E-M:/ Temporary facility in Kalamazoo

[Hannah McKinney <mckinney@kzoo.edu>]

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