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E-M:/ Temporary facility in Kalamazoo

Enviro-Mich message from Hannah McKinney <mckinney@kzoo.edu>

Residents and city officials are appalled at a recent decision by EPA and MDEQ to move PCB sediments from the Plainwell area of the Kalamazoo River to a temporary facility located in a low-income neighborhood in Kalamazoo. As Mayor of Kalamazoo, I sent the director Region 5 of EPA, Richard Karl, a letter, the body of which is copied below. It is hard to believe that officials of the federal and state government would misuse federal Superfund regulations to dump PCBs in the wellhead area of a municipal water system in a site immediately adjacent to homes of residents. Does anyone have any ideas about how we can stop this action?

From letter to Karl:

I am writing on behalf of the citizens of the City of Kalamazoo, Michigan regarding Administrative Settlement Agreement And Order On Consent For Removal Action (the “Order”) issued by U.S. EPA on February 21, 2007, permitting the placement of PCB-contaminated sediments from the Plainwell Impoundment Area into an existing, temporary facility at the Allied Paper Operable Unit #1 (“Allied Paper Landfill”). The Allied Paper Landfill is not only a Superfund Site and an unlicensed disposal area, but it is up gradient from the City’s drinking water well field and situated in a low-income, primarily minority (African-American and Hispanic) neighborhood. The City was first informed of this Order after it was issued, and I can say that the response of our citizens and public officials has been nothing short of outrage.
Summary of City’s Position. According to the February 2007 U.S. EPA Fact Sheet describing the work, “since November 2004, EPA has been involved in confidential discussions to resolve differences between the mediating parties that were delaying the cleanup and restoration of the Kalamazoo River site.” Although it is understandable that settlement discussions occur behind closed doors, it is not acceptable for EPA to preclude the City from having an opportunity to provide comments on a plan to dispose of highly toxic PCB-contaminated sediments within the City limits. The method chosen by EPA to deprive the City of its right to comment – styling the removal as “time critical” – is particularly disturbing. The Order is not an emergency unilateral order but the end result of two-years of negotiations. Furthermore, the sediments that are the subject of the Order have been in the Kalamazoo River for more than 30 years and cannot possibly be construed as posing an emergency risk of migration, bio-uptake, or ingestion. By inappropriately characterizing this removal as time critical, EPA has subverted the Community Involvement Plan and foreclosed other opportunities for public comment and involvement. The City objects to being left out of the decision making process, it objects to imposing the burden of this cleanup on its low-income, minority citizens, and it objects to the PCB-contaminated sediments being placed in the unlicensed disposal area up gradient from a municipal wellfield.
Discussion of City’s Position. Although EPA has agreed to meet with representatives of the City and MDEQ to discuss this situation, EPA has placed the City at an enormous disadvantage, forcing it to raise its concerns after the fact and in a short span of a few weeks before the work starts under the Order. The City has issued a FOIA request to EPA to review the Administrative Record for this Site, but EPA has not yet responded to that request. Moreover, the City has sought but still has not been provided with groundwater data that apparently has been collected in the vicinity of the Allied Paper Landfill. Once the City receives all of the pertinent data and reports, it will able to provide more specific comments. Based on what it has seen thus far, the City raises the following concerns:
1. U.S. EPA Failed to Consider The Effects of Depositing the PCB-Contaminated Sediments Within The City Limits, Up gradient from a Municipal Well Field.
The City has seen nothing establishing that EPA considered the possible effects of placing PCB-contaminated sediments in an unlicensed disposal area up gradient from the City’s well field. To the contrary, the City has learned that the Michigan Department of Environmental Quality (“MDEQ”) Ground Water Quality Division was not consulted regarding the adverse effects the disposal of additional sediments in the Landfill may have on the quality of the City’s municipal water supply. Indeed, MDEQ groundwater staff was only made aware of the issue because of concerns raised by the City.
Furthermore, the City has not seen any justification for selecting the Allied Paper Landfill as the disposal location for the PCB-laden sediments over other more appropriate disposal areas, such as a properly licensed TSCA landfill, or even the 12th Street Landfill, which is much closer to the Plainwell Impoundment and may not present the same well field risks or environmental justice issues present at the Allied Paper Landfill. Again, it is hard for the City to know what criteria EPA considered, if any, in selecting the Allied Paper Landfill because the City was completely left out of the decision-making process and has been forced to scramble to gather and analyze the Administrative Record and relevant site data and records.
2. There Is No Justification For Performing This Work As A Time Critical Removal Action.
According to the Order, the PRPs discharged PCBs into the Kalamazoo River from the mid-1950s to the early 1970s, i.e., more than 30 years ago. Negotiations between the U.S. EPA and the PRPs regarding this very removal action have lasted more than two years. Given all the time that has passed, it is inconceivable that U.S. EPA can justify performing this remedy as a time critical removal action, which severely limits the City’s opportunity for review and comment. The City has little choice but to conclude that EPA allowed the removal to be done on a time- critical basis purely as a bargaining concession to the Respondents and to prevent meaningful involvement by the City.
The February 14, 2007 Enforcement Action Memorandum that purports to justify EPA’s decision to perform a time critical removal action is lacking in several respects. EPA’s justification seems to be based on the potential threat of exposure to human health and the environment, but there is no discussion of the adverse health effects the removal action itself might cause, such as the suspension of PCB-contaminated sediments in the Kalamazoo River, the eroding of PCB-contaminated sediments in Allied Paper Landfill, and the migration of PCBs into the City’s well field. Indeed, some of the justifications offered in the Action Memorandum itself seemed less than robust. For example, page 5 of the Memorandum states that, “[t]he PRPs concluded, primarily through visual observation, that the riverbanks were a source of ongoing loading of exposed sediments (and therefore PCBs) to the river. The PRPs also identified, again primarily through visual observation, some of the mechanisms involved in such loading.” Given the importance of these issues, it would seem that something more than visual observation would be called for in deciding whether the riverbanks provide a sufficient new load of PCBs to justify a time critical removal action. It seems that EPA drafted the Memorandum merely to justify a decision that had already been made rather than to make a decision based on the data. If the removal action was truly “time critical,” U.S. EPA could have simply issued a Unilateral Administrative Order to the PRPs back in 2004.
3. U.S. EPA Completely Ignored Its Own Community Involvement Plan.
EPA published a Community Involvement Plan (the “Plan”) in December 2006, i.e., during the same time period that it was holding confidential discussions with the PRPs to discuss proposals to remove sediments from the Plainwell Impoundment Area. Page 11 of the Plan notes that there are “[l]ots of trust issues” regarding the historical handling of the Kalamazoo River remediation. In order to address these trust issues, several important points were identified in the Community Involvement Section of the Plan, including:
• The need to ask the municipalities if they have a plan on how to answer their communities’ questions about the site.
• The need to include minorities, including the African-American and Hispanic communities, in outreach activities.
• The approach to public involvement is important.
• The need to make strong efforts to work with communities.
• The need to make decisions that are based on local conditions versus national conditions.
These elements of the Plan were completely ignored and circumvented in favor of pursuing an unjustified time-critical removal action, thereby undermining the City’s ability to become involved in the decision-making process. Based on the reaction to the Order throughout the community, the “trust issues” in the City over the remediation of the site have only intensified.
4. It Is Not Clear that the Allied Paper Landfill Meets the Substantive Requirements of TSCA.
Because the Allied Paper Landfill is part of the Allied Paper/Portage Creek/Kalamazoo River Superfund Site, a TSCA permit is not required for on-site disposal of PCBs. However, the substantive requirements of TSCA must still be met. Those requirements are described in 40 CFR § 761.75. Again, although EPA has placed the City at a severe information disadvantage, a review of the § 761.75 requirements raises some obvious questions:
• Are the area soils relatively impermeable, as required by § 761.75(b)(1)?
• Are synthetic membrane liners required and in place? (See § 761.75(b)(2).)
• Is the bottom of the landfill above the historical high groundwater table, as required by § 761.75(b)(3)?
• Is there a hydraulic connection between the landfill and any standing or flowing surface water, as prohibited by § 761.75(b)(3)?
• Does the landfill have appropriate monitoring wells and leachate collection, as required by § 761.75(b)(3)?
On page 16 of the Administrative Settlement Agreement and Order of Consent forRemoval Action #C863 in section 21, d. it states “Respondents shall obtain U.S. EPA’s certification that the proposed receiving facility is operating in compliance with the requirements of CERCLA ….Respondents shall only send hazardous substances, pollutants, or contaminants from the Plainwell Impoundment Area to an off-Site facility that complies with the requirements of the statutory provision and regulation cited in the preceding sentence. For purposes of this Agreement, the Allied Operative Unit is not considered an “off-Site” location. “How can these types of regulations be waived when PCB sediments are being trucked into a dense urban neighborhood? Why would they be waived?
These are just some of the issues that need to be addressed before allowing more PCB-laden sediments to be disposed of at the Allied Paper Landfill. Indeed, the fact that the Allied Paper Landfill is itself a Superfund Site raises broader, equally important questions: What is being done to remediate and close the Allied Paper Landfill site? The disposal of PCB sediments from the Plainwell Impoundment Area is described as a “temporary” solution, but what is the permanent solution?

Hannah McKinney, mayor
City of Kalamazoo

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