 (6`^h Cir. 1991); In the Matter of Bell Petroleum Services,3 F. 3d 889, 904 (5`^h Cir. 1993); Minnesota v. Kalman W. Abrams Metals, Inc. et al., 155 F. 3d 1019 (8th Cir. 1998). If an agency fails to adequately study the nature and extent of the contamination problem prior to implementing a remedy, ignores warnings regarding the viability of a remedy, or denies the public a real opportunity to comment on a remedy, its remedy selection is arbitrary and capricious. Kalman W. Abrams Metals, Inc. at 1024. Similarly, relying upon an administrative record containing errors of procedure and serious omissions of substantive evidence is arbitrary and capricious. Akzo Coatings at 1425.

Site Characterization and Remedy Selection.

The national goal of the response process contained in CERCLA and the NCP is to select remedies that are protective of human health and the environment, maintain protection over time and minimize untreated waste. Remedies should eliminate, reduce, or control risks to human health and the environment. (40 CFR 300.430).

Remedial actions in which treatment permanently and significantly reduces the volume, toxicity, mobility and bioaccumulation of the hazardous substances is preferred over remedial actions not involving such treatment (42 CFR § 98621(b), CERCLA § 1221(b)). To accomplish these goals, the NCP establishes a procedure and program principles, including use of operable units, complementary phasing of remedies, and gathering site specific data that reflects the scope and complexity of the site problems being addressed. The key to identifying and selecting a remedy and meeting the program goals and principles is developing a conceptual understanding of the site and its environs. That is accomplished through a site characterization to determine the nature and threat to human health and the environment posed by hazardous substances and to support the analysis ^-and design of a remedy.

The site characterization is required to assess (1) the physical characteristics of the site (surface features, soils, geology, hydrogeology, meteorology and ecology); (2) the air, surface water and groundwater; (3) the waste and its propensity to bioaccumulate, persist and move in the environment; (4) exposure pathways through environmental media; (5) exposure routes such as ingestion, inhalation, absorption through skin and (6) other factors (40 CFR §300.430(d)(2)). The site characterization requirement is mandatory. Without it, a conceptual model of the nature, transport and fate of the hazardous substances cannot be constructed. Without a conceptual model of what has and is occurring at the site and its environs, site-specific remedial alternatives protective of local human health and the environment cannot be identified. Development of remedial alternatives during the feasibility study and, ultimately, the implemented remedy, must be fully integrated with the site characterization so that a rational

connection exists between the site conditions and the remedy selected. (40 CFR 300.430(e)(1)). In addition, the USEPA is required to identify applicable relevant and appropriate requirements (ARARs) related to the site and to incorporate them into the remedial design (42 U.S.C.A. § 9621(d), CERCLA §121(d)). To select a remedy without sufficient site characterization and supporting evidence confirming that the remedy will protect human health and the environment by permanently and significantly reducing the volume, toxicity, mobility and bioaccumulation of the hazardous substances, maintain protection over time and minimize untreated waste is contrary to law and arbitrary and capricious.

In this instance, the USEPA has not completed a site characterization sufficient to determine the nature, transport and fate of contaminants and to identify and select a remedy meeting the goals of CERCLA for the IEL Site. The report of Bennett & Williams (sent directly to the USEPA on April 12, 1999, to have been attached as Exhibit A hereto, complete with its accompanying Exhibits), presents a detailed discussion of the mistakes of fact, serious omissions of substantive evidence, flawed methodology and errors in scientific procedures found in the record. By way of example only, the geology and soils have been mischaracterized leading to incorrect assumptions relating to groundwater pH, the propensity of the soils to promote natural attenuation, contaminant fate, and transport and groundwater flow rates. True background wells have never been established, even though recommended by the Science Advisory Board. In some instances, including the 1998 groundwater sampling done by the PRPs, the detection limits used in laboratory analysis of water samples were above the Maximum Contaminant Levels (MCLs), the clean up standards adopted for groundwater.

The ATSDR in its Health Consultation on the 1998 groundwater data, criticized the 1998 data on this basis as well. It is impossible to establish that groundwater meets the MCLs if the analytical method cannot even detect contaminants in that range. If the geological and hydrogeological site characterization is flawed, all subsequent work based upon it and

the remedy selection will be flawed, putting the public health and the environment at risk.

Such is the case at IEL.

In the February 17, 1999 letter of William Munro, Director of the USEPA Region V Superfund Division (attached as Exhibit B and incorporated herein), the USEPA admitted that it does not know the transport and fate of the tons and gallons of hazardous substances that were disposed at the Industrial Excess Landfill. It does not know whether the hazardous substances have passed through the monitored area and are continuing to spread. It does not know if the hazardous substances have been completely diluted and dispersed. It does not know if the hazardous substances have been naturally attenuated. It does not know if the hazardous substances have accumulated at an undiscovered location. All that the USEPA does know is that the levels of hazardous substances in some of the offsite monitoring and residential wells may have decreased below the MCLs, for now. As discussed in the Bennett & Williams report, however, even this conclusion is unfounded. On the other hand, levels of hazardous substances at other monitoring wells have increased.

As a result of the incomplete site assessment and mistakes of fact and flawed methodologies, a conceptual understanding of what mechanism(s) is responsible for the changing contaminant levels in offsite monitoring wells does not exist. Without this knowledge, a proper site-specific remedy addressing those mechanisms, as contemplated by the NCP, cannot be developed.

Continue to Pages 6-12