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As
Mr. Munro implies in his letter, the USEPA is
proposing to
address the current conditions, not to implement a permanent remedy
as required by CERCLA and the NCP.
USEPA is proposing to treat the symptoms without diagnosing
the illness. Although the NCP allows the phasing of remedies, phased
remedies are not intended to
develop a final remedy through trial and error.
CERCLA and the
NCP call for permanent remedies based upon good science; however,
that is not what is proposed for the instant site. The proposed
remedy as an iterative process was
presented by Ross del Rosario at the public hearing held by
USEPA. He suggested that if the proposed remedy didn't work as
anticipated, and a problem
was found during an unspecified "monitoring program" or the five
year review required for Superfund Sites where waste has been
left in place ( 42 USCA 96_, 40
CFR
300. ),
the agency would catch the problem then. This approach does not
reduce the volume, toxicity,
mobility and bioaccumulation of hazardous substances or maintain
protection over time or
prevent additional exposures of the offsite population to
hazardous substances as
contemplated by CERCLA. It merely responds to additional
releases of hazardous substances
after they may have occurred.
Since about 1994,
the PRPs have theorized that all of the offsite contaminants,
volatile organic compounds and heavy metals, are being naturally
attenuated. Further, they claim
that no cap is needed to address the residual waste mass in the
landfill itself. Based upon its significant knowledge of Ohio geology and the new
information gathered, and
its review of the existing record, Bennett and Williams hypothesizes
that the contaminants have
been flushed from the landfill into the downgradient ponds, streams,
wetlands and bogs, which serve as discharge points for
groundwater from the landfill.
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(See the Bennett & Williams report for detail.)
Depending on which theory is correct, the
final remedy for the site may differ.
Although the USEPA admits that it does not know what is
going on at the landfill,
it has proposed to accept the theory of natural
attenuation promoted by the PRPs and
base the final remedy upon it. The Geraghty and Miller
and Sharp and Associate reports
that the PRPs submitted to the Agency contain a good
discussion of the mechanisms of natural attenuation;
however, they do not provide sufficient empirical
scientific data to
demonstrate that natural attenuation is in fact
occurring at the site for both the volatile
organic and heavy metal contaminants. If the natural
attenuation is the correct scientific
explanation for what is occurring at the IEL Site, it
can and should be supported by
reliable substantive empirical data. To date, it is not.
Internal USEPA memoranda of Linda Kern dated July 1995,
Ross Del Rosario
dated December 17, 1997 and Mary Randolph, Ph. D. in
March of 1998 (which are in the
administrative record) discussing natural attenuation at
the IEL Site all indicate that
insufficient data exist to support the theory that
natural attenuation, capable of remedying
all of the hazardous substances at the site, is
occurring. Mr. Tom Shalala, a certified professional
geologist with the firm of Clayton Environmental,
experienced in Ohio geology, resides within one quarter
mile of the Industrial Excess Superfund Site. He
testified at the public hearings held by the USEPA
Ombudsman and the USEPA in
association with the proposed changes to the remedy that
the quantity, quality and nature
of the scientific evidence that the USEPA is relying
upon to adopt a natural attenuation
remedy at IEL falls seriously short of that generally
considered sufficient by the USEPA
and the professional environmental community (See
Ombudsman's transcript and
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USEPA transcript attached
as
Exhibits B and C, respectively and
incorporated herein).
Bennett
and Williams presents a comprehensive review
of the natural attenuation issue in
their report. They, too,
indicate that insufficient hydrogeological,
geochemical and microbial evidence exists to
support the conclusion that natural
attenuation is a proper
remedy,
even when accompanied by a cap. In addition,
the mistakes of fact made during
the site
characterization alter the assumptions
underlying the natural attenuation theory.
Bennett and Williams also explain that the protocols for determining
the viability and fact
of
natural attenuation at a site established by
the USEPA at its own Kerr Environmental
Research Center and suggested in the
relevant scientific literature on the issue
have not
been followed at IEL.
The expert opinions of Dr. Mary Randolph,
Linda. Kern Tom Shalala, James
Titmas (another local expert who testified
during the Ombudsman's Hearing) (See Exhibit
A) and Bennett and Williams all agree.
Others who offered public testimony
during the hearings also agree that the
record does not support natural attenuation
at the
facility. The site-specific conditions are
not conducive to natural attenuation and the
substantive evidence falls short of
demonstrating that the fluctuating
contaminant levels
are attributable to natural attenuation.
The members of the relevant scientific
community who have reviewed the data
submitted in support of natural attenuation
at the IEL Site have found mistakes of fact,
serious substantive flaws in the
methodologies used and a serious lack of
evidence supporting the theory. The theory
has not survived peer review. The PRPs'
claim of
natural attenuation falls outside the range
where experts might reasonably differ. Only
the PRPs and their experts believe that
natural- attenuation has been shown to be
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occurring at the site and that
it is sufficient to protect
human health and the environment
from the organic compounds and
heavy metals that have been
released from IEL. They stand to
save, literally, millions of
dollars from the proposed remedy
change. To adopt
natural attenuation as part of
the remedy at the IEL site based
upon the information
currently in the record will be
arbitrary and capricious and
contrary to law as no sound
science supports the decision
and, therefore, no rational
connection exists between the
site conditions and natural
attenuation.
Significant New and Relevant
Information.
During their review of this
matter, Bennett & Williams and
the Board of Lake
Township Trustees identified
significant new and relevant
information not currently in
-the administrative record,
which is included in the Bennett
and Williams report and the
comments of the Board of Lake
Township Trustees.
When factored into the site
characterization, this new
information significantly
changes the conceptual
understanding
of the site and requires
additional site characterization
before a final remedy may be
selected and designed. It is of
such significance that the USEPA
must reconsider its
remedy selection in its light.
(As the Board's investigation
continues, it will update and
amend these comments with any new information it finds.)
A.
Irrigation Wells
By way of example, Bennett and
Williams found in the public
records of the Ohio
Department of Natural Resources,
information regarding
groundwater production rates
for the two irrigation wells
located on the sod farm adjacent
to the landfill.
In the
remedial investigation and the
site characterization, these
wells were assumed to be
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nonproductive.They
are
not. This
new
information
significantly
alters the
hydrogeological picture of IEL.
The 1994 USGS report
indicates that
groundwater flow
from the IEL is
radial;
however it "quickly"
returns to the
regional east-west
flow. No one has
determined how
quickly.
That same report
assumed that the
irrigation wells
were not in use.
The
pumping rates of the
wells reported to
Ohio Department of
Natural Resources by
the well
owner rebuts this
assumption. In 1998
alone, the
irrigation wells
pumped 16.4 millions
of gallons of water
for irrigation! Any
conclusions drawn
from this erroneous
underlying
assumption are
likely incorrect.
Relying upon this
USGS report, the
USEPA determined,
for instance, that
the farms and land
to the east and
south of the
landfill were not
affected by the
landfill and would
not receive an
alternate water
supply. That
determination may or
may not be correct.
This new information
requires the USEPA
to reevaluate the
groundwater flow
patterns at the
landfill and
reconsider its
decision regarding
the extent
of the alternate
water supply.
As discussed in
greater detail in
the Bennett and
Williams report,
information
regarding the
irrigation wells
confirms the Science
Advisory Board
determination: new
background wells
must be installed
and integrated into
the groundwater
monitoring
system for complete
understanding of the
local groundwater
regime.
B.
Residential
Development of
Property to East and
South of Landfill.
The Board of Lake
Township Trustees
has recently learned
that farmland east
of IEL, adjacent to
the sod farm, has
been sold for
residential
development (See
Exhibit D
attached and
incorporated hereto)
The area is not
served by city
water. The area is
not in
the No Drill Zone
established by the
County Health
Department for the
landfill (see
Exhibit E),
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because
it was
previously
thought
to be
upgradient
of the
landfill.
To
protect
the
health
of the
people
who will
live in
this
development
and
drink
the
groundwater,
the
issue of
groundwater
flow
direction
to the
east and
south of
the IEL
Site
must at
last be
put to
rest.
The
impact
of the
pumping
of the
irrigation
wells
must be
determined.
If
,
contaminated
groundwater
is
pulled
eastward
by the
irrigation
wells,
the
groundwater
may not
be used
for
drinking,
irrigation
or any
other
purpose
as
exposure pathways through various environmental media will be closed.
The
design
of the
cap may
have to
be
changed
and an
alternate
water
supply
installed.
See
Bennett
and
Williams
report
for more
detail
on this
issue.
The
health
of the
residents
of the
area is
at
stake.
Indeed,
the
information
regarding
the
massive
pumping
of
groundwater
by the
sod farm
combined
with the
impending
residential
development
of land
east of
the
landfill
triggers
§ 118 of
CERCLA
which
demands
that the
USEPA
place a
high
priority
on this
site.
Failure
to
respond
to
this new
information
will be
arbitrary
and
capricious
and
contrary
to law
and
against
the
public
interest.
C.
Construction
of New
Stormwater
System.
In
addition,
the
USEPA is
hereby
advised
that the
stormwater
system
along
Cleveland
Avenue
and
elsewhere
in IEL
vicinity
is going
to be
upgraded
in the
next few
years.
Any
design
of the
remedy
at the
site
must be
coordinated
with the
county
engineer
and
other
agencies
involved
in this
endeavor.
Care
must be
taken
that the
new
stormwater
system
will not
compromise
the
Industrial
Excess
Landfill
in its
current
condition
or with
a cap in
place.
Conversely,
care
must be
taken to
ensure
that the
installation
of the
cap will
not
compromise
the
stormwater
system.
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Similarly, care must be taken to ensure that construction of either project will not damage or the other. More importantly, the potential exposure of construction workers to hazardous substances such as heavy metals and volatile organic compounds that have left the site and may have entered or accumulated in the existing stormwater system and the adjacent soils must be assessed and a worker health and safety program developed for a stormsewer construction workers.
The additional site assessment work recommended in the Bennett and Williams report must be completed before the storm sewer design is completed and construction is begun to identify what soils may be contaminated. Only in this way can USEPA prevent unnecessary exposures of the workers to hazardous substances, or volatilization of VOCs.
Community Involvement.
The USEPA has not provided the public with a meaningful opportunity to comment on the proposed remedy. First as set forth in Exhibits F and G, and H the agency did not provide adequate time in which to comment. More importantly, the USEPA did not provide sufficient detail on the proposed remedy. As set forth in the Bennett and Williams report, little detail - on the changes to the proposed cap was provided. Similarly, only general statements that a groundwater monitoring program that may include radiochemical parameters will be instituted, were provided. Conceptually the idea is fine, as is motherhood and apple pie. The key to providing an opportunity for meaningful public involvement as required by the NCP, is to provide sufficient details so the public can understand what is really to be done. Without reasonable detail on a proposed remedy, the comment period is meaningless. Public involvement is a cornerstone of the NCP and CERCLA. Failure to comply with the communit
Continue to Pages 13-19
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