Comments of the Board of Lake Township Trustees

Posted by on Feb 18, 2014 in Letters | 0 comments

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.

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.

(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– 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 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 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), 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.

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 community involvement requirement is a violation of law. The agency must provide additional information on the proposed changes to the cap and the groundwater monitoring program and reopen the comment period, to comply with the public comment requirements of CERCLA. Failure to provide such an opportunity is arbitrary and capricious and contrary to law.

In addition, the responses of the — USEPA to the public comments must be specific. Statements that additional data will be gathered are insufficient. That is what the — USEPA did in the Responsiveness Summary to the 1989 Record of Decision. As discussed in the Bennett and Williams report, the — USEPA has failed to gather the promised information in the ten years following the ROD. Responses must contain complete explanations of what information will be gathered, the protocols to be followed, and a timetable in which the work is to be completed.

Radioactivity.

A longstanding issue that remains unsettled in the eyes of the citizens of Lake Township is whether the radioactivity detected at the land fill has been adequately investigated and will be properly addressed in the proposed remedy for the site. A number of sources of this radioactivity have been identified. As discussed in the Bennett and Williams report, the flyash disposed at the site by Firestone and other PRPs is a likely source of some radioactivity. Any remedy adopted for the site must consider not only the transport and fate of heavy metals in the flyash, but the possible radioactivity as well. We understand that a number of Superfund Sites were listed on the basis of flyash content alone.

[sic] liable under CERCLA. Why the — USEPA will not rely on the sworn testimony presented by former employee of IEL, James Shover, and neighbors of IEL is unknown.

The testimony of Mr. James Shover, Mr. Rex Shover, Lizette McGregor and Harlan McGregor is a relevant factor in determining how to characterize and remedy the site with respect to radioactivity. To ignore all of this information in developing a remedy is arbitrary, capricious, contrary to law and not in the public interest.

Additional information regarding potential disposal of military and radioactive waste at IEL was gathered by Mr. Timothy Kern, Chief of the Environmental Enforcement Section of the Ohio Attorney General. He spoke to Robert Simons, Ph.D. (800)296-7053, an expert in the class action lawsuit filed by local landowners (DeSario –et al. vs. Industrial Excess Landfill, Inc., et al.., Stark County Common Pleas Court). Dr. Simons advised Mr. Kern that during discovery in that lawsuit he saw documents that indicated that radioactive waste had been taken to landfills by the military in the Stark County area. Unfortunately Dr. Simons did not specifically recall the identities of the landfills. The Board of Township Trustees received a copy of the inartfully drafted request for information the — USEPA issued to the defendants in that lawsuit requesting copies of documents produced to Dr. Simons to follow-up on Simons’ statement. Not surprisingly, the defendants provided no information. No documents would have been produced to Dr. Simons as he was not a party to the action. Counsel for the Board of Lake Township Trustees will make themselves available to assist the — USEPA in preparing a well drafted request for information to obtain this information. Even without the specific documents, Dr. Simons’ testimony tends to corroborate the testimony of Rex Shover, James Shover, Lizette McGregor and Harlan McGregor.

The — USEPA must plan and implement a scientifically sound investigation of the IEL Superfund site to determine the nature, scope and extent of radioactive contamination there. All environmental media, air, water and soils, should be tested for its presence. The consultants and all laboratories used must be experienced and competent in such work. Strict protocols and QA/QC procedures must be developed and enforced. Selecting and designing a remedy for this site that does not address radioactivity is arbitrary and capricious and contrary to law and not in the public interest. The site remedy must address radioactivity.

Hydraulic Control of Groundwater from IEL.

The 1989 record of Decision listed two reasons for the pump and treat remedy: treatment of the contaminated groundwater and separation of the waste mass from the groundwater. The Board of LakeTownship Trustees has found nothing in the record indicating that separation of the waste and ground water is not still a concern. Without some sort of hydraulic control of the landfill, what will prevent groundwater from coming into contact with the waste, or slugs of contamination from the waste mass from entering groundwater and moving offsite? The administrative record indicates that the cap will serve this function; however we question this conclusion as the landfill does not appear to have sufficient walls into which to tie a cap. The administrative record provided in support of the proposed changes to the remedy does not include information sufficient to address this very important question. A CERCLA remedy must prevent movement of hazardous substances from the landfill. Accordingly, it will be arbitrary capricious and contrary to law for the — USEPA to design and install a cap without some hydraulic control of groundwater.

Health Concerns.

In response to continuing inquiries from citizens and concern for the health of the public, the Board of Lake Township Trustees gathered all the information that it could regarding the incidence of cancer in Uniontown, near IEL. Admittedly, the survey (to date) is completely unscientific and informal; however, its results, in light of the new information regarding local hydrogeology and geology, are important. Attached as Exhibit K is a copy of correspondence from Elaine Panitz, PhD, who is on the faculty at Princeton University, identifying cases of cancer, many near IEL. At least three of them rare. This information was previously submitted to the ATSDR; however nothing was done to investigate. In addition, we spoke to Mrs. Darlene Lansing, R.N. who has informally gathered cancer incidence information. Mrs. Lansing shared with the Board of Lake Township Trustees, the numbers, kinds and street locations of cancer that she has documented She declined to provide victims’ names on privacy grounds. Care was taken not to double count cases. The health information presented in the two public hearings were also included. (See the public hearing transcripts, Exhibits B and C.) Exhibits L and M, attached hereto are the results. Exhibit L is a list, by cancer types, of the numbers of cancer cases and the streets on which they have occurred. Exhibit M is a map of the area with the streets with cancer incidences highlighted. Three areas of the map have what appear to a layperson, high incidences of cancer: directly west of the landfill, southwest of the landfill and northeast of the landfill. Based upon the information contained in the Bennett and Williams report, each of these areas may have a closed exposure pathway through environmental media.

According to Bennett and Williams, the ponds and soils in the marshy areas west of the landfill may be receiving areas for heavy metals and other contamination from IEL. As depicted on the various wetlands maps in the Bennett and Williams Report, Krieghbaum Road abuts a marshy area. Timberlake and Leafland are low areas and – circle natural ponds. All of these areas appear to have a significant number of cancer cases. The majority of members of a family on Krieghbaum Road that ate strawberries from a patch in the marshy area, have all been afflicted with cancer. (Exhibit K) Children also played in the marshy areas. Thus the exposure pathway of ingestion, inhalation, absorption, may have been completed in this area. This area has already been supplied with an alternate water source, however that installation may not have completely disrupted the exposure pathways from all environmental media.

Southwest of landfill on Mulberry Street, Dogwood Street, Heartwood and Basswood is another area with what appears to be a significant number of cancer cases. Mrs. Lansing advised the Board of Lake Township Trustees that in the 1970’s she lived in this neighborhood. According to Mrs. Lansing, whenever a hard rain came, Metzger Ditch overflowed down the street, into the yards and gardens. People eat the vegetables from their gardens. Children play in yards and mud puddles. Whatever went into Metzger Ditch from IEL was flushed into this neighborhood. According to the testimony of Kenny Catlette, a former employee of the landfill, trenches were cut from the waste lagoons at the landfill to Metzger Ditch (See Exhibit N). In addition, he saw leachate from the side of the landfill enter Metzger Ditch. Exposure pathways appear to be closed in this neighborhood as well.

A third area of cancer appears to be northeast of the landfill in the Nutmeg, Sesame and Foxfire area. While hydraulically up gradient of the landfill, this area is downwind of it, as prevailing winds in the area blow from the southwest to the northeast. During the time that the landfill operated, this area. may have received airborne contaminants such as flyash and landfill gases such as methane, vinyl chloride and benzene. They may still be exposed to fugitive emissions of uncontrolled landfill gases and emissions from the incineration unit installed to bum landfill gas. Nothing exists in the record that the incineration of the gases results in 100% destruction of the gas. Analytical results do show that methane, benzene, vinyl chloride and radon are in the landfill gases. Exposure to some of these hazardous air pollutants at even at very low levels is dangerous. Any of the contaminants in groundwater can be volatilized and leave the landfill in the gas stage. For example, arsenic in groundwater can be volatilized as arsine gas. (Telephone conversation with Elaine Panitz) Landfill gases and flyash can be inhaled or ingested, closing the exposure pathway.

As discussed in the Bennett and Williams report, during the operation of the landfill, it is likely that hazardous substances were leaving its boundaries in the groundwater and air. Those plumes of volatile organic compounds and heavy metals may have dispersed, may have moved on or may have accumulated somewhere. No matter which, the people of the township may have been exposed to them. They are a potential source of the cancer identified in the informal Health Survey. Insufficient identification and investigation of the exposure pathways in all environmental media has been done for this Superfund site.

The Health Consultations completed by the ATSDR have only looked at the future risk to public health presented by the landfill based on current contaminant levels found in ground water. Nothing has been done to complete a health status survey or screening program to determine relationships between past exposure to toxic substances from IEL and illnesses in the area pursuant to CERCLA § 104(i)(1)(E), § 104(i)(6)(B). No epidemiological studies have been conducted. No training has been provided to the local medical community regarding the IEL. The Board of Lake Township Trustees requests that this be done.

Additionally, the — USEPA should conduct additional air, soil and plant matter sampling as appropriate, to determine whether hazardous substances still exist in those areas and whether exposure pathways in any environmental media are closed, based upon the new information contained in the Bennett and Williams report and these comments.

Applicable Relevant and Appropriate Requirements.

Although environmental permits are not required for CERCLA remedies conducted by agencies, compliance with underlying requirements is. Nothing in the record indicates that the — USEPA has identified and provided for compliance with ARARs at the site now and under the proposed remedy. (Exhibit 0 is a list of the Ohio ARARS that may be applicable to the site.) The agency must ensure that each applicable ARAR is identified and that compliance with the ARARs is designed into the remedial action. Although the PRPs continually refer to the site as a closed municipal solid waste landfill, that terminology is misleading. The fact of the matter is that the site received almost a million gallons of liquid hazardous waste, such as spent solvents and other industrial waste, some of it after RCRA was enacted, for which it was not permitted.

The landfill gas collection and incineration systems is subject to Ohio air pollution laws. The gases being collected by the system contain hazardous air pollutants, including for example, benzene and vinyl chloride. Accordingly, the system must comply with the Ohio Air Toxics Policy. A copy of that policy is attached as Exhibit P. Similarly, the emissions from the incinerator stack should be periodically tested to determine the percent of destruction. Mechanisms must be put in place to ensure continuing compliance with MAGLC emission limits.

–In addition, Ohio’s new water antidegradation rules and wetland preservation laws may apply.

The — USEPA’s failure to identify and implement ARARs for the landfill gas collection and incineration system over the last 12 years is arbitrary and capricious and a violation of law. Continued failure to identify and comply with ARARs is an abuse of discretion and contrary to law.

CONCLUSION:

As set forth in these comments and the accompanying Exhibits, including the Bennett and Williams report, mistakes of fact, serious omissions of substantive evidence and substantive flaws in methodology exist in the administrative record the — USEPA has developed for the proposed remedy. In addition, significant new relevant information has been provided in the Bennett and Williams report and these comments. As a result the — USEPA has failed to consider all relevant factors in selecting the proposed remedy.

The new information is of such significance that the — USEPA must reconsider the proposed remedy in light of it. Finally, the — USEPA has failed to comply with various provisions of CERCLA and the NCP, which are legally binding upon the agency.

Adoption of the proposed remedy without taking the steps discussed herein and in the Bennett and Williams report to cure the defects in the administrative record will be arbitrary and capricious and contrary to law. This additional work is necessary to ensure that the proposed remedy is supported by good science and is compliant with CERCLA and the NCP and is in the public interest.

Ten years have elapsed since the initial record of decision was issued for the site, yet some of the data gaps noted in 1989 still remain. To stop this site from languishing even further and to prevent additional flushing of hazardous substances from the landfill and further degrading the environment of Uniontown, the — USEPA must adopt and comply with a strict six month schedule in which to complete the additional site characterization work. Without the additional work, a site-specific remedy cannot be developed. In addition, the Board of Lake Township Trustees recommends that a competent, reliable consultant who is trained in and familiar with the local geology and hydrogeology, be engaged to supervise the fieldwork and interpretation of the data and otherwise monitor the work to assure its completeness and quality, two things which have apparently been missing throughout the history of this site. The citizens of Lake Township deserve no less.

 

FRANK J. CUMBERLAND (#16758)
Kaufman & Cumberland Co., L.P.A.
1500 Republic Building 25 Prospect Avenue, West Cleveland, Ohio 44115-1000
(216) 861-0707

 

EDDA SARA POST, (#9652)
Kaufman & Cumberland Co., L.P.A.
1500 Republic Building 25 Prospect Avenue, West Cleveland, Ohio 44115-1000
(216) 861-0707

 

Counsel for the Board of Lake Township Trustees, Stark County Ohio

 

EXHIBIT LIST

A. Bennett & Williams Comments on the Existing Public Record for the Industrial Excess Landfill for Revision of the 1989 Existing Record of Decision

B. EPA Ombudsman Public Hearing, held on January 25, 1999 in Uniontown, Ohio C. Industrial Excess Landfill Superfund Site, Public Meeting held on March 2, 1999

D. Deed of Luther J. and Bonnie L. Price, Grantors to A.J. Lockhart dated at the Stark County Recorder’s Office – May 1, 1998

E. No Drill Zone

F. Letter dated January 20, 1999 from Edda Post to David Ulrich and Denise Gawlinski G. Letter dated March 29, 1999 from Edda Post to David Ulrich and Denise Gawlinski

H. Letter from Joi Ross of TetraTech EM, Inc. to Carolyn Casey at the Lake Township Office dated February 18, 1999

I. Affidavit of Rex Shore dated February 2, 1999

J. Affidavit of Lizette and Harlon McGregor dated April 9, 1999

K. Letter of Elaine Panitz, Ph.D. to Thomas Grumbley dated July 25, 1992 L. List of Cancers

M. Map of Area

N. Testimony of Kenny Catlette dated May 31, 1984 at Lake Township Government Offices O. Ohio Universal ARAR’s

P. Air Toxic Policy of the Ohio Environmental Protection Agency

 

ADDENDUMS

1. Statement of the Board of Lake Township Trustees

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