scm chemicals report - arar analysis ...scm arar submission (march 1996) 0000183 applicable or...
TRANSCRIPT
ATTACHMENT 1SCM ARAR
Submission(March 1996)
0000183
APPLICABLE OR RELEVANT AND APPROPRIATEREQUIREMENT ANALYSIS AND COMPARISON
OF PREDICTED IMPACT OF REMEDIALALTERNATIVES FOR THE MINING RESIDUALS
by: SCM And Other PRPs For The SCM PlantMarch 1996
TABLE OF CONTENTS
Page
I . INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II . EXECUTIVE SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
III. THE EPA's TENTATIVE POSITION CONCERNING THE LONG-TERMREMEDIAL ACTION FOR THE SCM SOURCE AREA . . . . . . . . . . . . . . . . . . 6
IV. THE ARARS ASSESSMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A . Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
B. Superfund Pre-Empts TSCA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
C. Superfund Remedy Selection Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . 9
D. EPA's ARAR Guidance, TSCA Regulations, And RCRA GuidanceRequires A Site-Specific Analysis At The SCM Plant . . . . . . . . . . . . . . 15
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2. TSCA Regulations Are Not Applicable . . . . . . . . . . . . . . . . . . . 16
3. EPA's TSCA Regulatory Requirements Relating To The MiningResiduals Pile and The RCRA Standard Cap Design Are NotRelevant and Appropriate Requirements At The SCM Plant . . . . . 18
V. NOT ALL COMPONENTS OF A STANDARD RCRA CAP ARE SUITABLEFOR THE CONDITIONS ON THE SCM PLANT . . . . . . . . . . . . . . . . . . . . . 21
A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
B. The Components of RCRA Standard Cap (Alternative IV) And AlternativeRCRA Cap (Alternative II) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
1. Standard RCRA Cap Design (Alternative IV) . . . . . . . . . . . . . . . 22
2. Alternative RCRA Cap Design (Alternative II) . . . . . . . . . . . . . . 23
C. The Reasons That Certain Components Are Not Necessary . . . . . . . . . . . 24
VI. COMPARISON OF ALTERNATIVES II, IV, AND V FROM SECTION 6 OFTM-3 AND ONSITE AND OFFSITE DISPOSAL OF PCB CONTAMINATEDSOIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 7
A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
B. All Three Alternatives Satisfy the ROD'S Primary Objective for SurfaceRunoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
C. The Exposure Through Groundwater Pathway, If Any, Is Millions OfTimes Lower Than The Drinking Water Standard . . . . . . . . . . . . . . . . . 28
1 . Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 8
2. A Summary Of The Conceptual Model Used To CompareAlternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 8
3. The Chemical Fate And Transport Model Used To Evaluate theAlternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4. The Site-Specific Values And Maximum Exposure AssumptionsUsed In The Conceptual Model For Alternatives II and IV . . . . . . 31
5. The Site-Specific Values And Exposure Assumptions Used ToCompare The TSCA Landfill To Implementation of An AlternativeII Cover Over The Mining Residuals Pile . . . . . . . . . . . . . . . . . 34
6. The Site-Specific Values And Exposure Assumptions Used ToCompare The Onsite and Offsite Disposal Of the PCBContaminated Soil . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
7. Results From The Fate And Transport Model In The VadoseZone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
a. Migration Through Lacustrine/Till To Fields Brook(Pathway 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
b. Migration Through The Bedrock To The Ashtabula River(Pathway 2 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
8. Results Of Migration From TSCA Landfill . . . . . . . . . . . . . . . . . 37
9. Results Of Disposal Of PCB Contaminated Soil Onsite On TheMining Residuals Pile and Offsite In A TSCA Landfill . . . . . . . . 38
10. The Risk Assessment Sensitivity Analysis . . . . . . . . . . . . . . . . . 38
11. Comparisons Of Alternatives II, IV, and V . . . . . . . . . . . . . . . . . 39
12. Comparisons Of Onsite Disposal of PCB Contaminated Soil OnThe Mining Residual Pile Versus Offside Disposal In the TSCALandfill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
D. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
VII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 4
I. INTRODUCTION
This submission is provided to the Environmental Protection Agency ("EPA"),
on the administrative record: (1) in response to specific questions raised in the Letter from
Edward Hanlon, EPA, to Joseph Heimbuch, DeMaximis, Inc. (January 30, 1996) ("Jan. 30
Letter") concerning the "applicable or relevant and appropriate requirements" ("ARARs") for
the SCM plant operable unit ("SCM Plant" or "SCM Site") at the Fields Brook Superfund site
("Fields Brook Site"); (2) as further analyses for Alternatives II, IV, and V in Section 6 of
Technical Memorandum-3 ("TM-3"); (3) to demonstrate (pursuant to the Toxic Substance
Control Act, "TSCA" guidance, using a site-specific risk assessment) the acceptability of leaving
the Polychlorinated Biphenyls, ("PCBs") in the SCM mining residuals pile in place; (4) to
demonstrate that even pursuant to TSCA Alternative n would serve as the performance
equivalent of a TSCA landfill given the unique site conditions; (5) to assess whether a standard
or site-specific Resource Conservation and Recovery Action ("RCRA") cap is required; and (6)
to assess whether disposal of the PCB contaminated soil currently temporarily stored onsite must
be disposed of at an offsite TSCA landfill.
The remainder of this submission consists of: (1) an executive summary (Section
H); (2) a summary of EPA's position (Section HI); (3) an analysis of the ARARs that must be
attained (Section IV); (4) a discussion of the reasons that a standard RCRA cap is not required
(Section V); (5) in a comparison of the impacts of Alternatives n, IV, and V from TM-3 and
a comparison of the impacts of the disposal of PCB contaminated soil onsite on the mining
residuals pile and offsite in a TSCA landfill (Section VI); (6) other public policy considerations
favoring Alternative H (Section VII); and (7) a conclusion (Section
IL EXECUTIVE SUMMARY
The submission summarizes the law and policy defining "applicable or relevant
and appropriate" requirements (" ARARs") which may be used at the SCM Plant and then applies
the ARARs and the Superfund remedy selection criteria to this specific site.In summary, the ARAR analyses concludes that:
* the PCB regulations do not requite a Resource Conservation and Recovery Act("RCRA") standard cap, therefore, the RCRA cover regulations cannot be "applicable."
* EPA has repeatedly stated in Superfund and TSCA guidance, policy, and preambles thateven where TSCA is an ARAR, EPA would select a Superfund remedy based on a site-specific risk assessment and the balancing of the Superfund remedy selection factors.
* EPA must determine on a case-by-case basis whether a RCRA standard cap or the TSCAlandfill requirements are "relevant and appropriate."
* At the SCM plant site, there are several layers in a standard RCRA cover that are notnecessary based on site-specific conditions and EPA regulations and policy, particularlythe National Oil and Hazardous Substances Pollution Contingency Plan ("NCP").
The primary method of comparing the various alternatives herein relies uponmodeling the PCB concentration at the point where leachate which may migrate horizontally and
laterally from the bottom of the pile enters the groundwater, using a simple, one dimensional
screening chemical fate and transport model (see Gradient Corporation, Comparative Ev^^on
of Subiurface pQ) frfierarinn for SCM Mining Residuals; pile Cover Alternatives And Soil
Placed On the Pile (March 1996) ("Gradient Comparative Report"). This simple screening
model is the same type used by EPA to assess when hazardous waste may exit the regulatory
system and used by EPA to assess the fate of PCBs at Superfund sites. A simple modelemploying many "extreme-case" assumptions was selected rather than attempt to predict realistic
PCB travel times and PCB concentrations because the PCS concentrations predicted were so low
that the cost of developing a more accurate model was not justified nor necessary.
The model: (1) used actual site data where available (as opposed to generic
national values); (2) used very health protective assumptions likely to overestimate PCB
concentrations; (3) assumed the FCBs are randomly located in the pile; (4) for the assessment
of the impact of the existing pile, assumed that the PCBs leach from the bottom of the pile as
an infinite source; and (5) did not include the travel time and decrease in concentration that
would occur if the PCBs were to migrate horizontally and laterally from the point the leachate
might enter the groundwater to the point where it enters either Fields Brook or the Asbtabula
River. This model uses BPA-derived, parameters values (£»&., the soil water partitioning
coefficient and the biodegradation half-lire based on HP A Superfund PCB site cleanup guidance).
If more realistic assumptions or a more detailed model were used, the
concentration predicted would be significantly lower. The impact of the uncertainty of the
model parameters was assessed in a sensitivity analysis. This screening analysis has multiple
layers of health protective assumptions and overpredicts the actual concentration which any
human being might be exposed to via the groundwater pathway by factors of millions or more.
Our analysis demonstrates conclusively that there is no biologically meaningful difference in the
risk between Alternatives n, IV, and V (except for the low transportation and incineration risks
associated with alternative V).
The comparison of the impact of the implementation of Alternatives n, IV, and
V and onsite and offsite disposal of PCB contaminated soil concluded that:
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The predicted maximum PCB coacentration in leachate entering groundwater at a pointin the center of the pile after more than 32 thousand years (6 x 10" ug/L) would beone triUionth the level deemed "safe" for drinking by EPA (approximately a 10*1* risklevel — ten orders of magnitude below the lowest Superfund risk goal,
No one is ever exposed either to this leachate or groundwater (since the volume of wateris too low for domestic use), therefore, the risk if non-existent. The estimated PCBconcentration would be substantially decreased as it migrated horizon tally and verticallyin the groundwater beneath the site and either: (1) migrated to Fields Brook and furthermixed with the surface water in Fields Brook, the Ashtabula River, and eventually LakeErie; or (2) migrated through the bedrock to the Athtabula River and eventually mixedin the water in Lake Erie. Thus, the PCB concentration in water (If any) and,therefore, the rick would be decreased by many orders of tnagnfrniU before anyonemight be exposed.
Even more significant than the absolute minimal magnitude of the impact if Alternativen were to be chosen is the fact that the difference between predicted PCB groundwaterconcentrations from Alternative H versus a standard RCRA cap (Alternative IV) is sominuscule that it can only be detected in the twelfth decimal place.
If the mining residuals pile were excavated and disposed of in a TSCA landfill, thepredicted maximum PCB concentration which would leak out of the bottom of the fourfoot landfill liner would be 10*" ug/L (assuming the same amount of PCBs leaches outof the bottom of the pile as was assumed in the assessment of Alternative II). Thisconcentration is not meaningfully different from the concentration estimated forAlternative n (except in the thirteen decimal point).
If the PCB contaminated soil currently being temporarily stored at the plant were locatedat the top of the approximately 15 foot mining residuals pile, it would take 103,000 yearsto migrate to the bottom of the pile. The concentration of PCBs in the ieachate enteringthe Lucustrine and till layers was estimated to be 10" ug/L (essentially thirty-four ordersof magnitude lower than the concentration deemed sale for drinking water). Thisconcentration would reduce to 10** ug/L (forty-five orders of magnitude lower than thedrinking water standard and a lO^risk level, forty-six orders of magnitude lower thanthe 10* Superfund lowest risk management goal) as it migrates through the maturatedzone to the groundwater.
Therefore, the amount of PCBs that leaches from the top of the mining residuals pile togroundwater is not significantly different than the concentration that would migrate fromthis same material if it were disposed of in a TSCA Landfill and effectively at a zero risklevel.
The costs of Alternatives n, HE, IV, and V, onsite di*posal of PCB contaminated soil andoffsite disposal of PCB contaminated soil using the EPA costing manual are $2.2 million,
S3.2 million, $12.3 million, and $81.6 million, respectively (see TechnicalCommits. ttvTVrMffl? McinorandllTn 3 (March 1996)).
The more realistic cost estimates are $2.6 million, S3.9 million, $15.6 million, and$101.7 million, respectively. Similarly, the cost of cmsite disposal of PCB contaminatedsoil on the mining residuals pile is much lower than the cost of offsite landfilling of suchsoil.
• Excavation, transportation, thermal treatment, and redisposal of the mining residual pile(in compliance with all environmental safety laws) is likely to result in additional risks,probably higher than presented by Alternative n.
Therefore, one must conclude that:
• Alternative H in TM-3 is consistent with the NCP.
• Alternative n is the performance equivalent of a TSCA landfill (with a standard RCRAcover), given the unique conditions at the SCM plant.
• Although TSCA is a potential ARAR, these regulations do not require disposal in aTSCA landfill or use of a standard RCRA cap given the site-specific circumstance*.Rather these circumstances mitigate the risk from the PCBs and support the choice ofAlternative n.
• For disposal on top of the mining residuals pile, onsite disposal is as protective asdisposal offsite in a TSCA permitted landfill.
• There is no meaningful environmental benefit to the additional $10.1 to $ 13.4 million fora standard RCRA cover or the additional $77 million in costs for treatment and disposalin an offsite landfill. Similarly, there is no meaningful environmental benefit to theincreased costs between onsite disposal of PCB contaminated soil in the residuals pile andoffsite disposal in a TSCA landfill.
• By any definition, a standard RCRA cap design, treatment of the soil and residuals pile,and disposal of the pile at a TSCA landfill is ngfthfic relevant and appropriate nor cost-effective and, therefore, is inconsistent with RCRA, TSCA, and the NCP.
This submission extensively cites EPA guidance and policy to assist in the review
of the analyses and because it should expedite the review of this submission to use methodologies
and regulatory determinations previously used by EPA. Additionally, an agency muse follow
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its own interpretation of statutes, its regulations, its guidance, and policy.1 Thus, if EPA
ignores the overwhelming weight of its own guidance in its remedy selection (without a well
reasoned and explicitly articulated scientific justification), such a remedy selection is arbitrary
and capricious and inconsistent with the NCF.
IIL THE EPA'g TENTATIVE POSITION CONCERNING THE IjQNCVfERMACTION FOP TR. ™CE
EPA's comments (including its seeming preference for a remedial alternativeJ
which includes a standard RCRA cap) is based on the following assumptions and reasoning (see
Section HI, infra, for a discussion of the validity of EPA's ascumptions and the faults in their
reasoning):2
• The SCM plant is "regulated" by TSCA and the remedy selection mustfollow TSCA substantive and procedural requirements.
• The site contains large areas where the concentrations in soil or filter cakeexceed 50 ppm.
• The average concentration of PCBs in the mining residuals pile is greaterthan 500 ppm.3 \
• The soils in the waste pile are a "principal threat."
• Any soil or filter cake (L&, nonliquid solid PCBs) containing greater than50 ppm of PCBs is regulated by TSCA (if it is not present on a Superfundsite).
• Nonliquid PCBs (such as PCB contaminated soil and the PCBcontaminated filter calce) may only be infilled or incinerated (or
1. Tanneco Oil Co. v. Department of Energy. 475 F. Supp. 299, 317 (D. Del. 1979).
2. Sa alaa Letter to William Schildt, SCM from E. Hanlon, EPA (January 10, 1996) andLetter to J. Heimbuch from E. Hanlon, EPA (January 30, 1996).
3. As described below, this assertion made at the 9/22/95 meeting is not correct.
disposed of by a method determined by the Regional Administrator to bethe equivalent of either of those two methods of disposal) (sgg 40 C.F.R.§ 761.60)(a)(4)).
• TSCA is an ARAR for contaminated material containing PCB atconcentrations greater than 50 ppm.
• EPA's TSCA guidance requires the use of a RCRA cap for a TSCAlandfill, therefore, the cover at the SCM site must be at least as stringentas a RCRA cap.
• EPA would be required to approve a significantly less stringent cover forthis site than is required by the regulations.
• There is no flexibility in the TSCA landfill regulations.
• There are no other TSCA or Superfund sites where soil, filter cake orsome other nonliquid containing greater than 500 ppm of FCBs wassimply covered with ten inches of soil and they were concerned about theprecedent.
As described below, most of these assumptions are wrong and/or site-specific
circumstances require more reasonable, cost-effective alternatives.
IV.
A.The following is an analysis of whether ARARs require: (1) a RCRA standard cap
to be selected as part of the remedy; (2) treatment of the PCB contaminated soil and mining
residuals; and (3) disposal of the soil and mining residuals in a TSCA landfill.
ARARs do not dictate or require the selection of a RCRA cap, treatment, or
disposal in a TSCA landfill for the soil and mining residuals at the SCM plant. Superfund, not
TSCA, applies at the SCM Plant (as Subsection B, infra).
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The Superfund remedy selection is based on a balancing of the Superfund criteria.
EPA guidance requires a site-specific technical evaluation to determine whether a requirement
is an ARARs. The last section applies the criteria to the tacts of this site and determines
whether ARARs require selection of a particularly remedial alternative or TSCA requirement,
A separate analysis (provided in Sections VI and VH, infra, and in Gradient
Comparative Report) will assess whether these technical alternatives should be selected because
they are the best overall remedy given a weighing of the Superfund remedy selection criteria.
As is overwhelmingly demonstrated below none of these requirements is necessary to protect
human health and the environment.
B, rfi,ind
There is no dispute that several portions of the Site, including portions of the
mining residuals pile contain FOB concentrations greater than 50 ppm ( the average is 293 ppm).
Also, the soil and filter cake are nonliquid PCBs.
However, the SCM plant is pan of the Fields Brook Superfund Site.4 As a
matter of law, Superfund preempts TSCA (see further discussion below).5 It is EPA's "long
standing" position "based on a theory of implied repeal or peremption," that "CERCLA response
actions are not independently subject to other laws, " which obviously includes TSCA.6 The site
4. See Record of Decision, Fields Brook Superfund Site, Ashtabula, Ohio (1986) ("ROD").
5. See discussion infra.
6. National Oil Pollution and Wa?rflous Substances .Contingency Plan. 56 Fed. Reg. 8,666,8,742 (1990) (Final rule) ("1990 NCP").
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will, in fact, be cleaned up pursuant to Superfund (either through an administrative order,
consent decree or by EPA if the PRPs and EPA cannot agree).
In upholding the NCP from challenge, the Court of Appeals for the D.C. Circuit
summarized the scheme as follows:
CERCLA provides an overarching framework within which the federalgovernment, states, and PRPs can respond to hazardous waste releases. Thestatutory scheme is meant to transcend artificial geographical and legaldistinctions in order to facilitate remedial action, SfiE&gw 42 U.S.C. § 9621(e)(no federal, state or local permits required for actions taken under CERCLA),9621(d)(2) (requirements of other environmental laws become ARARs for actionstaken under CERCLA), 921(d)(4) (EPA may. waive the substantive requirementand other environmental laws for actions taken under CERCLA),7
Thus, other environmental laws can only be legally binding at a site, if they are
found to be ARARs (ses fuller discussion of ARARs below).1 All other arguments concerning
whether TSCA has jurisdiction are only relevant to the question of whether the RCRA cap
requirements are "applicable" requirements and, therefore, they are only discussed below in that
context. The only issue that needs to be decided is whether the response action is consistent
with the NCP.
C. Supcrfup4 Kg'nyfo Selection Criteria
The remedy at the SCM plant must be selected pursuant to Superfund's remedy
selection criteria. A site-specific remedy selection decision pursuant to the NCP is based on a
weighing of the nine Superfund criteria fl.e.r protection of human health and environment,
compliance with ARARs, long-term effectiveness and permanence, short-term effectiveness,
7. State of Ohio v. U.S. Env't'1 Prot. Agency. 997 F.2d 1520, 1549 (D.C. Cir. 1993),
8. 1990 Preamble, supra note 6, at 8,742.
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reduction in mobility, toxicity, or volume of the hazardous substances implementability, cost,
State preference, and local citizen preference).9 On a case-by-case basis, the criteria are
"balanced in a risk management judgment as to which alternative provides the most appropriate
solution for the site problem."10 (emphasis added)
ARARs are requirements of other laws that may be "applicable" or "relevant and
appropriate11 requirements for a CBRCLA remedial action.11 Under the statutory structure,n[o]verall protection of human health and the environment and compliance with ARARs (unless
a specific ARAR is waived) are threshold requirements that each alternative must meet/12
Human health and the environment can be protected by containment, treatment
or a combination of these approaches. It is now well established in EPA policy and law that
"safe" is not necessarily the same as "risk-free/ and mere exposure is not sufficient to support
regulation unless there is a significant risk.13 EPA has concluded that 104 risk level is "safe"
at Superfund sites,14 for drinking water nationally,15 pursuant to the Clean Air Act,16 in the
9. 40 C.F.R. § 300.430(e)(a).
10. 1990 NCP, Supra note 6, at 8,700.
11. Se£ CERCLA § 121(d)(2)(A). Sfifi alSQ notes 37 and 40, i
12. 40 C.F.R. « 300.430(f)(l)(I)(A). See also Sfrte of Ohio. 997 F.2d at 1531.
13. Industrial Union Dep't. v. API. 448 U.S. at 642; fJRDC v. EPA. 824 F.2d at 1164-65,supra note 92.
14. 40 C.F.R. I 300.430(e)(2(i)(A)(2); National Oil Pollution^ Ua«frimi« SubstancesContingency Plan. 56 Fed. Reg. 8,666, 8,752 (1990) ("NCP"); Qhio v. EPA. 997 F.2d at1549.
15. Prinking Water. National Primary nritilritip Water Regulations-Synthetic OrganicChemicals and Inorganic Chemicals: National Priory nrinfcinp Water Bftyiilatinns
(continued...)
underground injection control program,17 and in numerous other EPA and other Federal
regulatory decisions." As a practical matter, technical feasibility, costs, and other factors
regularly result in a risk level higher than 10* being accepted. The "average'1 level of residual
risk considered acceptable by Federal agencies in regulatory actions is approximately 10"5.18
13. o.. continued)Implementation. 57 Fed. Reg. 31,776, 31,797, 31,816, 31,843 (1992) (final rule). Forexample, EPA's drinking water regulations state that 0.2 parts per billion ("ppb") ofbenzo(a)pyrene in drinking water (the 104 risk level) "is associated with little to none of ...[the] risk [from high levels of exposure] and should be considered safe with respect tobenzo(a)pyrene.'1 Id. at 31, 843.
16, NfltiQnaJ ^*T">5.iQflLStan*jfT1ds for Wa^yriquy Ajr Ppl|ptfint8i Bcpggnfi EfflJMJP^SComical Manufacturing PyfKCtf Vents. Industrial SPJYSnt Use. Benzene Waste Operation.TtenTffle. Transfer Operations, and CfostfinP MPrfa?t'ng System. 55 Fed. Reg. 8,292, 8,299-8,300 (1990) (final rule) ("Final Benzene Rfigs."); Natural Resources Defense Council v.
, 824 F.2d 1146 (D.C. Cir. 1987).
17, S_ec, Underground Injection Control Prograp*' ^ATfljjous Waste. _Dispqs^l InjectionRestrictions: Amendments to Technical Requirements for r,l̂ \ ffyardous Waste InjectionWells: and Additional Monitorin^Requirements Applicable to all Class 1 Wells. 53 Fed.Reg. 28,118, 28,123 (1988) ("UIC Regs.")-
18. EPA, Tfttional Emission Stand^s. far Hazardous Air Pollutants: Bqnacne Emissionsfrom Mflleiq Anhydride Plants. EthylfrfinffifnE/Styrene plants. BfliKPg Storage Vessels.
(1988) (proposed rule) ("Proposed Benzene Air Regs."); Wilson & Crouch, Risk Assessmenta$f Comparisons: An Introduction. 236 Sci. 267 (1987) ("Wilson"); Travis & Hattemer-Frey, pgtfir^jnjng an Acceptable Level of Risk. 22 Env't. Sci. Tech. 873, 875 (1988)("Travis*); Travis, Richter, Crouch, Wilson & Klema, Cancer JRisfc Managen]ffit; A Reviewof 132 Federal Regulatory Decisions. 21 Env't. Sci. Tech. 415, 419 (1987) ("Cancer RiskManagement").
19. Travis, supra note 18, at 875; £gg also. Cancer Risk yanaf ement. sjffiQ note 18, at 419;Final Benzene Regs., supra note 16, at 8,299-8,300.
The so-called Superfund preference for a 10* risk level "does agi reflect a
presumption that the final remedial action should attain" a 10"* risk level.20 In fact, the TSCA
Office's new spill cleanup policy requires cleanup levels which are between Itt* and 1CT6 risk
level.*
There is "nothing in section 121 to suggest that selecting permanent remedies is
more important than selecting cost-effective remedies."21 EPA has repeatedly determined that
treatment of soil is "generally inappropriate or unachievable,23 "can often lead to remedies that
are not cost-effective and that in some cases may actually be less protective solutions,"24 "may
provide only marginal environmental benefits,"15 and "may be practical only for 'hot spots'
where soil is highly contaminated with organic constituents/26 EPA's existing PCB disposal
20. 1990 NCP, sujsa note 6, ai 8,718 (emphasis added).
21. PolychlorjiffltH iftphenyls SpiU Qc^up Policy- 42 Fed. Reg. 10,688, 10,695-10,698(1987) ("PCB Cleanup Policy") states that the residual risk of the cleanup levels is between1Q-5 and 1C"7. EPA changed the cancer slope factor from 4.0 (mg/kg/day)-l to 7.7(mg/kg/day)-L However, HP A has proposed that the cancer slope factor for lowerchlorinated PCBs is 0.3 (mg/kg/day)"1. See PCBs: Cancer Dosa-Responae As«tnrnKflt AndApplication To Environmental Mixtures at 41-42 (NCEA-W-OS9, Jan. 1996). Therefore, therisks using EPA's proposed cancer slope factor are approximately 1Q4 to 1C4.
22. State of Ohio v. U.S. EnvTt Prot. Agency. 997 F.2d. at 1532.
23. 1990NCP, aiaa 6, at 8,760-61.
24. National Oil «nri ff^itfoig Substance Pollution Contingency Plan- Applicability ofRCRA ^tfflffr Pimosal Restrictions to CERCLA PjflPQnffi Actions. 54 Fed. Reg. 41,566,41,567-68 (1989) (notice).
25. &
26. 1^4 Djmyal Restrictiona fLDRal For Newlv Identified and Lisfgri Hazardous WastesSoilT 58 Fed. Reg. 48,092, 48,129 (1993) (proposed rule). Sfifi
(continued..
guidance and proposed PCB Disposal rule also allow low level PCS contaminated soil and other
wastes to remain at a site as long as human health and the environment are protected from an
unreasonable risk.27
Wastes "can be reliably contained over a long period of time through the use of
engineering controls."" EPA expects to use "treatment to address the principal threats posed
by a site, wherever practicable" and "engineering controls, such as containment, for wastes that
pose a relatively low long-term threat/29
As noted by the Court of Appeals for the D.C. Circuit, remedial actions selected
by EPA must be cost-effective, i^, the costs of the remedy must be proportional to its overall
effectiveness.30 If several altematives are "comparably 'effective'" in terms of the
effectiveness criteria, "the least-costly of the comparably effective alternatives would be
identified as cost-effective while the others would not. "31 If two or more alternatives are
determined to be comparably effective, the "least costly of the alternatives would be selected as
and .Distribution
26. (.., continued)
Under Subtitle Cr 58 Fed. Reg. 8,658, 8,660-61 (1993) ("CAMU Rule).
27. See Pigpoffll Qf-Polychlorinated Bipheny^s: Manufacturing, Pfrcessiin Commerce: Proposed Decision on Exemption Petitions: Proposed Rules. 59 Fed. Reg.62,788, 62,862 (1994) (proposed rule) ("Draft PCB Disposal Rule").
28. Id. at 8,701.
29. See 40 C.F.R. § 300.430 (a)(l)(iii), cited in A Guide to Principal ThreaiLand Low LevelThreat Wastes at 1 (OSWER Directive 9380-.3-06FS, 1991) ("Principal Threat Guide").)
30. 1990NCP, SUES note 6, at 8,729. §« 42 U.S.C. § 9621(a), (b).
31. Id- at 8,728.
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the cost-effective solution."32 Even if the effectiveness is not identical, but the difference is
"small but the difference in cost is very large, a proportional relationship does not exist."33
For example, the 1st Circuit Court of Appeals upheld the District Court's denial of EPA's cost
recovery claim, based upon the determination that reducing the PCS clean up level from 50 ppm
to 20 ppm amounted to "very high cost for very little extra safety" and, therefore, the thai
judge's finding that the remedy was not cost-effective should be upheld.34
A decision to select a health protective containment remedy would be consistent
(and any other decision would be inconsistent) with the broad direction of Superfund and the
TSCA cleanup policy which is moving "towards increased consideration of containment as an
appropriate remedy for many sites. "u In fact, EPA's Administrator recently announced that
the Superfund program would make more "common-sense; cost-effective [remediation]
choices"than in the past.36
Thus, EPA must decide on a case-by-case basis: (1) what ARARs, if any, must
be attained by the remedial action at this site; and (2) whether there is an exemption or case-by*
32. M- at8,727.
33. Id.
34. U.S. v. Ottati & Goat. Inc.. 900 F.2d 429 (1st Cir. 1990) (opinion by now SupremeCourt Justice Breyer).
35. Memorandum from Elliott P. Laws, Assistant Administrator, Office of Solid Waste andEmergency Response, and Lynn Goldman, Assistant Administrator, Office of Prevention,Pesticides and Toxic Substances, to Valdas V. Adamkas, Administrator. Region V, RE:Transmittal Of TTie Technical Review Team Report For The Manistique Michigan River andHarbor Area of Concern at 2 (April 11, 1995).
36. 20 New Reforms Cap Two-Year Effort To Reform Superfiind; EPA Administrator CallsFor Legislative-Changes. Environmental News 23 (October 2, 1995).
case variance in Superfund or TSCA regulation that applies based on site-specific conditions.
Treatment of the PCBs in the mining residuals pile and the soil do not require treatment
automatically. If a requirement is not required automatically, then the question is whether the
requirement is necessary to protect human health and the environment from the PCBs in the
residual mining pile given the site-specific circumstances and the Superfund remedy selection
factors. Nothing in EPA's regulations, guidance mandates treatment.
D. EPA'g ARAR Guidance. TSCA Regulations. And RCRA GuidanceRequires A Site-Specific Analysis At The Sf^yi ffcpt
1. Introduction
At the 9/22/95 meeting, EPA portrayed (without any citation to regulation or
guidance and without a reasoned analysis) the decision to require a cap as something required
by the regulations and about which they had no discretion. Contrary to this assertion, the
question of whether a particular TSCA requirement is an ARAR requires a detailed site-specific
evaluation of the purposes of each component of such a requirement, the specific site conditions,
and a detennination of whether the requirement is necessary to achieve the goals of the program
under these site conditions.
The only way that a site-specific evaluation could be avoided would be if a
requirement was explicitly required by the TSCA regulations, the TSCA regulations were
directly applicable37 to the conditions at the SCM plant, and no waiver, variance, or exemptions
37. Applicable requirements" are those "cleanup standards, standards of control, and othersubstantive environmental requirements, criteria, or limitations promulgated under federalenvironmental or state environmental or facility sitting laws that specifically address ahazardous substance, pollutant, contaminant, remedial action, location, or other circumstancefound at a CERCLA site," 40 C.F.R. § 300.5; EPA, CHRCLA Compliance with_Qthet
(continued...)
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were allowed for site-specific circumstances. None of these conditions apply to the SCM plant
site.
2. TSC A Regulations Are Not Applicable
The TSCA regulations are not "applicable." First, the waste was disposed of
prior to February 1978, therefore, the regulations do not apply.31 Second, TSCA is also not
a remedial statute and, therefore, not applicable to the SCM plant cleanup.39 Third, the
standard RCRA cap design is intended to cover high level mixed wastes in a formal landfill, not
the covering of non-RCRA mining residuals, therefore, the RCRA regulations are not
applicable.40 The fact that the RCRA standard cap requirements are not ARARs is
(...conunueo)Manual; Draft Guidance at pp. 1-10 (August 1988) (hereinafter "Draft ARAR
Guidance"). There should be a one-to-one correspondence between the requirement and thecircumstances at the site. Id. "Applicability" implies that the remedial action or thecircumstances at the site satisfies all of the jurisdictional prerequisites of a requirement. ]£.at 1-10.
38. The prefatory note to EPA's PCS regulation states that FCBs disposed of prior to theissuance of the regulations (February 1978) were in use and, therefore, there is no obligationimposed by EPA's regulations to cleanup up such PCBs. The PCBs were all spilled prior toFebruary 1978. §Sfi prior submissions from SCM to EPA.
Tn ry Standard Scrap Metal Company. TSCA-V-C-288, Appeal No. 87*4, August 2,1990 ("Standard Scrap Case*) doet not apply in this case, because it applies only to spillageof PCBs unrelated to disposal. At least, the mining residual pile clearly was a disposal pile
, a facility) and, therefore, Standard Scrap does not control.
39. This argument has no practical impact at the SCM plant since the cleanup is beingperformed pursuant to Superfund..
40. There is no one-to-one correspondence between the requirement and condition at theSuperfund site. The preamble to EPA's proposed PCS Disposal regulations explicitlyrecognizes that the landtm regulation are noj well suited to the cleanup of PCS remediationwaste, such as soil and the SCM filter cake. Sfifi PCB Disposal Rule, japa note 27, at62,792.
demonstrated by the fact that there are no capping requirements (no less the RCRA capping
requirements) contained in the TSCA regulations.41
Further, the fact that the PRPs may move some soil from one location on the
facility to perform a more cost-effective remedial action does not change the determination of
whether a RCRA cap is an ARAR. Consolidation of the soil and filter cake from an area of
contamination does not constitute disposal nor render the site-specific inquiry less important.42
Even if TSCA were applicable, the TSCA regulations43 and policy44 explicitly
provide that EPA can make a site-specific waiver or a TSCA landfill requirement. Similarly,
EPA TSCA PCB spill cleanup policy notes that TSCA provides the "flexibility to allow
alternative or less stringent" requirements when the "responsible party demonstrates the
41. An ARAR must require something. Since the regulations do not require a cap, theycannot be ARAR.
According to representations made at the meeting with EPA, the TSCA office hasrequired a RCRA cap on a case-by-case basis (see EPA Qw'VTSC Document For A 40 CFR$ 761,7g Landfill at Section I(l)(a) at p. 8). According to the TSCA officials, deviationsfrom a TSCA cap have been granted only in exchange for something more stringent in someother component of the remedy. However, EPA's guidance and the regulation itself are notone sided. If some other design serves the same purpose or attains the same goal, then itwould qualify. This is in fact what EPA TSCA guidance now states, (Sflfi MBrim flirtfiilTron Nnn-Liqnid PCB Disposal Methods to be Used A« Alternatives to a 40 CFR 761.75Chemical Vfofte Landfill JCWD 7 (July 3, 1990) (draft) ("TSCA Landfill PerformanceEquivalent Guidance").
42. §e£ Draft ARAR Guidance, supra note 37, at 2-15.
43. 40C.F.R. § 761.75(c)(4).
44. TSCA Landfill Performance Equivalent Guidance, supra note 41.
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presences of risk-mitigating factors or demonstrate the impracticability or the cleanup
requirement."
3. EJPA'S TSCA RygfllptflfY HffflV'rHnfTrtfl p^]^ng To
Are Not
Superfund remedy selection (even at PCB sites) requires a site-specific assessment
and no particular remedial alternative is dictated by the TSCA regulation. Specifically, there
is no ARAR that requires treatment of soil and other low threat wastes containing PCB
concentrations at any concentration,44
The "substantive" portions of the PCB requirements nax be ARARs for cm-site
storage of PCBs prior to disposal "47 Nothing in any EPA regulation, guidance, policy or other
document indicates that the TSCA regulatory requirements are always required.
Quite the contrary, EPA's Guidance on Remedial Actions for Superfund Sites
With PCB Contamination that "some of the requirements specified under TSCA may not always
be appropriate for existing waste disposal sites like those addressed by Superfund [and such
requirements] may be waived when it can be demonstrated that operation of a landfill will not
present an unreasonable risk of injury to health or the environment"4* (ses Section VI for our
45. PCB Cleanup Policy, sues note 21, at 10,702. Sfifc also id- at 10,6090, 10,702.
46. See. Qwfrnce on Remedial Actions for Superfund Sites With PCB Contamin^Qn at(EPA/540/6-90/007, 1990) ("PCB Contamination at Superfund Sites Guidance"); and TSCALandfill Performance Equivalent Guidance, giffifl note 41.
47. CERCLA Compliance with Other L?ws Manual; Part n-. Clean Air Act and OtherStatutes and State Requirements 3-5 (EPA/540/G-89-009, 1989).
48. PCB Site Cleanup Guidance, supra note 46, at 16.
demonstration that Alternative II does not present an unreasonable risk). This guidance
specifically provides that containment alternatives should be considered with the ultimate choice
of remedy depending upon site-specific circumstances.49 Most recently, in proposing the new
PCB disposal rule, EPA noted that the PCB disposal rule would be a
potentially "applicable or relevant and appropriate requirement for PCB cleanupsunder CERCLA ... However, EPA does not anticipate that the provisions relatingto the remedial approach and residual levels permitted will significantly affectCERCLA cleanups, because the rule would provide three options. Generally,EPA would be likely to select tbg H^V-hased option ... which would give theAgency very broad discretion in selecting the remedy.50 (Emphasis added)
Thus, the case-by-case risk assessment and performance equivalent provisions in
EPA's proposed PCB disposal regulations31 demonstrate that TSCA policy is shifting towards
the more flexible Supertund policy. In fact, the existing TSCA PCB new spill cleanup policy
has always explicitly acknowledged that "cleanups under other statutes, such as ... emergency
responses under SARA, may result in different outcomes,"57
Similarly, a site-specific technical analysis is always required to determine
whether: (1) a RCRA cap is "relevant and appropriate," according to the NCP and EPA
49. Id. 62-63.
50. Proposed PCB Disposal Rule, SJJBQ note 27, at 62,799.
51. EPA has also acknowledged the need for a case-by-case approach in its proposed PCBregulations by rinding in the preamble to its proposed PCB disposal regulations that PCBsdisposed of or spilled prior to February 1978 should be presumed to be disposed of in amanner that does not present a risk of exposure. Draft PCB Disposal Rule, SUES note 27, at62,792. Once this regulation is finalized, EPA would need to find explicitly that the PCBspresent a risk of exposure.
52. EPA Spill Cleanup Policy, supra note 21, at 10,690.
-19-
guidance;" (2) an alternative cap design protects against an unreasonable risk or is the
performance equivalent of the RCRA cap or a TSCA landfill more generally pursuant to the
plain language of the TSCA regulations54 and EPA TSCA guidance;55 (3) the alternative
RCRA cap design protects human health and the environment pursuant to EPA Superfund
guidance for PCB contaminated sites;" (4) a component of the potential ARAR (L^, the
RCRA standard cap) may be an ARAR according to EPA guidance;57 (5) the RCRA standard
S3. A "relevant and appropriate requirement" is a requirement that addresses problems orsituations similar to the conditions at the site and that is "well-suited" to the site. See 40C.F.R. § 300.5 and 40 C.F.R. § 300.400(g). The specifics of the potential ARAR must becompared to the conditions, the release, or potential remedy at the site, including: the natureof the substances at the site, the characteristics at the site, the carcumstances surrounding therelease, and the ability of the action to address the release. ARAR Draft Guidance, juprjnote 37, at 1-10, 1-67, The factors considered in determining whether a requirement isappropriate are: (1) the purpose of the requirement; (2) the physical characteristics; (3) thecharacter and circumstances of the release at the site compared to what the requirement wasintended to address and requires; (4) the substances covered by the requirement; and (S) theduration of the activity.
54. Sec 40 C.F.R § 76i.60(e) (which provides authority to approve a performanceequivalent to a chemical waste landfill based on a site-specific factors) and 40 C.F.R.§ 761.75(c)(4) (which provides that requirements may be waived when it can bedemonstrated that operation of the landfill will not present an unreasonable risk of injury tohealth or the environment.
53. For nondestructive alternatives to a chemical waste landfill, the "risk-based effectiveness... should be measured by (a) the amount of containment needed based on site-specificconsiderations and (b) the demonstrated ability of the alternative to provide that degree ofcontainment." TSCA Landfill Performance Equivalent Guidance, Supra note 41, at 7.
56. "Some of the requirements specified under TSCA may not always be appropriate forexisting waste disposal site like those addressed by Superfund. When this the case, it may beappropriate to waive certain provisions, 761.75(c)(4), Requirements may be waived when itcan be demonstrated that operation of the landfill will not present an unreasonable risk ofinjury to health or the environment." Superfund PCB Site Cleanup Guidance, SUQQ note 46,at 16. This guidance repeatedly states that a sit-specific determination should be givenprecedence over the recommendations in the guidance.
57. Draft ARARs Guidance, SUEQ note 37, at 1-68.
cap or portions of it are "to be considered" requirements applicable to a particular site;5* and
(6) the alternative RCRA cap satisfies the Superfund performance equivalent waiver
conditions.59 Even the RCRA cap guidance states that "alternative designs (e.g., fewer layers
...) may be applicable" at a particular site based on site-specific circumstances (emphasis
added).*0
All of these criteria are virtually identical. In each case, it must be decided
whether the remedial action is suitable and provides sufficient protectiveness at this site, given
these site conditions. Thus, a site-specific risk assessment is required in this situation. The
remainder of this Submission provides a risk assessment of the impact of Alternatives II, IV, and
V, and the on site and offsite disposal of PCB contaminated soil.
V. NQT AT^L COMPONENTS OF A STANDARD RCRA CAP ARE SUITABLEFOR THE CONDITIONS ON THE SCM PLANT
A. Introduction
The following describes briefly the SCOU Technical Memorandum's Alternative
n (the First alternative RCRA cover design), Alternative HI (EPA's proposed alternative RCRA
cover design), and Alternative IV (the RCRA standard cap) (see subsection 2, infra* and the
58. A "to-be-considered requirement" is one that is considered because site-specificconditions make its application appropriate or suitable. See Id- at 1-76.
59. Id. at 1-73 - 1-74; 1990 NCP, SUES note 6, at 8,748-49.
60. TfiChnfcat Guidance Document: Final Covers Q» W^T^ITXIQUS Wqflg Tyiflfflli and SurfaceImpoundments at 6 (EPA 530-SW-89-047, 1989) ('RCRA Cover Guidance").
reasons that various components of a standard RCRA cap are not necessary at the SCM site.
The next section compares each alternative based on the criteria in the NCP (see infra).
B, Hie CnrnpgifEpts of RCRA_ Standard CflP ^ItenatJY6 TV) AndAlternative RCRA Ca ( A f t g r n e
1. St^pdfl̂ d RCRA Cftp Design f Ahferp.flt'T?
A standard RCRA subtitle C cap system consists of (from the bottom to the top):
(1) 12 inches of soil (layer 1); (2) 24 inches of compacted clay (layer 2); (3) 20 mil FML (layer
3); (4) 12 inches of sand (layer 4); (5) 36 inches of soil (layer 5); (6) vegetative layer in top
(layer 6) (see Figure 2: A cross section figure showing a standard RCRA cap and Alternatives
II and m).*1 Access is already prevented by a fence and the PRPs have agreed to deed
restrictions and institutional controls as part of the remedial alternative.62
These layers of the RCRA standard cap are provided to prevent erosion, control
runoff, and protect the low permeability layer (layers 5 and 6), to drain the inside of the landfill
so that gas will not build up and water will not infiltrate into the low-permeability layer (layers
3 to 4); to provide a protection against the long-term infiltration of water that might contaminant
the groundwater (layers 2, 3 and 5); to provide support for the cover layers on top (layer 1)."
61. RCRA Cover Guidance, supra note 60, at 5 to 6, 9.
62. a,63. Id. at 5 to 6, 9.
Thus, most of these layers are to prevent infiltration of rainwater into the landfill to minimize
leachate that might migrate into ground water or to protect that impermeable layer.64
2. AJfta-mttire RCRA Cap DesJfflL (Alternative m
Alternative H (see Figure 1) consists of:
• using the 12 inches of soil used to consolidate the existing soil piles as asoil base;
• consolidating a portion of contaminated soil from the site on top of themining residuals pile;
• placing 10 inches of soil cover to prevent erosion and human exposure tothe PCBs in the pile;
• vegetation on top of the cover, including use of geo&ynthetic erosionblanket to prevent erosion while vegetation develop;
• relocating Fields Brook to the northernmost portion of the property;• 10 inches of clean soil in asphalt or crushed stone cover over all soil
containing PCS concentrations exceeding 3 ppm at the plant;
• construction and maintenance of drainage controls;
• installation of partial retaining wall along the bank of the Brook to ensurethat the pile remains stable where necessary;
• installation and maintenance of a fence to prevent access to the pile (Thereis an existing fence around the entire facility, some portion of which maybe temporarily removed during construction);
• periodic inspection and maintenance of all elements of the remedy. Nogroundwater monitoring system is necessary at this site;65
64. See &.; See a]s£-EPA, SoJicLWaste Disposal facility Criteria. 56 Fed. Reg. 50978,51094-96 (October 9, 1991) and EPA, Standards for Owners and Operator? ?f tfr^fTO*Waste and Treatment Storage Disposal Facilities 45 Fed. Reg. 33155, 33209-10 (May 19,1980).
65. See Gradient Comparative Report.
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• implementation of institutional controls, including deed restrictions andagreement that if the property is conveyed that PRPs remain liable, untilHPA approves transfer of obligations to operate and maintain the system.
C. The Reasons That pertain Components Are
The primary goal or purpose of the remedial action at the SCM facility is to:
prevent recontamination of Fields Brook sediment.66 The secondary goals are to prevent
contamination of the nearest usabk groundwater and prevent an unacceptable or unreasonable
risk to human health or the environment from exposure to PCBs.67 The remedial action at the
SCM plant must meet these purposes.
All surfaces containing PCB concentrations greater than 3.1 ppra PCBs will be
covered thereby preventing any surface runoff. There is no dispute that several inches of soil
cover properly maintained will accomplish that goal — prevention of recontamination of the
Fields Brook sediment. Similarly, based on the 1987 PCB spill policy and the proposed PCB
remediation waste regulation, a 10 inch clean soil cover protects against dermal, ingestion, and
inhalation exposure." EPA'S 1987 risk assessment of the inhalation risk to surrounding
66. See ROD, supra note 4 and Technical Memorandum-3 (October 1995).
67. A secondary purpose of any cap is to protection of public health from ingestion, dermal,and inhalation exposure to the chemical in the Landfall. See EPA, fiBTidarfo for Owners andOperators of TTa«H»u« ^aste and Treatment Storage Disposal Facilities. 45 Fed. Reg.33,155, 33,209-10 (May 19, 1980).
68. Sa PCB Spill Policy cleanup requirements (40 C.F.R. § 761.125) which provides that a10 inch soil cover protects human health and the environment (Sfifi PCB Spill CleanupPolicy, amr£ note 45, at 10,688. EPA's Spill Policy specifies that soils contaminated withPCBs in restricted access outdoor areas may remain on-site at a concentration of 50 ppmwithout a cover if a notice of the spill U visible in the area.
(continued...)
residential populations estimated "PCB levels in [outdoor] soil between 220 and 1,300 ppm
present a 1 x 10"7 of carcinogenic risk," (the 10* r\fc )jBvcl.cjaagftspQndsJo_l1144.ppm to 6.760
ppm) (using EPA's present cancer slope factor)69. Using EPA'S draft cancer slope factor for
lower chlorinated PCBs to adjust this risk, a 10* risk level would correspond to 29,260 ppm to
17,290 ppm.70 None of the soil in the pile is^ajbove the concentrations that correspond to a
10* inhalation risk level (even using the current cancer slope factor). Thus, all three cover
designs meet these goals.
The following evaluates only other potentially significant pathways for migration:
68. (...continued)The Agency for Toxic Substances and Disease Registry ("ATSDR") (i^, the agency
officially assigned to assess potential adverse human health at Superfund sites) concluded that"PCBs in residential soil up to about 100 ppm do not constitute a significant health riskunder usual conditions" (emphasis added). Memorandum from I. Lybarger, M.D., ActingDirector, Office of Health Assessment, ATSDR, to Chuck Pietrosewicz, Public HealthAdvisor, EPA Region IV, Re: Additional Soil Samples; Pioneer Sand NPL Site, Pensacola,Florida, SI-96-177 (July 23, 1986), attached to the Record of Decision for Pioneer Sand NPLSite, Pensacola, Florida (ROD-Date September 26, 1986), and summarized in National Oil
56,882, 56,883 (1992). Given site-specific conditions, even higher levels can be containedin place.
EPA issued draft cancer slope factors which demonstrates that the cancer slope factorfor lower chlorinated PCBs is 0.3 (mg/kg/day)-' not 7.7 (mg/kg/day)-1, PCB Cancer SlopeFactor Report, supra note 21, at 41-42. Thus, the health impact of leaving 268 ppm ismuch less than estimated by EPA in 1987.
69. PCB Spill Policy, fiipja note 21; at 10,698. EPA's 1987 cancer slope factor was 4.0(mg/kg/day)'1. EPA'S current cancer slope factor is 7.7 (mg/kg/day)'1. The Iff6 risk levelwould be increased by 7,7/4.0 or 1.925. Thus, the soil concentration that corresponds to 10"6 risk would decrease by 1.925. In the new proposed cancer slope fiactor of 0.3 (mg/kg/dayT1 is used, the soil concentration would increase by a factor of 4.0/0.3 or 13.3.
70. The cancer slope factor used in 1987 was 4.0 (mg/kg/day)-1 versus EPA's proposedvalue of 0.3 (mg/kg/day)'1. Se ftw. 21 and 68,
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• Infiltration of water through the pile and continuing down into theLacustrine/Till water-bearing unit (Le.. the water table) withsubsequent ground water migration toward and discharge into FieldsBrook (Pathway 1 in Figure 1 from the Gradient ComparativeReport); and
• Infiltration through the pile and continuing down through theLacustrine/Till units into the bedrock zone and subsequent lateralmigration to the Ashtabula/Lake Erie (Pathway 2 in Figure 1 fromthe Gradient Comparative Report).71
Given the low hydraulic conductivity of the underlying native soil/bedrock, PCB
migration in the groundwater71 will mfc be a significant pathway through either of these routes.
This low hydraulic conductivity combined with the low mobility of PCBs results in travel times
to the potential receptors of greatly in excess of tens of thousands of years (even using simplistic
models which overstate the potential to migrate and consider only migration in the unsaturated
zone)* Moreover, the maximum concentration in leachate as it entered the groundwater would
be millions of times or more below the EPA drinking water standard of 0.5 ppb for each of the
alternative covers (see below),73
71. Seepage of leachate at the toe of the pile has not been observed during the over twenty-rive years of operation of the pile and U an unlikely route of migration. The existing soildata (specifically FG1GS2, FG1GS4, and FG1GS5, which contain PCBs ranging from 3.9ppm to 79 ppm, historical patterns of operation, the surface sediment transport modeling, thelack of PCBs in the groundwater demonstrate that surface sediment transport and directdischarges were the only significant pathways. Good engineering practice obviously will beused to design the Alternative H cover in a manner to avoid seepage.
72. The term groundwater as used here denotes saturated subsurface materials. Its use doesnot imply the saturated materials could produce an adequate rate of flow from a well to beconsidered an "aquifer." See Gradient Comparative Report and notes 74 and 91, i
73. The water table underneath the site is not an actual or potential drinking water supply.The closest groundwater that could be used as potential drinking water (L&, an aquifersupply enough water and containing less than 10,000 mg/1 dissolved solids) is Lake Erie,many miles from the confluence of the Ashtabula River and Lake Erie.
Further, the existing 10-15 feet of material till underneath the SCM plant provides
a range of permeabilities with depth.74 As a result, the natural soil provides from
approximately 3 1/2 times to 300 times greater barrier than required by the TSCA regulations.
This alternative RCRA cap design was designed specifically to protect human health and the
environment from the threats at this site. It will prevent erosion of PCBs into Fields Brook and
it will prevent direct human contact. Thus, Alternative II provides similar protection of human
health and the environment at a substantially lower cost than a standard RCRA cap (sgg Section
VI, infe).75
VI. COMPARISON OFALIERNATIVES n. IV. AND V FROM SECTION 6
CONTAMINATED SOIL
A. Introduction
Neither a standard RCRA cap or disposal in a TSCA landfill are "relevant and
appropriate" if, based on a site-specific evaluation, the difference between the level of protection
provided by a standard RCRA cap design (Alternative IV) or disposal in a TSCA landfill and
the Alternative n cap in TM-3 is insignificant. Similarly, if the incremental cost difference
between Alternatives IV and V, on one hand, and Alternative n, on the other hand, is out of
proportion to the increased level of protection provided, then selection of Alternative n is
74. This till has a permeability of between 10'7 to 10* cm/sec. The TSCA regulations onlyrequire four feet of soil with ia7 cm/sec permeability (Sss 40 C.F.R, 761,75(b)(l)(i,ii))-
75. EPA requested that TM-3 include cover design which had more layers than Alterativen, but less layers than Alternative IV. This alternative (Alternative m in TM-3) is notquantitatively evaluated in this submission. However, the level of protection are essentiallythe same as Alternative n and the costs are greater, therefore, Alternative m is also not cost-effective.
-27-
consistent with the NCP and selection of Alternatives IV and V would be inconsistent with the
NCP. The technical demonstration which supports both findings is summarized below and
provided in the Gradient Comparative Report.
Surface Runoff
The ROD states that the objective of source control is to "prevent recontamination
of Fields Brook. " The primary pathway for recontamination is erosion of PCB soils and surface
runoff to the brook. Alternatives n, IV, and V will prevent this completely. Hence, the least
expensive, Alternative n, will be the most cost-effective and preferable alternative.
C. Tfrfl FiTPocure Through (rrpynflwfttflC' ffllh*ayr Ef Any, Is MSHfonj OfLower Th ^*"0 1*
1. Introduction
This site-specific analysis quantitatively compares Alternative n (the First
Alternative RCRA cover design) and Alternative IV (a standard RCRA cover design) by first
describing a conceptual model of the migration of PCBs from the SCM plant, and then applying
appropriate mathematic models to estimate the PCB concentration and travel time at the nearest
conceivable exposure point. Gradient Comparative Report is the detailed technical analysis
documenting this comparative evaluation.
2. A, Snmmarf Qf UK QonccptuaJ Mffdtf Used ToAlternatives
The conceptual model (see Figure 1 in Gradient Comparative Report) examines
the two most significant potential pathways for migration of PCBs from the SCM property. In
summary, rainwater migrates through the cover and the mining residuals pile. The leachate then
could either: (1) migrate further downward into the Lacustrine/Till units and then discharge to
Fields Brook (Pathway 1 in Figure 1); or (2) migrate downward and laterally through the
Lacustrine/Till units and continue downward into the upper layer of the bedrock and then
laterally to the Ashtabula River (Pathway 2 in Figure 1).
Since the conductivity of the Lacustrine/Till deposits is higher than the
conductivity of the bedrock, groundwater flow in the Lacustrine/Till will be preferentially lateral
in this unit, moving toward points of groundwater discharge (as depicted in Pathway I).76 The
existing contour maps of the shallow groundwater also indicate shallow groundwater tends to
discharge to Fields Brook, further indicating that pathway 1 is the only significant one requiring
investigation.
The lack of a significant groundwater pathway at the SCM site (demonstrated
above) is confirmed by the objective site-specific evidence. First, PCBs have not been detected
in the groundwater between the pile and the Brook.77 Second, the TCLP tests on soil
containing high levels of PCBs at this site measured no detectable levels of PCBs.7* The
purpose of the TCLP test is to simulate a worst-case environment for Leaching of chemicals
76. This result can be shown using the "tangent" law of groundwater flow at a discontinuousinterface (Freeze and Cherry, 1979. Groundwater Prentice-Hall, Inc. Inglewood Cliffs, NJ.604 pp).
77. See Letter from SCM to EPA (August 7, 1995).
78. Woodward-Clyde, FiMLReport: Sediment Operable Unit Combine Design InvestigationFinal Reports. Fields Brook Site Adrtabula. Ohio Volume 2: Solidification DesignInvestigation (SLDQ Table 2-3C (February 1995), which indicates no detectable PCS leachedoff the untreated sediment used in the treatability test.
-29-
from solids into ground water.79 In fact, EPA's proposed PCB regulations and EPA's proposed
hazardous waste identification rule use the TCLP test to determine that treated PCB waste
present no threat. w Therefore, this test indicates that there is virtually no potential for ground
water contamination.
Thus, one can rule out the bedrock as a significant pathway (although for
completeness, it is evaluated below and in Gradient Comparative Report).
3. Ttlfi OlBTC'foll fffrte Ant* TrRPflPQ't ModeJLUaed ToAlternatives
Complex fate and transport models could be used to predict more precisely the
PCB concentration and travel time, but the time and expense of using such models were not
justified since simpler models (which over predict concentration and travel time) still
demonstrate no significant impact.
The fate and transport models evaluated included the V ADOPT model used in
EPA's Superfund PCB Site Cleanup Guidance, EPACMTP model (L&, EPA's Composite Model
for leachate Migration with Transformation Products) (which EPA has proposed to use in
developing exit concentrations for the hazardous waste regulatory system)11 the EPA
Composite Model for Leachate Migration or EPACML) (which was developed as part of the
TCLP rulemaking and is currently used to assess petitions to remove listed wastes from the
79. Pfl«rtfltf WMte Management Svstgm; Td^ntificfltJon and IJjtfing Of Pfrfffl1?* WMteTToxicity Characteristic Revisions 55 Fed. Reg. 11,798 (1990).
80. Proposed PCB Disposal Rule, supra note 27, at 62,797-98.
81. wa^rdn»s Watte Management System; Identification and listing nf HaTardous Waste:Hnfirt™ WafltC Justification Rule (HWHO. 60 Fed. Reg. 66,344, 66,367 (1995)(proposed rule) ("Proposed HWIR").
hazardous waste regulatory system)," and the one-dimensional advection dispersion
("ODAST") model (which is published in the American Geophysical Union, Water Resources
Monograph 10).
The ODAST model was chosen because: (1) it is an analytical solution to the same
governing advection dispersion equations used in all of the cited models; (2) it is a one-
dimensional model and, therefore, will predict higher concentrations than really would occur and
higher concentrations that the EPACML or EPACMTP models; (3) EPA personnel advised
Gradient that the VADOFT model should not be used; (4) the ODAST model is a well
documented, readily available, and easily verified model; and (5) the model was appropriate for
screening purposes, L&. it is certain to over predict concentrations and travel time. Site-specific
model parameters were used (§sg Table 1 in Gradient Comparative Report) for list of input
values, in the ODAST model.
4. TheSite-S
Most of the rainwater (at least two thirds) will be lost through evapotranspiration
or collected at the surfiace as runoff. Since this water never contacts PCBs, it is not a pathway
for recontamination of Fields Brook. A certain amount of rainwater (about one third) will
infiltrate through the cover and migrate through the mining residuals pile (40.5 cm/yr for the
Alternative II soil cover and 3.15 cm/yr for the RCRA standard cap, L&L, assuming a
82. Id. at 66 367-69 and>f F u t o m Waste:
rule).
en Identificatio60 Fed. Reg. 62,794, 62,795 (1995) (proposed
permeability of 10"7 cm/sec for the standard RCRA cap design versus virtually unlimited
permeability for the soil cover).*3
The continuous 10 to 15 root Lucustrine/till layer beneath this pile and the entire
SCM plant provides a natural bottom liner with low permeability as documented in the SCRI
Report.14 The hydraulic conductivity of the Lucustrine/Till layer (based on data from the
Occidental plant and the observed monitoring well purge-recharge times of several weeks to
months) is very low (L&, shallow groundwater velocity is on the order of 0.1 to 100 feet per
year, with the lower velocities from the wells nearest the SCM Plant) and 0.001 feet/yr in the
bedrock.45
The 95% upper confidence level ("UCL") on the measured mean PCB
concentration in the pile is 293 ppm," PCBs are hydrophobic, but some small amount of PCBs
may dissolve into the rainwater as it migrates through the pile. The predicted PCB concentration
in leachate migrating through the pile should be 142 ug/L (using the calculated soil/water
83. See Gradient Comparative Report.
84. Only a four foot bottom liner is required in the TSCA regulations.
85. See Table 3.6.1 from the SCRI Report. The TSCA chemical waste landfill regulationsonly require 4 feet of in place soil of a permeability of 1 x 10*7 cm/sec (see. 40 C.F.R.§ 761.75(b)(l)(i,ii)). Thus, natural till is three to three and a half times thicker withpermeability that ranges from permeability equal to the regulatory requirement (Itt7 cm/sec)to two orders of magnitude lower (10~7 to 10* cm/sec).
86. The mean PCB concentration of 19 samples is 186 mg/kg, with a range of 0.054 mg/kgto 743 mg/kg, a standard deviation of 268.9 mg/kg and an UCL on the mean of 293 mg/kg.EPA Superfund guidance uses averages not point-by-point concentrations in its riskassessment (Sec Supplemental Offiidincffi *° RAGS: f-fllft|ilttinB fre Concentration Tefrq at 1(Publ. 9285.7-081, May 1992) and in determining any compliance with the Cleanup goals(see Soil gqT^njrjg Level Guidance, at (December 1994) (draft). Since this is a Superfundsite, this guidance will be used.
partition coefficient for PCBs of 2,062).87 Toxicity leaching procedure test results on the soil
indicate no detectable concentrations of PCBs in the leachate at a 1 ppb detection limit). This
result demonstrates that the theoretical equilibrium concentration of PCBs in pore space water
in the pile estimated above using a soil/water partition coefficient recommended by EPA is
overly conservative (i.e.. it over predicts the amount of PCB which will leach off of the filter
cake into the rainwater migrating through the pile).
The average concentration in the source decreases over time due to leaching of
PCBs, volatilization, and biodegradation (see Gradient Comparative Report for details). The
biodegradation half-life used was 50 years, as specified in EPA's guidance concerning cleaning
up PCB contaminated sites.19 Therefore, every 50 years, the average PCB concentration
decreases by a factor 2. The scientific literature supports a biological half-life of 10 years (505
Table 3 in Gradient Comparative Report).
We assume that all of the PCBs dissolve instantaneously into the water and the
PCBs leachate instantaneously enters the Lucustrine/till layer at the bottom of the mining
residuals pile (Pathway 1). In reality, the PCBs take a considerable amount of time to migrate
through the pile. The pile varies in thickness from several feet to 20 feet, with an average
thickness of 15.6 feet. Assuming that the PCBs are randomly distributed throughout the pile,
87. £$£ Mackay, D. W.Y. Shiu, K.C. Ma. 1992. "Iv.TtTMf* JHandbook of Phvrical-Chemical Properties and Environmental Fate for Organic Chemicals - Volume 1. LewisPublishers, Ann Harbor MI.
S8. Biodegradation will occur in the pile, thereby decreasing the concentration at the sourceand while the PCBs are migrating along each pathway. EPA's guidance suggests a soil half-life for PCBs of 50 years (sec Superfund PCB Cleanup Guidance, supra note 46, at 49.) Thescientific literature values support a 10 year half-life (see Attachment 2 in the GradientComparative Report). In the analysis in Gradient Comparative Report both 10 and 50 yearswere used.
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the layer of the pile directly above the Lacustrine layer will leach PCBs into the unsatuiated zone
in roughly the manner assumed for our calculation. As the distance above the pile/natural soil
interface increases, the travel time and concentration of PCBs decrease. The PCBs from the
top of the pile will take 103,000 years19 to migrate to the bottom of the pile and the
concentration of PCBs in the leachate would decrease due to attenuation and biodegradation to
roughly 10°s ug/L (a concentration that is effectively zero). Thus, rather than a constant EPA
source as assumed for the sake of screening, in fact, the source is decreasing and the rate of
release of PCB is spreading out over a much longer period of time.
5. The Site-SpEctfic Vqluqfl ,4^ Exposure Asiuypptiona Used ToCoqipare Tfte TSj /̂\ LiBUM^ Tft Tl^P1*tT1fntflrton of AnAlternative II Cover Over
Except as indicated below, the same input values were used to estimate predicted
concentrations of PCBs in leachate migrating from the bottom of the landfill into the
groundwater as were used to estimate concentrations for Alternatives n and IV. The thickness
and permeability of the bottom liner for the landfill are specified by the TSCA regulations (four
feet of soil with 10"7 cm/sec, day). The clay was assumed to have 0.5 % organic carbon content.
A range of pre-water PCB concentrations from 1 ug/L (the concentration as measured at the
SCM Site) and 100 ug/L (the solubility limit of PCBs. was assumed for this analysis.
89. Water takes approximately IS years to migrate through the pile at the thickest point,i.e.. 20 feet times 12 inches per foot divided by sixteen inches per year. The PCBretardation factor is 8,775. Thus, it would take 15 years times 8,775 or 131,625 years forPCBs to migrate through the 20 foot thickness. The travel time would be 65,812 years for10 feet, 32,906 years for five feet, and 6,581 years for one foot.
6. The Site-Specific Values And Exposure Assumptions Used ToComare The Onstte and Qffste Disosal Of the PCS
For this analysis, again, the same input values that were previously used were
used for this exposure scenario (except as noted below). The material to be contained is soil
from the SCM Site. The initial PCB concentrations in the power water within the TSCA landfill
was assumed to be 1 ug/L and 100 ug/L, the same as above.
Zone
a. M i t i g n Tftrpifr Lacustrine/TiU To Ftelds Brook
Given the simplistic model and many worst-case assumptions, the model will
predict concentrations and travel times that are significantly higher than actual conditions.
Additionally, the point of theoretical exposure chosen for the modeling is the point at which the
groundwater leachate enters beneath the pile. There is no dilution assumed in the grouDdwater
and, most significantly, there is no actual drinking water exposure at this point.
For Alternative n (an alternative RCRA cover design), the modeling predicts no
leachate will enter the groundwater for the first 32 thousand years. After 32 thousand years,
the maximum future PCB concentration entering the groundwater would be 6 x 10"" ug/L —
a concentration one trillionth the EPA drinking water standard of 0.5 ug/L and a risk that
is 10"1* (one ten billionth the lowest risk goal used by EPA in either the Superfund or TSCA
programs).90
90. The concentration of the drinking water standard (0.5 ug/1) "presents little to none of therisk [estimated by EPA] and is considered safe with respect to PCBs level." 40C.F.R.§ 141.32(45).
-IS-
For Alternative IV (a standard RCRA cover design), the modeling predicts no
leachate win enter the groundwater for more than a three hundred seventy-five thousand
yean. After three hundred and seventy-five thousand years, the maximum future concentration
of PCBs in the leachate as it enters groundwater would be 1 x 1C42 ug/L. While this
concentration is mathematically lower than the predicted concentrations pursuant to Alternative
n, the concentration only begins to differ from the predicted concentration for Alternative n only
in the twelfth decimal place and results in no biologically meaningful lower risk. Both
concentrations are the equivalent of zero risk.
Even so, there is no exposure to the groundwater since it is incapable of being
used as a drinking water source. Both predicted concentrations also overestimate considerably
the likely true concentration at the nearest point of potential human exposure. Neither the till,
Fields Brook, nor the upper level of the bedrock are potential drinking water sources.91 The
leachate would mix with the groundwater and migrate to Fields Brook through the groundwater
91. The water in the till layer is not protected by EPA drinking water and Superfundregulations. Groundwater does not require protection if it contains greater than 10,000 mg/1of total dissolved solids or it cannot supply a sufficient quantity of water to a domestic well.EPA's nuiddinff for Ground-Water filmipfication 39, 41 (Dec. 1986) (final draft), ritH inthe NCP, supra note 6, at 8,732; Protecting The Nation's Qfpqnj Yfot^ EPA's Strategy
July 1991). Sufficient quantity for an average family is defined in the EPA guidance cited inthe preamble to the NCP as 150 gallons per day. GW Classification, unm this note, at viti,39, 41, 44-45, particularly p. 45.
The yield from site-specific wells in the area are less than necessary to qualifyas potential drinking water sources (L&, a US drinking water on "USDW"). 40 C.F.R.§ 260.10. Fields Brook is primarily composed of industrial effluent and will never be adrinking water source. The Ashtabula River also is not used for drinking water. The nearestdrinking water supply is T-aVc. Erie, many miles away.
where it would mix with the surface water flow into the Ashtabula River and eventually to Lake
Erie. Thus, the actual likely exposure is effectively zero.
River (Pathway 2)
As demonstrated above, Pathway 2 is unlikely to exist. However, we
assessed its significance. The first stage in the migration is the same as above. In Pathway 2,
the leachate mixes with the bedrock groundwater and migrates to the Ashtabula River in the
groundwater where it would mix with the surface water and flow into Lake Erie. Given the
much lower travel times in the bedrock, the direction of bedrock groundwater migration toward
the Ashtabula River, and the much longer distance between the pile and the Ashtabula River,
the travel time is estimated to be 52.5 billion years. Even using the 50 year half life and
ignoring all other factors, the concentration of PCBs in the bedrock groundwater when it enters
the Ashtabula River would be trillions of times lower than the predicted concentration for
Pathway 1. Once again, there is "? m<mningfql difference between the performance of the two
alternative cap designs.
The predicted PCB concentration in leachate leaking through a TSCA permitted
landfill is lO^2 ug/L. This concentration only begins to differ from the predicted concentration
predicted for Alternative H in the twelfth decimal point. The more appropriate comparison
would between actual or reasonable maximum exposure points. The concentration from
Alternative n are likely to decrease by many more orders of magnitude, thereby further
Lessening the difference between the alternatives.
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9. Results Of Disposal Of PCB Containing^ foil Qpsfte On TheMining Residuals Pile and OJOfsite In A TSCA
If we assume the initial concentration of the PCBs in the leachate from the pile
is between 1 ug/L to 100 ug/1 (as described above), the predicted PCB concentration in the
leachate from PCB contaminated soil placed on top of the mining residuals pile at the point that
it enter the groundwater would be 10* to 1041 ug/L. Again, there is no biologically meaningful
difference in these predicted PCB concentrations. They differ only in the 3 1st decimal place and
the disposal onsite is 45 orders of magnitude below the EPA drinking water standard and 43
orders of magnitude lower than EPA's lowest risk management goal.
10-
The size of the margins of safety in this analysis are so large as not to warrant
a sensitivity analysis. However, for completenets, the Gradient Comparative Report contains
several sensitivity calculations. The parameters which were varied across a range of values were
leaching velocity, soil-chemical adsorption, the disperrivity coefficient, and biodegradation half-
life. We also examined the order of magnitude of the reductions in concentrations resulting
from leaching through the pile and migration in the groundwater. The sensitivity analysis
indicate that there is a wide margin of safety across various assumptions. The basis for the
selection of each parameter are documented in the sensitivity analysis. The basic conclusion of
the sensitivity analysis is that variation of the input values to the model, even using values that
are impossible, does not indicate a significant risk.
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11. Comparisons Of Alternatives 1L IV. and V
All three alternatives attain ARARs. The risk from the runoff and direct exposure
is prevented by all of these alternatives, therefore, human health and the environment are
protected. PCBs are relatively immobile and do not migrate from the source area. The
groundwater pathway risks from Alternatives II, IV, and V are all effectively zero (10"13 ug/L,
lO^ug/L, andlO^ug/L).
Any alternative that requires excavation and treatment of material containing PCBs
may present a risk. The more soil that is excavated, moved, and treated, the greater the risk
from excavation (L&, construction accidents), transportation (traffic accidents), risks from
emissions of PCBs and other chemicals during incineration, and construction accidents during
disposal (again construction accidents).92 All of these actions would be performed in
compliance with existing regulatory requirements, which limits risks to acceptable levels.
Nonetheless, the cumulative risks from these activities are likely to exceed the minimal risks
presented by the long term containment of PCBs onsite in the mining residuals pile. The benefit
from the excavation, handling and treatment of soils with PCBs greater than 500 mg/kg and
92. PCB Cleanup Of Superfund Sites, sups note 61; Memorandum from Elliot Laws, toWaste Management Division Directors, Subject:
Wastes (May 23, 1994) ("Combustion Policy Statement"). Thismemorandum states that "combustion of certain inorganic metal-bearing hazardous wastes ...normally does not represent effective treatment of these wastes, such burning can beconsidered impermissible dilution." Id. at 1. Although this policy is a RCRA, not aSuperfund, policy, it probably should be "considered" by EPA and the FBPRPO. Thepractical impact of this policy is to make approval of incineration more difficult. £gg £EACalls For Expanded Risk Assgy^gqfcJFor Superfun^ Tncj\iejaf"'«J Eov't'l Policy Alert at 3(June 8, 1994). USEPA has even terminated incineration contracts and is reconsideringincineration at several sites. £4.. EPA Cancels Incineration fofltrftct At New Bedford
Site. , Superfund Report 30 (July 27, 1994).
-39-
disposal in the onsite landfill must outweigh these risks for this alternative to be consistent with
the NCP.
The toxicity and volume of contaminated soil is not reduced by containment
(Alternatives n or IV), but the risk from the contaminated soil on a typical site is reduced. A
non-treatment containment alternative can be effective over the long term when maintained.
Such maintenance ii easy to implement.
little excavation and disturbance of soil is required under containment alternatives
resulting in greater short-term effectiveness. Such an alternative is easy to implement.
Excavation might also require disturbance of a nearby ecosystem (particularly floodplains and
wetlands). Between actual excavation, mobilization activity, operation of onsite incineration
facilities (which are small industrial plants, in effect), and other activities must occur in the areas
that are remedied. The adverse environmental impacts, particularly to the floodplain and
wetland habitats, would be caused by implementing such a remedy must be weighed against the
benefits of such excavation.
The costs of Alternatives U, IV, and V are $2.2 million, $3.2 million, $12,3
million and $81.6 million, respectfully. The more realistic costs estimates are $2.6 million, $3.9
million, $15.6 million, and $101.7 million, respectively. Thus, Alternative IV and V are much
more expensive than Alternative U. The benefits of these alternatives must lie proportionally
greater for there alternative to be cost effective.
The risks from thermal treatment must also be balanced against the amount of
reduction in the volume and toxicity of hazardous substances at the site. By definition,
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incineration of material containing low concentrations (which predominate at this Site) results
in less reduction in toxicity than incineration of high threat material.
The treatment alternative does not provide significantly greater protection of
human health or the environment or effectiveness compared to containment alternatives. The
costs of treatment of materials containing PCB concentrations of more than 500 ppm are always
out of proportion to the benefits of such treatment when compared to containment alternatives.
In this case, even treatment of material containing greater than 500 ppm of PCBs is not cost-
effective. This lack of cost-effectiveness is recognized in various EPA documents which
recommend that containment rather than treatment of low threat wastes be selected as the
remedial action at Superfund sites.
EPA has not issued guidance providing a mathematical formula for cost-
effectiveness. However, typically treatment alternatives are many times more costly than the
health protective containment alternative, EPA1 s continued emphasis on not treating lower threat
waste simply confirms that conclusion at this Site.
12. Comparisons Of Onsite Disposal of PCB Contaminated Soil On Thefill
Most of the comparisons cited above are applicable in this situation. The cost of
offsite disposal is many times higher then onsite disposal and there is no meaningful increase in
benefits.
-41-
D,In sum, no regulation requires treatment of low threat wastes and EPA guidance
and policy recommend strongly against treatment of low threat wastes or soil. Based on a
balancing of site specific favors, EPA can only select containment alternatives. However, the
overwhelming factor is that the treatment alternatives are not colt-effective, and in fact, may
decrease protection of human health and the environment at least in the short-term.
This evaluation is consistent with the conclusions of nationally recognized experts
that PCBs in situations such as present at the SCM plant do not have the potential to migrate.93
The conditions being addressed are different from those addressed by a landfill
cover. The mining residual pile is a pile, not a landfill. The filter cake is stored above the
native soil surface. Essentially only PCBs have been disposed of at the site. Thus, there are
no chemicals which would mobilize PCBs. As noted above, there is no ground-water to protect.
If an alternative cover is not appropriate at this Site, then there is no set of conditions that could
justify a site-specific design and EPA's guidance would be mere surplusage.
Selection of a standard RCRA cap is inconsistent with the detailed Superfund
guidance, which guides EPA decision making. The mining residual pile is not the principal
threat at this site. The 95% UCL on the mean 293 ppm is significantly less than 500 ppm cited
93. "In most environments, migration of PCBs is very limited because of their strongtendency to sorb to solid materials in the aquifer, with the PCBs traveling at as little as one-hundredth the rate of the ground water. . . . The appropriate remedial measures at such asite (where residual PCBs are found below the water table) will likely be containmentbecause of the inability to remove the PCBs with existing technologies as a result of theirextremely low solubility." Alternative for Ground Water Cleanup. National Academy Press,Washington, D.C. 1994 at pgs. 197-198.
by EPA at the 9/22/95 meeting as a reference concentration in some EPA guidance.91 Since
only four out of 19 samples exceeded 500 ppm, only a small volume of soil might be contain
PCBs above 500 ppm. The highest concentration in this soil is 743 ppm. According to
Superfund guidance, the principal threat u the 10* risk level* (which corresponds to a
concentration of 3,100 ppm at this Site).96 Similarly, the soil concentrations that correspond
to a 10* inhalation risk level (using EPA's own risk assessment) are 1,144 ppm to 6,760
ppm.77 None of the individual samples exceed this value.
EPA's ARAR guidance states that a RCRA cap is "inappropriate" if the physical
size of the contamination is large, particularly where there are "large dispersed areas of low-
level soil contamination.1'99 The SCM plant is a large dispersed area and the PCB
contamination is generally at low levels (particularly compared to levels in liquids). The ARAR
guidance also states that a RCRA cap is not an ARAR if one is consolidating the waste within
a unit (as is the case for the SCM Plant).99
94. The PCB Site cleanup Guidance references the 500 ppm, but neither this guidance norany other guidance or rule requires a mandatory cap for soil containing 500 ppm of PCB orgreater in all circumstances.
95. Principal Threat Guidance, sups note 29, at 2.
96. According to the recontamination study at the plant, the health protective level is 3.1ppm (which is the 10* risk level). A 10* risk level, therefore, is 1,000 times higher 3,100ppm.
97. If EPA's proposed cancer slope factor is used, the 10"* risk level from inhalation wouldbe 29,260 ppm to 172,900 ppm. SfiE supra note 69.
98. Draft ARARs Guidance, supra, note 37, at 1-68.
99. . at 2-15.
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As noted in Section IV above, a site-specific evaluation demonstrates that the
SCM site does not present the conditions requiring a RCRA cap or excavation, treatment and
disposal in a TSCA landfill because it does not significantly reduce the risk compared to the
proposed alternative and is not cost-effective. Even EPA's generic guidance suggests that a less
draconian approach is appropriate at the SCM site.
vn. CONCLUSIONThe TSCA landfill regulations are not ARARs based on site-specific
circumstances, i.e.. most of the requirements are geared to protecting groundwater and there is
no potential drinking water aquifer or route of exposure at this site. In any case, an alternative
cap design proposed by the PRFs is the performance equivalent of a RCRA standard cap.
AA