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September 17, 2020

VIA EMAIL

Dr. Josh Smeraldi

USEPA – Region II

Emergency and Remedial Response Division

290 Broadway, 19th Floor

New York, NY 10007

Re: Dispute Resolution Proceeding

Riverside Industrial Park Superfund Site - Essex County, Newark, New Jersey

CERCLA Docket No. 02-2014-2011

Dear Dr. Smeraldi:

On behalf of PPG Industries, Inc. (“PPG”), I am writing in reply to the United States

Environmental Protection Agency’s (“USEPA Staff”) September 4, 2020 dispute resolution

response entitled “EPA Region 2 Staff Statement of Position” (the “September 4 Response”).

This reply addresses the arguments in USEPA Staff’s September 4 Response defending USEPA

Staff’s arbitrary and capricious actions in finalizing the Feasibility Study Report (“FSR”) for the

Riverside Industrial Park Superfund site (the “Site”), including USEPA Staff’s July 10, 2020

revisions to the FSR (the “July 10 Revisions”), its July 20, 2020 “final” FSR, and its July 21,

2020 letter declaring the FSR final (the “July 21 Letter”). This letter is written pursuant to

Paragraph 61 of the Remedial Investigation/Feasibility Study (“RI/FS”) Administrative

Settlement Agreement and Order on Consent (“AOC”), and USEPA Staff’s September 10, 2020

letter asking PPG to submit a reply as part of the dispute resolution process.

I. EXECUTIVE SUMMARY

In its July 30, 2020 letter invoking dispute resolution (the “PPG July 30 Letter”), PPG

identified two arbitrary and capricious actions taken by USEPA Staff in modifying and finalizing

the FSR. First, USEPA Staff violated the procedural requirements of the AOC, which required

USEPA Staff to provide PPG with a notice of deficiency and a 21-day opportunity to cure before

modifying PPG’s submittal. Second, USEPA Staff’s unilateral modifications to the FSR were

arbitrary and capricious because they were predicated on a materially flawed conceptual site

model (“CSM”) that disregarded material data from the remedial investigation (“RI”) at the Site.

In its September 4 Response, USEPA Staff denied both of these claims, arguing that (1) it

provided sufficient notice of deficiency as required by the AOC by conditionally approving

PPG’s draft FSR (the “June 8 FSR”) on June 23, 2020, which implied that the June 8 FSR was

deficient; and (2) USEPA Staff’s modifications to the FSR were supported by the evidentiary

Dr. Josh Smeraldi September 17, 2020

record, and thus not arbitrary and capricious. Despite USEPA Staff’s September 4 Response,

neither of these claims stands up to scrutiny.

First, USEPA Staff’s claim that it provided a notice of deficiency by conditionally

approving the June 8 FSR on June 23, 2020 is disingenuous at best—the chronology of USEPA

Staff’s actions leading up to the finalization of the FSR show that USEPA Staff never considered

the June 8 FSR deficient at all. Moreover, even if USEPA Staff had intended the June 23

conditional approval to serve as a notice of deficiency, it failed to convey this message. To the

contrary, USEPA Staff’s subsequent communications and actions contradicted this intent,

creating ambiguity and making it impossible for PPG to know that the June 23 conditional

approval was meant to be a notice of deficiency. Indeed, not only did USEPA Staff fail to clearly

identify the June 8 FSR as deficient, it also applied arbitrary deadlines that contradicted the

AOC’s requirements for correcting deficiencies. Additionally, USEPA Staff continued to act as

if the revisions were part of a collaborative process, and not a one-sided approval process. The

purpose of notice is to make a party aware of its rights and obligations, but through its actions,

USEPA Staff made it ambiguous where PPG stood in regards to the procedural requirements of

the AOC. Thus, even if USEPA Staff meant to give notice with its June 23 conditional approval,

it negated this very effort through its ambiguous actions.

Second, the technical arguments raised by USEPA Staff in its September 4 Response fail

to support its CSM. USEPA Staff’s September 4 Response defends a CSM that attributes

groundwater lead concentrations to soil/fill lead concentrations and Site-related releases, but as

PPG has consistently maintained and as will be shown below, technical analyses of the

conditions onsite, including USEPA Staff’s own analyses, demonstrate the groundwater lead

concentrations are due to lead present in subsurface historic fill. Surface soil/fill lead

concentrations, whether from historic fill or PPG operations 50 years ago, simply do not play a

role in groundwater lead concentrations at the site. Perhaps understanding the weakness in its

asserted CSM, USEPA Staff has sought to deflect attention from the data and technical analyses

which do not support its flawed CSM, by focusing extensively on PPG’s use of lead-containing

pigments despite having no affirmative evidence of onsite lead releases. Additionally, the timing

of the FSR and subsequent proposed remedial action plan (“PRAP”) show that USEPA Staff

willfully ignored material technical evidence repeatedly provided by PPG. This deliberate

dismissal of evidence on its own is a violation of the NCP, and it yielded a CSM that is at odds

with the technical facts and science.

In short, the arguments in USEPA Staff’s September 4 Response are unsupported by the

evidence. The record shows that USEPA Staff failed give proper notice of deficiency as required

by the AOC, and the technical arguments advanced by USEPA Staff in its September 4 Response

fail to properly support the key components of USEPA Staff’s CSM. For these reasons, USEPA

Staff’s finalization of the FSR (and the issuance of the PRAP shortly thereafter) was arbitrary

and capricious.


II. USEPA STAFF’S REVISION AND FINALIZATION OF THE FSR WERE

ARBITRARY AND CAPRICIOUS BECAUSE USEPA STAFF VIOLATED THE

PROCEDURAL REQUIREMENTS OF THE AOC

A. USEPA Staff Never Provided a Notice of Deficiency as Required by the AOC

It is undisputed that the AOC requires that “EPA shall not modify a submission without

first providing Respondent at least one notice of deficiency and an opportunity to cure within 21

days.” [AOC ¶ 41.] It is also undisputed, including by USEPA Staff’s September 4 Response,

that USEPA Staff’s June 23 conditional approval letter does not reference deficiencies or

otherwise state that it is providing notice of deficiencies (whether under the AOC or otherwise).

Simply put, USEPA Staff did not provide the required notice of deficiency.

USEPA Staff asserts that conditional approval may constitute notice of deficiency for

purposes of the AOC. [September 4 Response at 4.] As an initial matter, USEPA Staff’s June

23 conditional approval letter explicitly references Paragraph 41(b) in granting conditional

approval of the FSR. [USEPA Staff June 23 Letter at 1 (Exhibit 1-A to September 4 Response).]

But the letter contains no mention of Paragraph 41 (requiring notice of deficiency and 21 day

opportunity to cure), Paragraph 41(c) (USEPA Staff modification of submittals), Paragraph 43

(correction of deficiencies after notice of disapproval and deficiencies), or Paragraph 44 (same).

USEPA Staff’s position in the September 4 Response that USEPA Staff considered PPG’s

submittal deficient, yet sent a letter to PPG without any reference to any section of the AOC

relating to deficiencies – while only referencing the portion of the AOC relating to conditional

approvals – is hardly credible. Moreover, USEPA Staff’s after-the-fact explanation that a

conditional approval constitutes notice of deficiency does not comport with the text of the AOC.

[September 4 Response at 3-4.] The AOC is clear: “Upon receipt of a notice of disapproval,

Respondent shall, within 21 days or such longer time as specified by EPA, correct the

deficiencies and resubmit the plan, report, or other deliverable for approval.” [AOC ¶ 43(a).]

USEPA Staff therefore “shall not modify a submission” under AOC Paragraph 41(c) “without

first providing Respondent at least one notice of deficiency and an opportunity to cure within 21

days.” [AOC ¶¶ 41, 41(c).] These sections set out specific requirements regarding the provision

of a notice of deficiency and restrictions on USEPA Staff’s ability to modify submittals.

Contrary to USEPA Staff’s arguments, the AOC’s express terms do not allow for conditional

approval as a means of satisfying the conditions that allow USEPA Staff to unilaterally modify a

submittal.

B. USEPA Staff’s Actions Contradict its September 4 Response

The record shows that USEPA Staff never considered the FSR deficient, and never

intended for PPG to accept USEPA Staff’s June 23 revisions to cure the purported deficiencies.

Instead, PPG revised the FSR at USEPA Staff’s direction, and USEPA Staff recognized that the

June 23 revisions it provided to PPG were themselves deficient in approving a different version

of the FSR on July 20. [PPG July 30 Letter at 4-5.]


USEPA Staff argues that since USEPA Staff provided comments and a redline of the

FSR on June 23 with its conditional approval, PPG should have inferred that USEPA Staff was

implying that PPG’s FSR was “deficient” under the AOC. [Response at 3.] The fundamental

problem with USEPA Staff’s argument is that such an inference would also require PPG to infer

that USEPA Staff was violating the AOC, because while the AOC requires USEPA Staff to

provide PPG with 21 days to cure a deficient submittal, USEPA Staff’s June 23 cover email to

PPG explicitly stated that “PPG has 7 days to review and provide EPA a final version of the

documents for review and approval.” [Email from J. Smeraldi (USEPA) to S. Krall (PPG) (June

23, 2020) (emphasis added), attached as Exhibit A.]1 If one is to believe USEPA Staff’s account

of events—that USEPA Staff always intended the June 23 Letter to be a notice of deficiency—

this deadline becomes wholly inexplicable. If USEPA Staff had truly meant for its June 23

Letter to be a notice of deficiency, then it would have provided PPG with the applicable 21-day

deadline explicitly specified by the AOC. [AOC ¶¶ 41, 43.] By the logic of USEPA Staff’s

September 4 Response, PPG should have ignored the plain text of USEPA Staff’s June 23

communications and instead divined that USEPA Staff was providing an implicit notice of

deficiency with a 7 day period to cure in direct conflict with the AOC. Such a position is

untenable. The AOC requires USEPA Staff to provide notice—it does not require PPG to guess

at USEPA’s intent in the face of ambiguous or contradictory directions.

USEPA Staff’s subsequent actions confirmed that it did not consider PPG’s FSR

deficient. [PPG July 30 Letter at 5-6.] Instead, PPG and USEPA Staff were in the process of

collaboratively revising the FSR and correct material flaws in USEPA Staff’s June 23 (and July

10) FSR. [Id.] This was entirely consistent with the process used for multiple submittals in the

past, as USEPA Staff notes – a process that at no time involved even a suggestion that PPG’s

submittals were deficient or subject to unilateral modification by USEPA Staff. [September 4

Response at 3 n. 2.] USEPA Staff even went so far as to set aside its June 23 draft of the FSR

that PPG was supposedly required to follow, ultimately approving a different version. [Id.]

C. The Record Shows USEPA Staff Had No Intention of Considering PPG’s

Objections or Site Data

USEPA Staff’s response attempts to spin PPG’s collaborative efforts to revise the FSR as

acts of kindness on USEPA Staff’s part, arguing that “the Region showed great patience and a

willingness to work with PPG,” that USEPA Staff was merely “providing another layer of

clarification in the form of its July 10, 2020 markup” and that it tried to “help PPG understand

and implement Region 2’s comments.” [September 4 Response at 5.] To the contrary, PPG

understood and implemented USEPA Staff’s revisions where appropriate and supported by the

1 For ease of reference, this email, and the other emails referenced in PPG’s July 30 Letter, are

attached as Exhibit A (Email from J. Smeraldi (USEPA) to S. Krall (PPG) (June 23, 2020));

Exhibit B (Email from J. Smeraldi (USEPA) to S. Krall (PPG) (June 25, 2020)); Exhibit C (Email

from J. Smeraldi (USEPA) to S. Krall (July 10, 2020)); and Exhibit D (Email chain between K.

Bird (Woodard & Curran) and J. Smeraldi (USEPA) (July 17, 2020)).


RI/FS.2 To the extent PPG “refused to accept the Region’s comments,” it did so because USEPA

Staff’s comments did not reflect Site conditions and data. [Id.] PPG raised these concerns in

revised drafts of the FSR and in letters to USEPA Staff, but USEPA Staff chose to disregard

them, going so far as to unilaterally modify the FSR without even receiving PPG’s July 21

technical comment letter. [PPG July 30 Letter at 6.]

In USEPA Staff’s view, rather than raising such concerns, PPG’s role was merely to

“follow the Region’s directions” in preparing the FSR, and in failing to do so “acted

inappropriately” – regardless of whether data from the RI/FS supported USEPA Staff’s

positions. [Response at 2.] But contrary to USEPA Staff’s assertions, considering material

scientific and technical Site information and showing how they conflict with USEPA Staff’s

revisions was not inappropriate; it is required by CERCLA and the NCP. USEPA Staff’s

September 4 Response makes its approach to the FSR clear: PPG must generate a final FSR that

would meet USEPA Staff’s arbitrary deadlines and reflect USEPA Staff’s flawed CSM,

regardless of contradictory Site data or procedural protections of the AOC. Though USEPA Staff

has authority under the AOC to approve or modify PPG’s submittals under certain conditions,

that does not give USEPA Staff license to ignore data and scientific facts that it does not like, or

permit it to act arbitrarily and capriciously.

III. USEPA STAFF’S TECHNICAL ARGUMENTS FAIL TO SUPPORT THE KEY

COMPONENTS OF ITS CSM AND WILLFULLY IGNORE THE ANALYSES

PRESENTED BY PPG WHICH DISPROVE USEPA STAFF’S CSM

A. USEPA Staff Has Not Provided Evidence Tying Lead Concentrations in

Soil/Fill or Groundwater to Releases

USEPA Staff’s FSR is predicated on a materially flawed CSM based on a theory that

metal pigments used in paint manufacturing were released into surface soil/fill and are being

mobilized into subsurface soil/fill and then into saturated soil/fill, which then results in elevated

lead concentrations in groundwater. [September 4 Response at 7.] This CSM is not supported

by Site data or the RI. Instead, the RI established that historic fill acts as the source of lead to

groundwater on Site. [Id.]

USEPA Staff argues that historical information and the RI support its position that lead

releases occurred. [September 4 Response at 7.] However, the information mustered in USEPA

Staff’s September 4 Response does not result in this conclusion. Indeed, the “evidence”

presented by USEPA Staff’s in its September 4 Response amounts to little more than speculation

2 For instance, purported “deficiencies” identified in USEPA Staff’s September 4 Response such as

the use of compliance averaging were addressed in PPG’s subsequent FSR submittals. As for

USEPA Staff’s suggestion that PPG “did not identify one” example of a “not factually accurate”

statement in response to USEPA Staff’s request, that suggestion is false. [September 4 Response

at 5.] As a simple and obvious example, PPG informed USEPA Staff on June 25 that USEPA

Staff was incorrect when it revised the FSR to state that PPG had engaged in the production of

lead paint in Building 7 (Lot 63).


or contradicts the record.3 For example, USEPA Staff’s September 4 Response intentionally

misstates the record in asserting that “most buildings were constructed with drains and wall slots

with hinged flappers at floor level to allow discharge of sweepings/floor washing to outside the

building.” [September 4 Response at 9.] This is simply false. Based on RI observations of the

buildings onsite, the overwhelming majority of buildings, including Buildings 7 and 12, do not

have drains.4 [RIR at 2-4 to 2-8 (finding that only Building 14 had floor drains); Riverside RI/FS

Work Plan (2017) at 4-22 (no floor drains other than in Building 14 based on Woodard & Curran

observations, NJDEP memorandum, USEPA reports and building tenant/owner statements).]

This is unsurprising. Coatings entering floor drains would inevitably congeal and clog the

drains, and as such, it is typical for coatings operations to avoid floor drains altogether.

USEPA’s September 4 Response also claims that “accidental spills and discharges”

contaminated the Site soils/fill with lead, “as stated in the RI Report,” despite the fact that the

cited page in the RI Report does not reference lead or PPG’s operations in connection with

releases at all. [September 4 Response at 9; see RIR at 7-1 (stating only that “[d]uring historical

and current operations, material and waste handling, discharges from the facilities, and

accidental releases may have resulted in impacts to the surface and subsurface soils (including

fill material) [and] groundwater”) (emphasis added).]5 In the end, all of USEPA Staff’s

“evidence” amounts to little more than a belief that PPG’s operations were “inherently dirty” and

resulted in releases. [September 4 Response at 13.] This is speculation, not evidence.6 Indeed,

3 At most, USEPA Staff has established that PPG used lead-containing raw materials. USEPA

Staff seeks to do so primarily by citing to generic information about PPG’s operations, rather than

Site-specific information. The historical brochure USEPA Staff cites appears to relate to

Milwaukee operations, the cited testimony is not Site-specific, and the 1924 paint specifications

cited do not even appear to be PPG-specific. [September 4 Response at 7-8.]

4 Buildings 7 and 12 have been subject to the most scrutiny from USEPA Staff, and yet floor drains

in Building 7 were not observed by USEPA’s retained contractor (NUS Corporation) in their

1989 assessment of waste pathways. [See Final Draft Preliminary Assessment, Jobar Packaging,

Inc. (1989), Appendix C to Riverside SCSR,]

5 USEPA Staff also references the presence of lead dust within a power plant in support of its

arguments. [September 4 Response at 9.] However, lead dust within a building does not

constitute a release to the environment, despite what USEPA Staff implies. Additionally, USEPA

Staff only claims that PPG “housekeeping activities (such as floor cleaning and sweeping) likely

released the powdered white lead pigment to surface soil/fill material” – again, not evidence of a

lead release. [Id. (emphasis added).] Likewise, USEPA Staff cites a photograph depicting barrels

outside the Site as proof of Site-related lead contamination, but offers no evidence that these

barrels contained raw or finished materials, let alone lead-containing materials. [September 4

Response at 10.]

6 USEPA Staff charges that PPG does not have evidence to support its position. Setting aside

definitive determinations in the RI that historic fill is present at the Site and USEPA Staff’s

admissions in the September 4 Response that historic fill is a source of metal contamination,

USEPA Staff is demanding that PPG “prove the negative” – that is, present evidence that a

release did not happen, even though USEPA Staff has not shown that such a release occurred. It

is USEPA Staff who chose to unilaterally modify the FSR to incorporate a CSM based on


USEPA Staff has not identified any signatures of PPG’s operations demonstrating that elevated

lead concentrations in the surface soil/fill and groundwater at the Site are the result of releases.7

USEPA Staff attempts to remedy its lack of evidence by offering a correlation between

zinc and lead detections in soil/fill material at the Site, concluding that “[t]he likelihood that PPG

operations are a source of lead contamination in Site soil . . . is supported by a positive

correlation between lead and zinc in the soil/fill material samples collected during the RI.”

[September 4 Response at 11-12.] However, the opposite is true—the correlation between zinc

and lead at the Site actually disproves the very point USEPA Staff is attempting to make. For

one, the relationship between lead and zinc levels measured over the entire concentration range

remains linear throughout the Site. In particular, the correlation between lead and zinc levels for

the northern and southern portions of the Site yields similar slopes (see Figure 1 below), even

though southern portions of the Site are alleged to have been impacted by paint pigment-related

releases while the northern portions are not.

Figure 1 - Correlation of zinc and lead in soil/fill (mg/kg). Samples from the northern and

southern portions of the Site are shown in blue and green, respectively. Despite the different

potential sources of the zinc and lead contamination, the correlations identified similar slopes.

This correlation suggests that either the source of lead and zinc in the soil/fill is

consistent across the Site, such as from historic fill, or that the lead-zinc ratio is not useful for

identifying this difference. While USEPA Staff interprets the consistent relationship between

these metals as evidence of a Site release, this consistency is more accurately explained by the

speculative lead releases. The burden is on USEPA Staff to support these changes, which appear

baseless based on the RI.

7 Surface lead concentrations around Building 7 are all within the range of concentrations found by

NJDEP in historic fill, further indicating that no releases took place. [PPG July 30 Response at 7-

8 (citing NJDEP Historic Fill and Diffuse Anthropogenic Pollutants Technical Guidance, Table

4-2, at 5 (November 16, 2011).]


similar geochemical natures of lead and zinc. The dynamics of these metals in soil and

groundwater – including their affinity for adsorption to clays and organic matter and low

mobility over near-neutral pH levels – are similar, so it is only natural for concentrations of both

metals to be elevated in the same types of soils and conditions. In short, the correlation between

lead and zinc does not indicate either of these metals are attributable to releases.

B. Site Data Contradicts USEPA Staff’s CSM

1. Site data do not support USEPA Staff’s “top down” CSM

Site data do not support USEPA Staff’s CSM premised on a “top down” source of lead

contamination attributable to releases. [September 4 Response at 14.] USEPA Staff seeks to

support its CSM by reference to expected groundwater concentrations based on soil/fill lead

concentrations, relying on Kd values. [September 4 Response at 14.] According to USEPA

Staff, “[a]ssuming 800 mg/kg for lead in the soils/fill, and a partitioning coefficient or log Kd

values for lead ranging from 3.7 to 5, possible aqueous dissolved-phase lead concentrations are

in the range from 8 to 150 ug/L.” [Id.]8 USEPA Staff also states that “[t]otal lead concentrations

in groundwater were found to be greater than 5 ug/L across the Site and as high as 100 ug/L.”

[Id.] USEPA Staff’s problem is that its Kd analysis is independent of the source of lead in the

soil/fill – regardless of whether the lead in the soil/fill is attributable to historic fill or to

operations, the results of the Kd analysis would be the same. USEPA Staff therefore cannot

conclude from this analysis that the lead in groundwater is derived from releases rather than

historic fill. Indeed, the Kd analysis shows that groundwater lead concentrations across the Site

are consistent with contributions from historic fill that PPG has characterized as “background.”

[PPG July 30 Letter at 9 (identifying lead concentrations of 25 μg/L as background

concentrations).]

Instead of supporting its CSM, USEPA Staff has presented no other evidence, such as

soil profiles or other data analyses, that show evidence of the downward transport of lead from

surface soil/fill with elevated levels into the saturated zone. Nor has USEPA Staff attempted to

quantify the supposed rate of lead infiltration from the surface, where the purported lead releases

occurred, to the saturated zone. Lead is considered to be nearly immobile under the conditions

found at this Site, such that NJDEP classifies lead to be an “immobile chemical,” and is thus

unlikely to migrate in significant amounts from surface to subsurface soil. [NJDEP Guidance for

the Evaluation of Immobile Chemicals for the Impact to Ground Water Pathway (2008) at 4.] In

fact, using USEPA Staff’s own log Kd value of 3.7, estimated infiltration of lead from the

surface due to precipitation is less than a quarter of an inch in 100 years (0.4 cm) and infiltration

to a depth of 3 feet would require 25,000 years.9 In other words, USEPA Staff’s own numbers

8 USEPA Staff did not describe the source of, or the calculations used to derive, this wide range of

lead Kd values.

9 NJDEP’s simulations of a generic immobile contaminant with a Kd of 200 L/kg similarly show

an infiltration of only 3.6 inches in 100 years.


show that its “top down” infiltration model is baseless and physically impossible. Instead, lead

in groundwater is attributable to historic fill already present in the saturated zone.

2. USEPA Staff has not and cannot rebut PPG’s spatial correlation analysis

An unbiased review of Site data shows that that elevated lead levels in site soils/fill and

elevated lead levels in groundwater are not spatially correlated, contrary to USEPA Staff’s CSM

that lead in surface soil/fill attributable to releases is mobilizing into the subsurface and then

groundwater. [September 4 Response at 13, 18; PPG July 30 Letter at 8; PPG July 21 Letter at 2

(Ex. 1 to PPG July 30 Letter).] There are multiple examples of wells with low lead

concentrations located near elevated soil/fill concentrations and wells with elevated groundwater

concentrations that are located near low soil/fill concentrations. [PPG July 30 Letter at 8; PPG

July 21 Letter at 2 (Ex. 1 to PPG July 30 Letter).] USEPA Staff’s “top down” CSM has no

explanation for these occurrences, and USEPA Staff does not have a substantive response to

PPG’s analysis. Instead, USEPA Staff claims that a “point-by-point spatial correlation between

soil/fill material sample results and groundwater results cannot be undertaken” due to

groundwater gradients and lack of co-located samples. [September 4 Response at 18.]

USEPA Staff’s position is without merit. First, numerous soil/fill depth profiles are in

close proximity to groundwater monitoring wells. Second, PPG properly characterized sampling

depths (Boring B-59 is discussed in greater detail below).10 Third, USEPA Staff’s position that

“soil borings positioned downgradient or side-gradient relative to a monitoring well would not

have an effect on the groundwater contaminant concentrations” is wrong. [September 4

Response at 20.] Groundwater flow patterns at the Site indicate that saturated zone soil/fill are

reasonably well connected with adjacent areas, both “upgradient” and “sidegradient” of the

dominant groundwater flow direction at the Site, due to the tidal influence on the aquifer

underlying the Site. Table 1 (below) identifies monitoring wells and nearby soil/fill locations,

along with notes about their relative locations in response to USEPA Staff’s comments on Table

1 in PPG’s July 21 Letter. [September 4 Response at 20.] Table 1 demonstrates that at least 12

out of the 31 shallow monitoring wells do not show evidence of “top down” infiltration.

10 Groundwater depths are the reported depth to the water table, and most wells were screened over

a 10 ft. interval.


Table 1 Comparison of Groundwater and Nearby Soil/Fill Lead Concentrations

Well Nearest Soil

Sampling Location(s)

Relative Locationa

Concentrations Above PRG?

Maximum (Average) Groundwater Concentration

(μg/L)

Soil/Fill Concentration

Range (mg/kg)

Groundwater?b Soil/Fill?

E-1 B-59, B-77 Both locations are 30 ft from the well. B-77 is down- or

sidegradient, depending on tides. B-59 is upgradient.

No Yes 1.3 (1.0) 35-2,530

E-4 B-27 B-27 is 20 ft sidegradient. Yes No 7.4 (6.1) 213-421

E-6 B-4 B-4 is 10 ft sidegradient. No Yes 3.3 (2.3) 650-1,070

E-7 B-4 B-4 is co-located with the well. No Yes 2.0 (1.6) 650-1,070

MW-103

B-53 B-53 is 10 ft up- or sidegradient, depending on

tides.

Yes Barely 18.7 (11.0) 297-803

MW-105

B-38 B-38 is co-located with the well.

Yes No 47.6 (32.1) 18-794

MW-106

B-35, B-36, B-37, B-91

MW-106 is located on a groundwater mound. Soil

locations were chosen in each direction. All are between 30

and 55 ft from the well.

Yes No 26.5 (21.2) 19-504

MW-114

B-12, B-13 B-12 is 15 ft upgradient and B-13 is 15 ft downgradient,

depending on tides.

No Yes 0.28 (0.4) 171-2,000

MW-117

B-10, B-105 B-10 is 40 ft downgradient. B-105 is 50 ft sidegradient or upgradient, depending on the

tides.

Yes No 17.7 (9.5) 31-211

MW-120

B-61, B-62 B-61 is 20 ft sidegradient. B-62 is 15 ft upgradient.

Yes No 25.3 (16) 44-333

MW-122

B-102 B-102 is located 10 ft from the well and the gradient is highly

variable with the tides.

Yes No 7.0 (3.8) 174-264

MW-123

B-56, B-82 B-56 is located 25 ft sidegradient. B-82 is 25 ft up- or sidegradient, depending on

the tides.

No Yes 1.2 (0.7) 17.5-838

Notes: Source: RIR. (a) Soil/fill depth profiles for comparison to the groundwater data were selected based on their proximity to each monitoring well (many depth profiles are within 20 feet of the well, and all are within 55 feet), with consideration given to the groundwater flow direction. Given the tidal nature of the groundwater flow directions at the Site, soil/fill locations may fluctuate between being up-, down- or sidegradient from well locations during the course of the changing tidal cycles. Therefore, groundwater lead concentrations are influenced not only by locations directly upgradient of the sampling point. Distances given are approximate. (b) Based on the maximum groundwater lead concentration at listed well.


Additionally, USEPA Staff highlights minor sample depth errors in the figure showing

the monitoring well E-1 and nearby soil profiles, concluding that:

When these errors are corrected, the detected total lead

concentrations in E-1 groundwater samples collected at 10 feet

below the top of well casing (maximum total lead concentration of

1.3 ug/L) are commensurate with the one spatially comparable

soil/fill material sample collected in the nearby boring B-59, at a

depth of 9.0-10.5 feet bgs, with a relatively low-level detected lead

concentration of 34.9 mg/kg. The data therefore do not support

PPG’s position that low-level total lead concentrations in well E-1

were unrelated to the elevated lead concentrations in the nearby

soil/fill material.”

[September 4 Response at 21.]

USEPA Staff’s analysis of minor sample depth errors demonstrates its failure to consider

Site data or understand PPG’s position. [September 4 Response at 21.] Boring B-59 and

groundwater samples in nearby well E-1, which USEPA Staff argues do not support PPG’s

position, instead perfectly encapsulate the flaws of USEPA Staff’s “top down” infiltration CSM.

The highest soil/fill concentration (2,150 mg/kg, average of duplicates) at B-59 was measured at

2 to 4 feet below ground surface (ft bgs, after correcting for the presence of a soil mound).

Under USEPA Staff’s “top down” model, this elevated lead concentration near the surface

should result in elevated groundwater lead concentrations in well E-1. Instead, the groundwater

lead concentration measured in well E-1 was low (<1.5 μg/L), reflecting lower lead

concentrations in subsurface concentrations near the well (34.9 mg/kg), not the elevated lead

concentrations closer to the surface. Contrary to USEPA’s view, these data show that the

elevated soil/fill lead concentration in surface soil/fill at this location had no evident influence on

the subsurface soil/fill or groundwater lead concentrations.

3. USEPA Staff’s Pareto charts do not establish anything regarding

distribution of groundwater lead concentrations

USEPA Staff has presented Pareto frequency charts purporting to represent the frequency

and magnitude of the lead concentrations detected in the northern and southern portions of the

Site. [September 4 Response at 24.] According to USEPA Staff, these figures demonstrate that

the northern and southern portions of the Site have “widespread” lead contamination and that this

contamination is more severe in the southern portion of the Site. [September 4 Response at 26.]

In short, USEPA Staff misuses these Pareto charts, and the purported conclusions drawn from

these charts are not supported by USEPA Staff’s analysis.

The first portion of each Pareto chart is a simple bar chart with the samples ranked from

highest to lowest lead concentration. This is an effective method of identifying the range of

detected lead concentrations and for quickly identifying if (and if so, which) wells most

frequently have elevated lead concentrations, as USEPA Staff has done. Up to this point,


USEPA Staff’s approach was reasonable and appropriate for the type of analysis it chose to

conduct. However, USEPA Staff then uses the individual well concentration data to calculate

the “cumulative impact” of the lead concentrations detected at these wells (i.e., USEPA Staff

sums the relative detected lead concentrations at each well over time into one cumulative value).

This is an inappropriate approach that is not scientifically supportable in any way – concentration

data should not be added together to characterize the impact of the contaminants detected at a

site, and further concentrations cannot be summed over several sampling periods.11

As an example, in USEPA Staff’s figure for the northern portion (September 4 Response

Exhibit 24), three of the four highest lead concentrations were measured at well MW-120, which

thus accounts for approximately 40% of the agency's “cumulative impact.” [September 4

Response at 24.] While it is not entirely clear, USEPA Staff appears to be suggesting that 40%

of the total lead for the entire northern portion of the site can be found at well MW-120. It is

equally unclear how a well like MW-117, with three very different lead concentrations were

measured over the site sampling periods (ranging from 2 to 18 μg/L), fits into the “cumulative

impact” analysis. [September 4 Response at 24.] USEPA Staff has asserted that “about half” of

the “cumulative lead” in the northern portion of the site can be found in only two wells (MW-

117 and MW-120) and that half of the “cumulative lead” in the southern portion of the site can

be found in only four wells (MW-105, MW-107, MW-108, and MW-110). [September 4

Response at 24.] However, the range of and average lead concentrations in these two groups of

wells are very different, and the areas of the Site that they represent are also different – indeed,

“half of the cumulative lead” is not a metric that is meaningful for understanding the nature or

extent of contamination. [September 4 Response at 24.]

This “cumulative impact” assessment does not support USEPA Staff’s conclusion that

the southern portions of the Site are impacted by releases rather than historic fill. It also does not

provide further evidence to support USEPA Staff’s assertion that “an active groundwater remedy

is appropriate site-wide.” [September 4 Response at 24.]

C. USEPA Staff Ignored Relevant Site Data Regarding Lead Concentration

Variability

USEPA Staff has wrongly asserted that groundwater lead concentrations are being

governed via adsorption by soil/fill concentrations alone. [September 4 Response at 13.] If

surface soil/fill concentrations were the driver of the detected groundwater lead concentrations at

this Site, then the observed concentrations in groundwater would be expected to be relatively

11 The potential “impact” of a contaminant in the environment is typically evaluated by considering

the mass of contaminant. Models work by constructing mass balances, not concentrations.

Estimating the relative mass at each monitoring well requires considering the temporal

differences, the physical spacing between monitoring wells and/or other sampling points, and

groundwater flow directions, all of which USEPA Staff has refused to consider at the Site due to

the “insufficient” data available.


stable over time (reflecting the stable soil/fill concentrations leaching from surface soil/fill), even

in a tidally influenced aquifer like the one present beneath the Site.

Instead, the measured groundwater lead concentrations at the Site have varied over time,

indicating lead mobility is being influenced by other factors. Potential factors that can alter

adsorption dynamics and influence lead mobility that should be considered include pH, redox,

salinity, or the presence of organic matter. [PPG July 30 Letter at 10.] USEPA Staff has

disregarded the variability in groundwater data, stating that the data are insufficient to evaluate

groundwater variability over time. [September 4 Response at 27.] And yet USEPA Staff is

confident enough in the same data set to unilaterally modify and evaluate remedial alternatives in

the FSR.

In contrast to USEPA Staff’s decision to disregard Site data, PPG has evaluated the

factors that may be contributing to short-term increases in lead mobility in the monitoring wells

with the highest concentrations. Both low (<5 μg/L) and moderate (5-25 μg/L) lead

concentrations were detected in wells throughout the Site in at least one sampling period (Figure

2), which suggests that a spatially consistent source of lead is present at the Site, such as would

be found in historic fill, and that elevated groundwater lead concentrations are the result of short-

term, localized mobilization of lead from historic fill materials in response to groundwater

changes. [PPG July 30 Letter at 9.]

Figure 2 Monitoring Well Locations Grouped by Groundwater Lead Concentrations.

These three maps show groundwater monitoring wells grouped by those that have had any

lead measurements less than 5 μg/L, those that have had lead measurements between 5 and 25

μg/L, and those that have had any lead measurements over 25 μg/L, respectively. Low

groundwater lead levels (<5 μg/L) are widespread at the site. Lead concentrations are not

consistently elevated at the site; instead, in many wells, exceedances of the groundwater PRG

have been transitory. Moderate lead concentrations (5 to 25 μg/L) have been detected in


wells throughout the site during at least one sampling period, which suggests the presence of

a consistent source of lead, such as would be found in historic fill.

In contrast to USEPA Staff’s CSM, PPG’s CSM accurately describes the current site

conditions – widespread occurrence of moderate lead concentrations reflecting the consistent

contribution of historic fill, temporal variability of lead concentrations, and the significant

mismatches between soil/fill and groundwater lead concentrations – and suggests that elevated

groundwater lead concentrations are localized (and temporally limited) occurrences that will not

readily respond to the remedies USEPA Staff forced into the FSR.

D. USEPA Staff’s FSR Evaluation of Groundwater Alternatives on the Basis of

How They Address Lead Was Arbitrary and Capricious

USEPA Staff’s groundwater alternatives in the final FSR do not reflect the record

generated during the RI for the Site, which shows historic fill is the dominant contributor of lead

to historic groundwater at the Site. [PPG July 30 Letter at 8.] USEPA Staff’s evaluation of

remedial alternatives in the FSR was arbitrary and capricious because USEPA Staff evaluated

how the alternatives addressed lead, which is not attributable to a release and therefore not

actionable under CERCLA. [Id.]

USEPA Staff asserts that lead in groundwater is attributable to operations at the Site, and

that Groundwater Alternative 4 is USEPA Staff’s selected alternative to address these

groundwater impacts. [September 4 Response at 16, 18.] As demonstrated above, there is no

evidence of on-Site releases of lead to soil/fill, and Site data contradicts USEPA Staff’s “top

down” CSM for groundwater impacts – so there is no lead attributable to releases for

Groundwater Alternative 4 to remediate. Moreover, USEPA Staff’s own Kd analysis undercuts

its own changes to the FSR with respect to remedy selection and USEPA Staff’s rationale that

Alternative 4 can restore groundwater quality. [September 4 Response at 18.] Using a Kd of

5,000 (log 3.7) for the Site as USEPA Staff has suggested would result in a retardation factor in

the tens of thousands. Such a retardation factor would mean that it would take centuries to

millennia for a pump and treat system to reduce groundwater lead concentrations at the Site to

below the groundwater PRG. In other words, USEPA Staff’s own Kd value demonstrates that

USEPA Staff’s preferred groundwater remedy is completely impracticable for the Site.

USEPA Staff rejected PPG’s Groundwater Alternative 5 in part because, under that

alternative, “remaining groundwater contamination across the Site would not be actively

remediated.” [September 4 Response at 17.] Yet USEPA Staff’s own analysis shows that the

total lead concentrations in shallow monitoring wells on the southern portion of the Site have an

average total lead concentration of 3.98 ug/L and monitoring wells in the northern portion of the

Site have an average total lead concentration of 3.93 ug/L. [September 4 Response at 28-29

(Exhibit 28).] Given that these concentrations are below PRGs, USEPA Staff’s own analysis

demonstrates why site-wide, active groundwater remediation is not necessary and inconsistent

with the NCP.


Rather than continue to force this issue, USEPA Staff should defer selection of a

groundwater remedy pending further analysis and implementation of soil/fill and other remedies

on Site. If USEPA Staff’s CSM is correct, NAPL removal, UST removal, and soil/fill

excavation as part of the proposed waste and soil/fill remedies would address sources of impacts

to groundwater. USEPA Staff could then evaluate potential changes in groundwater contaminant

concentrations to determine whether any groundwater remedy is necessary or appropriate for the

Site.

IV. CONCLUSION

USEPA Staff’s actions in finalizing the FSR were arbitrary and capricious, both

procedurally and substantively. USEPA Staff chose to unilaterally modify the FSR without

regard to the procedural requirements in the AOC. USEPA Staff did so without providing notice

of deficiency to PPG. Contrary to USEPA Staff’s dispute resolution response, USEPA Staff’s

contradictory and ambiguous actions in revising the FSR made it impossible for PPG to infer that

USEPA Staff considered PPG’s FSR deficient. As far as PPG knew, USEPA Staff and PPG

were engaged in a collaborative process to revise the FSR – until USEPA Staff decided that

producing a defensible FSR would cause USEPA Staff to miss its arbitrary, self-imposed

deadlines.

Substantively, USEPA Staff’s version of the FSR is technically flawed and in violation of

the NCP due to ignoring relevant Site data. USEPA Staff’s FSR revisions were predicated on a

theory that lead in groundwater was attributable to Site releases. But USEPA Staff has not been

able to identify such a release, and the evidence USEPA Staff presents in its dispute resolution

response does not establish any different. Instead, Site data contradicts USEPA Staff’s “top

down” CSM, and shows that historic fill is the dominant source of lead to groundwater. USEPA

Staff’s own analyses only confirm this finding.

The only remedy is for USEPA Staff to reopen the FS process and for USEPA Staff and

PPG to generate an FSR with remedial alternatives that take Site data and the RI into account

and are technically and scientifically defensible. At minimum, USEPA Staff should discard its

erroneous groundwater remedy and defer its decision regarding groundwater until after the

soil/fill remedies are implemented.


* * *

PPG remains committed to working with USEPA Staff to complete the RI/FS. As

USEPA Staff is aware from our September 11 and September 14, 2020 correspondence, PPG is

also willing to further discuss these objections with USEPA Staff, consistent with Paragraph 61

of the AOC. Please let us know when USEPA Staff is available for these discussions.

Sincerely,

Gary P. Gengel, Esq.

of LATHAM & WATKINS LLP

Enclosures

cc: Mr. Steve Faeth, Esq. (PPG)

Mr. Scott Krall (PPG)

Mr. Kenneth Bird (Woodard & Curran)

Mr. Thomas Pearce, Esq. (Latham & Watkins LLP)

Mr. William Reilly, Esq. (USEPA)

EXHIBIT A

Email from J. Smeraldi

(USEPA) to S. Krall

(PPG) (June 23, 2020)

1

From: Smeraldi, Josh <[email protected]> Sent: Tuesday, June 23, 2020 12:58 PM To: Krall, Scott M <[email protected]> Cc: Ken Bird <[email protected]>; Nickerson, Jay <[email protected]>; Sivak, Michael <[email protected]>; Reilly, WilliamJ <[email protected]>; Gengel, Gary (NY) <[email protected]>; Pearce, Thomas (NY) <[email protected]> Subject: FS Conditional Approval and documents - Email 1 of 2

Hi Scott,

We have completed our review of the FS. Pursuant to Paragraph 41(b), of the AOC, EPA conditionally approves the June 2020 FS (see attached approval letter). EPA’s approval is conditioned upon PPG’s incorporation of the attached comments from the EPA mark-up of each document into the respective final reports.

Due to the size of these files, they will be sent in two separate emails. Please confirm that you received both emails. The attachments in this email include conditional approval letter, redline FS, response to comments, revised tables zip, and a zip with edits to appendices A and B. Email 2 will include corrections needed for the figures.

As a reminder, PPG has 7 days to review and provide EPA a final version of the documents for review and approval. We appreciate your cooperation and we look forward to continuing to work with you in this cooperative manner. Let me know if you have any questions.

Thanks,

Josh

-- Josh Smeraldi, Ph.D. Env. Eng EPA Region 2 Superfund and Emergency Management Division 212 637 4302

EXHIBIT B


(USEPA) to S. Krall

(PPG) (June 25, 2020)

1

From: Smeraldi, Josh <[email protected]> Sent: Thursday, June 25, 2020 4:30 PM To: Krall, Scott M <[email protected]> Cc: Pearce, Thomas (NY) <[email protected]>; Ken Bird <[email protected]>; Gengel, Gary (NY) <[email protected]>; Sivak, Michael <[email protected]>; Reilly, WilliamJ <[email protected]> Subject: EPA follow up

Hi Scott,

As we discussed during the call today, we (EPA) mentioned that we will talk internally and let you know how we would like to proceed with the FS. In particular, EPA appreciates PPG’s stated concerns about certain factual statements in the FS which EPA agreed to discuss further internally, as we have done in the past, in the collaborative spirit of the relationship EPA has shared wth PPG throughout the RI/FS process.

Further, as we discussed, and consistent with our collaborative relationship, EPA would like to offer PPG, for their current review period, that PPG accept/incorporated changes in the redline EPA provided, as you see appropriate. For any changes where PPG does not agree, please provide a comment explaining why PPG believes the information to not to be factually accurate. Please keep in mind that we still have time constraints and to please focus your review on your most significant/salient concerns. We believe these were discussed on the call. For example, PPG agreed that issues associated with the delineation are acceptable, with the understanding delineation would be refined in the RD. Keep in mind, the discussions in the FS need to support the decisions made for the delineations.

So to summarize, accept appropriate edits in EPA provided redline FS document, focus your efforts on significant concerns, and provide comments for EPA review. Please send back a redline with your text/comments by Tuesday 6/30.

Thank you,

Josh


EXHIBIT C


(USEPA) to S. Krall

(PPG) (July 10, 2020)

1

From: Smeraldi, Josh <[email protected]> Sent: Friday, July 10, 2020 6:23 PM To: Krall, Scott M <[email protected]> Cc: Ken Bird <[email protected]>; Sivak, Michael <[email protected]> Subject: EPA response for FS

Hi Scott,

We completed our review of the FS however we have not completed our formal response to PPG’s letter. In the interest of time, I am forwarding our redline and comments on the FS so that PPG can begin reviewing. The letter will provide more detail and should be sent Monday but, generally, EPA believes that lead is a site-related contaminant and is impacting the groundwater. Due to this determination, the proposed groundwater alternative 5 would not meet groundwater ARARs and is screened out (additional concerns are mentioned in the FS). Table 5-1 and Table 6-1 need to be restored to EPA’s June 22 version (attached).

Furthermore, it was brought to our attention that guidance on institutional control states that ICs “shall not substitute for active response measures…as the sole remedy unless such active measures are determined not to be practicable, based on the balancing of trade-offs among alternatives that is conducted during the selection of remedy.” https://www.epa.gov/sites/production/files/documents/final pime guidance december 2012.pdf This affects soil/fill alternative 2. ICs along with a fence is not a permanent or enduring engineering control for contaminated soils and the NAPL removal does not address the soil contamination across the site. In the interest of time, we only changed the comparative analysis to state that soil/fill alternative 2 does not meet ARARs.

Below are a few items that need to be updated: 1. TEXT – Please review edits and comments in the word document2. FIGURES – There are a few figures that need edits. Please see attached file.3. COSTS – Some cost estimates needed to be adjusted due to the reduced cap acreage; Attached is the corrected

Appendix B and Table 6-2.4. TABLE 3-1 – Please see attached.

a. We accepted edits to move the sentence on vapor intrusion from Section 3.1.2 to Section 3.4.2. To beconsistent with the text, the title of Table 3-1 was updated (see attachment).

b. Footnote 2 was deleted and has been restored (see attachment).5. TABLE 3-6 - Nickel needs to be removed from Table 3-6 (since nickel has no ARAR exceedances). See

attachment

2

Let me know if you have any questions. Please review and let us know your response by Friday 7/17. Also, please raise any concerns as soon as possible because we do not have any time for week long reviews after this point.

Thanks,

Josh


EXHIBIT D

Email chain between K. Bird

(Woodard & Curran) and

J. Smeraldi (USEPA) (July 17,

2020)

1

From: Ken Bird <[email protected]> Sent: Friday, July 17, 2020 5:53 PM To: Smeraldi, Josh <[email protected]>; Krall, Scott M <[email protected]> Cc: Sivak, Michael <[email protected]>; Reilly, WilliamJ <[email protected]> Subject: RE: EPA response regarding changes in FS

Josh –

Thank you for your email. I was surprised, given the process we had agreed upon, to see that EPA’s position is now that it will not be reviewing the FS we intend to submit today. At EPA’s direction, PPG and Woodard & Curran revised the FS to respond to EPA’s comments from July 10 and July 14. Given the material technical issues raised, EPA’s refusal to review the revised FS is an arbitrary and capricious action that would warrant dispute resolution.

We plan to submit the revised FS today in accordance with the schedule EPA set in its July 10 email, and appreciate and anticipate EPA’s review and comments. If EPA declines to review the revised FS, please be advised PPG intends to invoke dispute resolution.

Thank you, Ken

From: Smeraldi, Josh <[email protected]> Sent: Friday, July 17, 2020 2:44 PM To: Krall, Scott M <[email protected]>; Ken Bird <[email protected]> Cc: Sivak, Michael <[email protected]>; Reilly, WilliamJ <[email protected]> Subject: EPA response regarding changes in FS

Hi Scott and Ken,

EPA appreciates PPG reaching out to discuss the FS earlier today. Based on our conversation, PPG is proposing certain changes to the FS that are inconsistent with EPA’s June 23, 2020 conditional approval of the FS, which stipulated that the FS was approved provided that EPA’s markup and comments were incorporated. After the conditional approval, in the spirit of working cooperatively, EPA re-reviewed the FS, at PPG’s request, and on July 10 submitted to PPG a new markup.

At this time, EPA is not accepting any additional changes to the FS that EPA sent to PPG on 7/10. Should PPG have additional concerns or disagree with EPA’s edits or comments, PPG may submit those concerns as comments during the public comment period and EPA will respond to those concerns in the responsiveness summary.

Please let EPA know immediately whether PPG will incorporate all of EPA’s July 10 comments into the FS. If PPG does not accept EPA’s comments, EPA will consider its other options under paragraph 41 of the settlement agreement.

2

Thanks,

Josh


gary p. gengel

Documents