letter regarding respondents' position in furtherance of

November 25, 2016

VIA E-MAIL

Ms. Mary PetersonU.S. Environmental Protection Agency Division Director, Region VII,Superfund Div.11201 Renner Boulevard Lenexa, KS 66219

Re: Respondents' Position in Furtherance of Dispute ResolutionWest Lake Landfill Superfund Site, Operable Unit-1, Bridgeton, MO fEPA Docket No. VII-93-F-0005!

Dear Ms. Peterson:

On behalf of Cotter Corporation (N.S.L.) ("Cotter"), Bridgeton Landfill, LLC ("Bridgeton"), and Rock Road Industries, Inc. ("Rock Road") (collectively, the non- federal "Respondents"), we write to further communicate our position concerning the October 14, 2016 letter from the United States Environmental Protection Agency ("EPA") notifying Respondents of EPA's intent to impose stipulated penalties under the 1993 Administrative Order on Consent for Remedial Investigation/Feasibility Study ("AOC") for the referenced site.

In accordance with procedures set forth in Section XIX of the AOC, Respondents submitted a letter to EPA on October 28, 2016, invoking dispute resolution concerning the EPA's proposed stipulated penalties. EPA responded to that letter on November 10, 2016. Following receipt of EPA's November 10 response, EPA and Respondents have engaged in good-faith discussions in an effort to reach agreement concerning this matter. As of the date of this submission, however, no such resolution has been reached. In order to comply with the requirements of Paragraph 74 of the AOC, Respondents are therefore submitting this position statement to EPA Region VII.

In Respondents' October 28 letter, we reminded EPA that Respondents never agreed to be bound to the schedule that EPA relies upon for its imposition of stipulated penalties under the AOC. Moreover, Respondents have previously advised EPA that the schedule was unrealistic. While the Respondents agreed to

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perform the work requested in EPA's December 9, 2015 Scope of Work ("SOW"), and to engage in best efforts to meet the EPA's aggressive deadlines, the Respondents also expressed their concerns about the practical ability to meet such deadlines, given the nature and scope of the deliverables requested.1 Indeed,

EPA itself agrees in its November 10, 2016 letter, "that the schedule to prepare critical documents to support the long-awaited final remedial decision was aggressive."

That statement reinforces what Respondents have been communicating to EPA since agreeing to perform the work set forth in the SOW.2 In every letter from

Respondents notifying EPA of Respondents' need for additional time to complete certain deliverables, Respondents consistently informed EPA that we were engaging in our best efforts to complete the work by the specified dates, as opposed to committing to hard-and fast-deadlines. For instance, in our July 11, 2016 letter, we informed EPA that "Respondents expect to be in a position to deliver the draft RI Addendum by July 29, 2016." Additionally, in our August 26, 2016 letter, Respondents informed EPA that we "anticipate that [the BRA] will be submitted to EPA by September 23, 2016," and that "Respondents anticipate submittal of the draft FFS in portions beginning September 29, 2016." In neither instance did Respondents bind themselves to any schedule, or claim these deadlines "could be met," as EPA states at page 3 of its November 10 letter. Indeed, in EPA's September 22, 2016 letter, EPA acknowledged that Respondents "project, but do not commit to a submittal of the fate and transport documentation by the end of September."3 Respondents appreciate EPA's prior

willingness to work with us concerning the timing of these deliverables, and hope that this understanding will continue through the completion of this RI Addendum/FFS task.

With regard to EPA's position that Respondents should have invoked the dispute resolution provisions back in December 2015: When EPA issued its Scope of Work,

Mary PetersonNovember 25, 2016

1 See October 28, 2016 Letter from Respondents to EPA, 2 (quoting December 16, 2015 Letter

from Cotter to EPA and December 18, 2015 Letter from Bridgeton and Rock Road to EPA).

2 Indeed, in the March 20, 2016 cover email transmitting to EPA the revised Final Work Plan for the

RI/FFS work, Respondents objected to EPA's direction to remove Respondents' concerns about the

schedule from the Work Plan, and ultimately agreed to remove the language in question

specifically (and only) at EPA's request. Specifically, we said: "As we've advised EPA on numerous

prior occasions, we continue to have real concerns about the aggressive schedule set by EPA for

the completion of this work. We'll make every effort to timely meet it, and will continue to keep

EPA apprised of our progress as the work progresses." Since that time, Respondents have indeed

made every effort to meet the schedule, and have indeed continued to keep EPA apprised of our

progress.3 Respondents respectfully disagree with EPA's assertion that Respondents' position concerning the

schedule is "disingenuous," particularly in light of the foregoing statements.


we said that we did not view dispute resolution as necessary at that time. As indicated in our respective letters, Respondents committed to performing the work but also understood that EPA would work with us to modify the projected time frames for completion of that work, as needed. As noted herein, until the issuance of EPA's recent letter, Respondents and EPA were indeed able to work together successfully with regard to the timing of the various submissions.

Respondents also respectfully disagree with the third contention in EPA's November 10, 2016 letter regarding Respondents' submissions - namely, that the draft RI Addendum submitted to EPA on July 29, 2016 was so critically deficient that EPA cannot "perform a thorough review and provide timely comments to Respondents." Respondents submitted an otherwise complete copy of the draft RI Addendum (including appendices, tables, and figures). Despite this, EPA has chosen to construe the delay of Respondents' submission of the BRA and Fate & Transport analysis components as a complete failure to submit the RI Addendum. In its November 10 letter, EPA speaks of its inability to review Section 7 of the RI Addendum due to lack of certain fate and transport calculations, and alludes to an inability to assess human health risks due to the lack of an updated BRA. This position disregards the fact that the vast bulk of the RI Addendum4 are focused

primarily on the nature and extent of RIM at the Site, and therefore discuss purely factual information about the Site and known occurrences of chemical constituents within it (based on the results of recently performed investigations). Setting Section 7 aside, it strains credulity to suggest that EPA's ability to timely review these sections was severely hampered by the lack of an updated BRA or Fate and Transport information.

In sum, by not taking any middle ground regarding assessment of penalties, EPA fails to acknowledge that it had substantial and largely complete information to review while awaiting submission of the BRA and Fate & Transport analysis. Accordingly, even accepting EPA's assertion that it cannot "fully review" Respondents' deliverables and provide full comments without the BRA and Fate and Transport components, Respondents should not be penalized as if they had not already submitted nearly 7,000 pages of text, tables, figures and appendices to EPA. Respondents have always acted in good faith regarding their submissions, and we had hoped (and still hope) that EPA would be amenable to a reasonable resolution regarding this penalty issue.

4 Sections 1 through 6 of the RI Addendum are entitled "Introduction," "Summary of

Investigations," "Site Background," "Site Investigation Activities," "Physical Characteristics of the

Study Area," and "Nature and Extent of Radiologically Impacted Materials," respectively. Section 8

deals with the nature and extent of non-radiological chemicals within OU-1. These seven sections

of the RI Addendum collectively comprise 174 of the 222 pages that make up the non-summary

portions of the document text.


Finally, regarding EPA statements in its November 10 letter responding to Respondents' well-founded concerns about the "sapping of Respondents' resources," EPA appears to have missed the forest for the trees. It is true that Respondents highlighted stormwater sampling in our October 28, 2016 letter, and it therefore makes sense that EPA focused on this issue in its response. But focusing only on stormwater sampling ignores the bigger picture: that this is just one of many other, substantial additional tasks that Respondents were required to perform at the same time that we were working in good faith to complete critical- path RI/FFS deliverables. Most notably, through its December 9, 2015 Unilateral Administrative Order (UAO), EPA required Respondents to construct and place a non-combustible cover over select portions of the landfill and develop an Incident Management Plan in response to a perceived surface fire risk.5 This mandate

came at a critical time with regard to the commencement of the additional RI Addendum and FFS work, and diverted important resources from that work. As EPA acknowledges in its November 10 letter, recognition of these competing requirements was a basis for EPA's past (and future) considerations for extensions of time, and as those demands are ongoing, so should be EPA's willingness to take them into account with regard to the timing of current and future deliverables.

Despite our positions set forth above, Respondents remain willing to work in good faith with EPA to achieve quick resolution to this issue so that it does not further distract from the remaining RI/FFS deliverables. To that end, Respondents can agree to pay stipulated penalties in the amount of $24,000 to resolve this matter, provided EPA agrees that such payment will be made without any admission of wrongdoing or liability on the Respondents' part.

We hope EPA is willing to come to a reasonable and considered resolution of this matter and that Respondents can continue our heretofore productive working relationship with EPA and focus on completing the remaining items under the May 2016 Work Plan to EPA.

5 Respondents note again for the record that the triggering event for this UAO was a fire from a

utility company's transformer- extremely limited in scope and extinguished without harm to

humans or animals, or substantial damage to property - that did not occur on the landfill property

and was not Respondents' fault.

Respectfully submitted,


Is/ John McGahren John McGahren, Esq.Morgan, Lewis & Bockius, LLP Attorneys for Cotter Corporation (N.S.L.)

Is/ Jessica Merriaan Jessica Merrigan, Esq.Lathrop and Gage LLP Attorneys for Bridgeton Landfill, LLC and Rock Road Industries, Inc.

cc: Alyse Stoy, EPA Region 7, Office of Regional Counsel (via email)Bradley Vann, SUPR/MOKA, EPA Region 7 (via email)Tom Mahler, OSC, EPA Region 7 (via email)Lynn Juett, EPA Region 7 (via email)Phil Dupre (via email)Steven Miller (via email)Stephanie R. Feingold (via e-mail)Bill Beck (via email)Nick Johnson (via email)Russ Eggert (via email)Dale Guariglia (via email)Paul Rosasco (via email)


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