NCD980602163_19961106_Warren County PCB Landfill_SERB C_Memo to Bill Meyer from Rob Gelblum-OCR

November 6, 1996
--MEMORANDUM--
TO: Bill Meyer
FROM: Rob Gelblum f!J(J
RE: Material You Brought Me Regarding PCB Landfill
Title 40, CFR, Section 761.41 has indeed been "redesignated" as 40 CFR §761.75, "[PCB]
Chemical Waste Landfills." Attached is a copy of that section, with provisions of it marked which
are referenced in EP A's 12/14/81 Final Plans & Specifications Approval Letter. Among the General
Requirements and Technical Conditions in EPA's 6/4/79 Conceptual Approval Letter which were
kept in effect by the 12/14/81 letter (see below), none referenced any provision of what is now 40
CFR §761.75. The attached July 1, 1994 copy of that CFR section is the most recent I could secure
quickly (a 1995 edition of CFR I found on the Internet, which was too hard to print any particular
part of, shows no changes in that section from 1994 to 1995).
Patrick's 10/28/96 memo to you listing the Landfill-related documentation he found relative
to each Condition in the 12/14/81 letter, and summarizing those Conditions, includes nothing about
Conditions 11.H.4. and 5., which read:
4. Changes in Program
Upon a determination by the state or EPA that containment has failed, the sampling
frequency of either ground or surface water sampling may be modified. EPA may
also require the installation of additional monitoring wells and an expansion of the
list of monitoring param,eters.
5. Well location and screened elevations shall be coordinated with EPA Region IV in
the field or by telephone as appropriate.
Nor does his memo or list of conditions refer to section I. of the Conditions, which states that
General Requirements 1, 2 and 5 from the 6/4/79 letter remain in effect, as do Technical Conditions
1-4 and 6-8 from that letter. Copies of the pages from the 6/4/79 letter containing those
Requirements and Conditions are attached hereto.
Turning to the issue raised by the Landfill Working Group concerning the necessary extent
of compliance with CERCLA and the NCP, the group raises that issue based chiefly on Special
Condition 10 of the EPA Assistance Agreement regarding the PCB cleanup and landfill
construction. That condition states that "[a]ll activities conducted under this cooperative agreement
will be consistent with the [NCP]." But it may be worth noting that the "Project Period" for that
Agreement was 5/25/82-5//24/83 (see box 25 on page 1 of the Agreement). It is thus questionable
whether the State is still "conduct[ing] activities under this cooperative agreement," and thus whether
consistency with the NCP is still required. The position that it is not required at this point is
bolstered by the Warren County PCB Landfill's being treated as for all intents and purposes a
TSCA-regulated site.
In any event, were disgruntled citizens to take their argument further that CERCLA applies
to this site and that it has been violated, their avenue would be a citizen suit under Section 31 O of
CERCLA. Of the two grounds under that section for filing such a suit, the only one they could hope
to establish would be that the State is in violation of a "standard, regulation, condition, requirement,
or order which has become effective pursuant to [CERCLA ]. .. " However, there are stumbling blocks
to such suits.
To establish standing, plaintiffs must show: "injury in fact" (not necessarily physical) as a
result of the State's conduct; a causal connection between their injuries and the alleged violations;
and likelihood that the injury would be redressed by a favorable decision. Also, if what is occurring
at the Landfill were viewed as part of an ongoing CERCLA cleanup, all suits construed as
challenges to that cleanup would be barred under CERCLA § 113(h) prior to the taking of any
government enforcement action. Further, a citizen suit would be blocked by a showing that diligent
"prosecution" (typically in the civil sense) was underway. (Prompting EPA to initiate such action
would be the hypothetical plaintiffs' other legal option for pressuring the State.) Finally, would-be
citizen suit plaintiffs would have to show that any alleged violations are not "wholly past," i.e., that
they are still occurring or are likely to recur.
Two other points bear mentioning in regard to whether the State could conceivably lose a
CERCLA citizen suit in relation to this site. It is worth noting the exclusion from liability that exists
under CERCLA §107(d)(2) for State and local governments acting in response to an emergency
created by an environmental emergency, absent gross negligence or intentional misconduct. Perhaps
more importantly, pursuant to a U.S. Supreme Court decision earlier this year (which among other
things reversed a prior CERCLA decision) States are for all intents and purposes immune from
lawsuits by private parties in federal court--the only place a CERCLA citizen suit may be filed.
Knowing almost nothing of the history of the Ward PCB spill cleanup and the
construction/operation of the Landfill, I'm in no position to address the extent to which the State has
complied with the NCP since its receipt of the grant that called for such compliance. However, I've
attached hereto relevant portions of the best brief synopsis I've ever come across of the NCP (from
Govt. Institutes' Superfund Manual). It dates from 1993, but there's been no relevant change since
then.
Let me know if I can be of further assistance regarding these matters.
Attachments
DATE
1994 **
11-94
PCB LANDFILL
ANALYTICAL RESULTS SUMMARY
MONITORING WELL SURF ACE WATER
<0.1 PPB (4 SAMPLES) <0.1 PPB (4 SAMPLES)
STREAM SEDIMENT
<0.1 PPM ( 4 SAMPLES)
** Does not include the data from the July 1994 sampling event (i.e. the Pauline Ewald Data). Analytical
results from that sampling event were:
DATE
07-94
MONITORING WELL
<0.1 PPB (5 SAMPLES)
PPB = parts per billion PCB'S
SURF ACE WATER
<0.1 PPB (5 SAMPLES)
STREAM SEDIMENT
<0.1 PPM (5 SAMPLES)
PPM = parts per million PCB'S
PCB LANDFILL
LEACHATE SAMPLES
all values expressed as PPB (parts per billion PCB'S)
DATE INFLUENT EFFLUENT
03-07-83 0.42 0.24
03-07-83 0.44
03-08-83 0.34 0.28
03-08-83 0.25 0.043
03-08-83 2.80 0.062
03-14-83 <1.0
03-16-83 <1.0 <1.0
03-21-83 2.471 0.184
03-22-83 1.408 0.294
03-23-83 1.349 0.107
03-24-83 <0.1 <0.1
03-28-83 <0.1 <0.1
03-30-83 0.279 <0.1
04-01-83 0.10 <0.1
04-05-83 0.4 0.1
04-07-83 0.20
04-11-83 0.20 <0.1
04-12-83 0.50 <0.1
04-13-83 1.114 0.708
04-14-83 0.708 0.196
04-18-83 <0.1 <0.1
04-19-83 0.22 0.21
04-20-83 0.27 0.24
04-25-83 0.60 <0.1
04-26-83 0.20 <0.1
04-27-83 <0.1
05-10-83 0.20 <0.1
05-25-83 0.10 <0.1
06-01-83 <0.1
07-20-83 1.63
07-29-83 <0.1
10-21-83 <0.1 <0.1
11-29-83 <0.1 <0.1
01-26-84 0.30 <0.1
03-07-84 <0.1 <0.1
04-03-84 0.60 <0.1
05-03-84 0.60 <0.1
06-06-84 <0.1 <0.1
07-17-84 0.30 <0.1
08-16-84 <0.1
PCB LANDFILL
LEACHATE SAMPLES
all values expressed as PPB (parts per billion PCB'S)
DATE INFLUENT EFFLUENT
09-11-84 0.20 <0.1
11-05-84 0.20 <0.1
12-11-84 <0.1 <0.1
02-18-85 <0.1
03-26-85 <0.1 <0.1
04-13-85 <0.1 <0.1
05-23-85 <0.1 <0.1
06-27-85 <0.1 <0.1
07-16-85 <0.1 <0.1
08-13-85 <0.1 <0.1
09-18-85 <0.1 <0.1
10-24-85 <0.1 <0.1
11-13-85 <0.1 <0.1
03-04-85 <0.1 <0.1
04-24-85 <0.1
05-06-86 0.18
03-21-89 <0.1
04-19-90 <0.1 <0.1
05-03-90 <0.1 <0.1
05-08-90 <0.1 <0.1
08-28-90 <0.1 <0.1
09-27-90 0.20 <0.1
10-25-90 <0.1 <0.1
04-25-91 <0.1
05-30-91 <0.1
10-29-91 <0.1
10-27-92 <0.1
02-26-93 <0.1 <0.1
05-93 <0.1 <0.1
07-93 <0.1 <0.1
08-93 <0.1 <0.1
11-93 <0.1 <0.1
11-94 <0.1 <0.1
01-95 0.2 <0.1
02-95 <0.1 <0.1
07-95 <0.1 <0.1
08-95 <0.1 <0.1
INFLUENT -leachate prior to entering treatment works filtration system.
EFFLUENT -leachate after discharge from treatment works filtration system.
PRIVATE WATER WELL SAMPLES
DATE SAMPLE LOCATION RESULTS
08-24-82 PRIVATE RESIDENCE WELL <0.1 PPB
08-24-82 PRIVATE RESIDENCE WELL <0.1 PPB
01-13/19-83 PRIVATE RESIDENCE WELL <0.1 PPB
(35 WELLS FOR 45 RESIDENCES)
07-16-85 PRIVATE RESIDENCE WELL <0.1 PPB
6/93-7/93 PRIVATE RESIDENCE WELL <0.1 PPB**
(37 WELLS)
PPB= parts per billion PCB'S
** (six of the analytical results indicated detectable levels of pesticides)
DATE
01-06-83
01-06-83
01-12-83
01-12-83
08-28-89
05-03-90
04-18-90
04-18-90
04-18-90
04-18-90
10-29-91
02-26-93
07-94 **
07-94 **
07-94 **
ND -none detected
PPB = parts per billion
PPM = parts per million
PCB LANDFILL
MISCELLANEOUS SAMPLES
SAMPLE LOCATION
GAS VENT EXHAUST
LEACHATE COLLECTION
PIPE EXHAUST
AMBIENT AIR SAMPLES
GAS VENT EXHAUST
LEACHATE LAGOON WATER
SOIL SAMPLE
GRASS ( 4 SAMPLE SITES)
SOIL ( 4 SAMPLE SITES)
CHARCOAL FROM
TREATMENT WORKS
LEACHATE LAGOON SEDIMENT
SOIL
LEACHATE LAGOON SEDIMENT
SOIL
LANDFILL CONTENTS
LEACHATE
** from the July 1994 sampling event ( Pauline Ewald Data)
RESULTS
3.00 PPB
<0.1 PPB
ND
2.00 PPB
<0.1 PPB
<0.1 PPM
<0.1 PPM
<0.1 PPM
<0.1 PPM
0.27 PPM
<0.1 PPM
0.12 PPM
23 @<0.1 PPM
1@ 1.45 PPM
1 @0.22 PPM
1 @301.4 PPM
1@ 151.8 PPM
<0.1 PPB
PCB LANDFILL
SUMMARY OF SAMPLES ANALYZED FOR PCB'S
PRIVATE
MON. SURFACE STREAM WATER
DATE WELL WATER SEDIMENT LEACHATE WELL SOIL OTHER
1982 2
1983 59 35 4
1984 8 16 16 19
1985 16 16 16 19 2
1986 16 16 16 4
1987 4 4 4
1988 8 8 8
1989 8 8 8 1 1
1990 8 8 8 12 1 5 6
1991 8 8 8 3 1
1992 8 8 8 1
1993 8 8 8 8 37 1
1994 ** 4 4 4 2 5
1995 8
** Does not include the following from the 1994 sampling event in July (i.e. the Pauline Ewald Data)
PRIVATE
MON.
DATE WELL
1994 5
SURFACE
WATER
5
STREAM
SEDIMENT
5
WATER
LEACHATE WELL SOIL OTHER
2 1 25 6
PCB LANDFILL
ANALYTICAL RESULTS SUMMARY
DATE MONITORING WELL SURF ACE WATER STREAM SEDIMENT
1984
06-06 <0.1 PPB ( 4 SAMPLES) <0.1 PPB (8 SAMPLES) <0.1 PPM (8 SAMPLES)
12-11 <0.1 PPB ( 4 SAMPLES) <0.1 PPB (8 SAMPLES) <0.1 PPM (8 SAMPLES)
1985
05-24 <0.1 PPB (8 SAMPLES) <0.1 PPB (8 SAMPLES) <0.1 PPM (8 SAMPLES)
11-13 <0.1 PPB (8 SAMPLES) <0.1 PPB (8 SAMPLES) <0.1 PPM (8 SAMPLES)
1986
05-06 <0.1 PPB (8 SAMPLES) <0.1 PPB (8 SAMPLES) <0.1 PPM (8 SAMPLES)
11-18 <0.1 PPB (8 SAMPLES) <0.1 PPB (8 SAMPLES) <0.1 PPM (8 SAMPLES)
1987
16-04 <0.1 PPB ( 4 SAMPLES) <0.1 PPB (4 SAMPLES) <0.1 PPM ( 4 SAMPLES)
1988
02-02 <0.1 PPB (4 SAMPLES) <0.1 PPB ( 4 SAMPLES) <0.1 PPM ( 4 SAMPLES)
07-06 <0.1 PPB ( 4 SAMPLES) <0.1 PPB ( 4 SAMPLES) <0.1 PPM ( 4 SAMPLES)
1989
03-21 <0.1 PPB ( 4 SAMPLES) <0.1 PPB (4 SAMPLES) <0.1 PPM ( 4 SAMPLES)
10-25 <0.1 PPB ( 4 SAMPLES) <0.1 PPB ( 4 SAMPLES) <0.1 PPM ( 4 SAMPLES)
1990
04-19 <0.1 PPB ( 4 SAMPLES) <0.1 PPB (4 SAMPLES) <0.1 PPM (4 SAMPLES)
10-25 <0.1 PPB ( 4 SAMPLES) <0.1 PPB ( 4 SAMPLES) <0.1 PPM (4 SAMPLES)
1991
04-24 <0.1 PPB ( 4 SAMPLES) <0.1 PPB ( 4 SAMPLES) <0.1 PPM ( 4 SAMPLES)
10-28 <0.1 PPB ( 4 SAMPLES) <0.1 PPB ( 4 SAMPLES) <0.1 PPM (4 SAMPLES)
1992
05-13 <0.1 PPB ( 4 SAMPLES) <0.1 PPB ( 4 SAMPLES) <0.1 PPM ( 4 SAMPLES)
11-24 <0.1 PPB ( 4 SAMPLES) <0.1 PPB ( 4 SAMPLES) <0.1 PPM ( 4 SAMPLES)
1993
05-93 <0.1 PPB ( 4 SAMPLES) <0.1 PPB ( 4 SAMPLES) <0.1 PPM ( 4 SAMPLES)
11-93 <0.1 PPB ( 4 SAMPLES) <0.1 PPB ( 4 SAMPLES) <0.1 PPM ( 4 SAMPLES)