united states environmental protection agency … · to: timothy fields, jr., acting assistant...

UNITED STATES ENVIRONMENTAL PROTECTION AGENCYWASHINGTON, D.C. 20460

April 16,

OFFICE OFSOLID WASTE AND EMERGENCY

RESPONSE

MEMORANDUM

SUBJECT: FINAL REPORT - National Ombudsman's Reviewof the Drake Chemical Superfund Site, Lock Haven, PA

FROM: Robert j. tfartin, National Ombudsman

TO: Timothy Fields, Jr., Acting Assistant AdministratorOffice of Solid Waste and Emergency Response

W. Michael McCabe, Regional Administrator, Region III

Attached is the National Ombudsman's Final Reportfor the Drake Chemical super fund site in Lock Haven, PA.

Consistent with the EPA Ombudsman Handbook, theABA Guidelines for Ombudsman, and the United States OmbudsmanAssociation, this public report contains findings andrecommendations. . . .

All of the recommendations made in this Final Reportare for Regional Office deliberations and decisions.

Attachments

cc: Michael ShapiroCliff Rothenstein .James Seif , PADEPClinton County CommissionersLock Haven PA City AdministratorKenneth Kryszczun, Region III OmbudsmanKevin Matthews, OCLAArrest Incinerator Remediation (AIR)

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TABLE br CONTENTS

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PAGE NO,

I. BACKGROUND AND AUTHORITY .......... 1

II. OMBUDSMAX PROCEEDINGS OX THB RECORD .... 3

III. OMBUDSMAN FINDINGS OF FACT ......... 4

IV. OMBUDSMAX ISSUES ADDRESSED ......... 9

V. CONTINUING JURISDICTION .......... 15

VI. SUMMARY Or RBCOMMBDHATIOMS ......... 16

VII. SUMMARY Or OPIHIOX ............. 17

VIII. APPENDICES ................. 20

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The Office of Ombudsman has undertaken several cases withinthe past five years in which significant decisions at Superfundsites have been reviewed and modified. In the Vertac case, theOffice of Ombudsman responded to a petition from citizens affectedby. operation of a Superfund incinerator. Working closely withEPA Region VI officials, an independent expert from EPA Region Xreporting to the Office of Ombudsman and the EPA CriminalInvestigation Division; significant recommendations were made tocomplete a new engineering assessment, to replace kiln seals and toimplement new Standard Operating Procedures for the site. All therecommendations were adopted by EPA Region VI. A subsequent criminalreferral was made by the Office of the Ombudsman and accepted by theEPA Inspector General.

In the Isio. case, the Office of Ombudsman responded to apetition from citizens affected by the prospect of an operatingSuperfund incinerator in their community near Houston, Texas*EPA Administrator Carol M. Browner addressed the 'concerns about theremediation of the Brio Superfund site with Governor, Ann W. Richardsof Texas in a letter dated March 4, 1994. The Administrator notedthat "I have been made aware of the issues associated with the site,have discussed the issues with senior managers within the Agency,and believe we are making significant progress in addressing yourconcerns .... Regarding the Office of Ombudsman report discussedby Governor Richards, the Administrator remarked that "I am infull support of the review of the site that was undertaken bythe Superfund Revitalization Office and the OSWER Ombudsman ofthe Environmental Protection Agency Headquarters . . . . I understandthat EPA Region VI has already undertaken steps to implement someof the recommendations contained in the draft report .... We areplanning to have the final report finished in the near future, andwe will continue to work with EPA Region VI and the State to resolveall issues." . '

The Office of Ombudsman Final Report in the SEifl case madeseveral recommendations in connection with, among other issues, sitecharacterization, fugitive emissions and the air monitoring system.EPA agreed to implement all of the Ombudsman recommendations madein the Final Report. After issuance of the Final Report, 'the Officeof Ombudsman helped facilitate a dialogue between the petitioningcitizens, EPA Region VI officials and the responsible parties forthe Brio sit». A Focused Feasibility Study was undertaken. Theincineration remedy has not been pursued at the Brio site. Rather,a contaminant: remedy with a gas collection system is beingimplemented.

In the Times Beach case, the Office of the Ombudsman respondedto citizens petitioning about the effects of the incineration remedyselected by EPA at the Times Beach Superfund site in Missouri. Onceagain, the Office of Ombudsman, within the context of Interim and

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Final Reports, addressed such issues as risk assessment, fugitiveemissions and the air monitoring system. Ultimately, the Officeof Ombudsman had no discretion to recommend continued operationof the incineration remedy at Times Beach without another DioxinStack Test. Violations of EPA chain of custody legal requirementsnecessitated, in the view of the Office of the Ombudsman, a completere-test of the Dioxin stack Test for the incineration unit, otherrecommendations were made to improve the air monitoring system. Toaddress public confidence in the incineration remedy and for otherreasons, EPA agreed to implement all of the recommendations made.in the Final Report. The EPA Environmental Response Team was. taskedto work with the petitioning citizens and the parties in a technicalmediation role. Subsequent to release of the Office of OmbudsmanTimes Beach Report, the U.S. Attorney for the Eastern District ofMissouri empaneled a criminal grand jury to address, among otherissues, the issues raised in the report.

II. OMBUDSMAN PROCEEDINGS ON THE RECORD

The Office of Ombudsman held several meetings and a publichearing on the record in Lock Haven, Pennsylvania, to receivesignificant information directly from all interested parties.The first meeting on the record was held with Mr. Kurt Davisand his legal counsel. See, Appendix E. Mr. Davis is a formerShift Supervisor for the Army Corps of Engineers at the Drake site.The second meeting on the record was held with the Lock Haven CityEnvironmental Advisory Council. See, Appendix F. The AdvisoryCommittee was established by the Lock Haven City Council to act asliaison between the city government and the Drake remediation team.

The third meeting on the record was held on the Drake sitewith team officials, including EPA Region III, the PennsylvaniaDepartment of Environmental Resources and the Army Corps ofEngineers. See Appendix G. Following a detailed site tour by theNational Ombudsman, the Drake remediation team commented on issuesraised by Mr. Davis in connection with site operations. The fourthmeeting on the record was with the National Ombudsman and the ClintonCounty Farm Bureau. See, Appendix H. The Farm Bureau was concernedabout the liability associated with incineration at the Drake siteand offered several comments with respect to testing for dioxin usingmoss bags.

The final meeting on the record was between the NationalOmbudsman and the Clinton County Board of Commissioners. See,.Appendix I. Subsequent to these meetings on the record, the Officeof Ombudsman held a final Public Hearing on the Record to afford anopportunity to any person to comment on the Ombudsman process and theDrake site.1 See, Appendix J. The Office of Ombudsman also receivedseveral written comments from interested parties following issuanceof the Draft Final Report last year. Those comments are includedwithin this Final Report for public review. See, Appendix K.

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III. OMBUDSMAN FINDINGS OF FACT

A. The Army Corps of Engineers found on September 21, 19 91"two extremes" .... one is the ROD in which contains informationabout the contamination initially found on the site .... The otherextreme is the incineration treatability study which indicates thatthere is virtually no contamination. Of 483 analysis for organiccontamination, 481 were non-detect." See, Army Corps of EngineersReview Comments for the Drake Chemical Site. See, Appendix L.

,J&. The responsible parties for the Drake site in 1993 .petitioned EPA Region III to address this disparity:

"Should EPA proceed with incineration as the remedy forthe Drake site, three results seem certain ... First, a great dealof the public's money will be wasted. There are much less expensive,equally satisfactory solutions available for dealing with the lowlevels of contamination found at the Drake site. Second, EPA willjustifiably be subjected to charges that its decision was arbitraryand capricious. In the U.S. Army Corps of Engineers BidSpecifications for construction and operation of an incinerator atthe Drake site, the Government has acknowledged that the samplingand analytical results from the Incineration Treatability Study arerepresentative of site conditions and the results from the RemedialInvestigation are not .... Bidders have been instructed to relyon the Treatability Study, results in designing the incinerationsystems they include in their proposals. Yet, based on the levelsof contamination revealed in the Incineration Treatability Study,no rational, newly conducted Feasibility Study or Record of Decisionwould conclude that incineration is an appropriate remedy." See,April 7, 1993 Petition to Thomas C. Voltaggio from Morgan, Lewis,and Bockius. See, Appendix M.

C. The bid materials provided to bidders in the request forproposals concerning the incineration remedy included the data fromthe Treatability Study. This information was given to the biddersto provide them with information concerning the conditions to befaced at the site when mixing large quantities of soils, sludge, andsediments to be fed into the incinerator. The Request for Proposalprovided that "it is believed that the contamination levels found inthe Treatability Study are more representative of what, the TDF willexperience during the remediation and the contractor shall base hissystem design on the information from the Treatabilitv Study."[Emphasis supplied]. See, Affidavit of Roy Schrock and Memorandumto the Dpake?Tile from Roy Schrock. See, Appendix N.

D. Phenols were disposed of at the Drake site by the KilsdonkChemical Company (Drake's predecessor) and phenols were disposed ofby the AC&C Company at the AC&C site. Hazardous substances havemigrated through the groundwater from the AC&C site to the Drakesite. See, Complaint of United States of America vs American Color

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and Chfemical Corporation et.al., September 28, 1992, Appendix o".Phenols may trigger the RCRA listing test for dioxin at the Drakesite, if so triggered, a higher destruction removal efficiency[99.9999%] may be required for the Drake incineration unit.•

E. & Consent Decree was entered into on February 14, 1996,between the responsible parties AC&C Chemical inc., and One EastBeazer Inc. and the U.S. Environmental Protection Agency and thePennsylvania Department of Environmental Resources. The ConsentDecree provided that the responsible parties would perform thegroundwater remediation for the Drake site and that EPA and PADERwould perform the Source Control, or incineration portion of theremedy for the Drake site. The responsible parties initiallypaid approximately $4 million for the groundwater treatment remedy.Pfister Corporation has made no financial contribution. The costof incineration as the source control remedy is approaching $140million. Approximately $126 million will be paid by EPA and $14million by PADER.

F. Based on site specific knowledge and a review of the ROD,incineration contract solicitation and incineration test, the ownerof the CDS Laboratory in Loganton, Pennsylvania, on January 26, 1995,found that many of the compounds used by and produced at Drake arenot detectable using standard EPA protocols with GC/MS analysisfor organics. Products that would not be detected include BronnersAcid, Chrome Black T, Isophthalic Acids and their derivatives, 1,2,4 Acid and Acid Chlorides. A _gjj|dinjf waa_al3O made _thafcjtha 9Ais not homogenous tfi ires^ ~

G. B-Naphthylamine (BNA) is a primary contaminant at theDrake site and poses a significant risk. It is not reported to occurnaturally in the environment. BNA was used in rubber manufacturingand as a chemical intermediate for dyea and rubber antioxidants.Its chemical and physical properties include colorless crystalswhich darken in air to a reddish and purple color. It has a faintaromatic odor with an odor threshold of approximately 0.25 ppm.BNA is a known human bladder carcinogen and has been regulatedby the Occupational Safety and Health Administration. There isno permissible exposure level or air concentration for BNA sincefor most known human carcinogens it is assumed that any increasein exposure will increase cancer risk.

H^ ifotwithstanding the fact that BNA is primary contaminant atche Drake Chemical site and that BNA poses a significant risk, theredoes not appear to be any requirement in the PADEP Air EquivalencyPermit to test for BNA in stack emissions or perimeter air samplingsThe only hazardous materials required to be tested for in the peri-meter air monitoring network were (1) toluene (9.146 ppm - actionlevel), (2) chlorobenzene (7.777 ppm - action level), and (3)tetrachloroethene (2.511 ppm - action level). See, Appendix P.

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I. A recent publication by the North American Associationof Central Cancer Registries included cancer death rates for theCommonwealth of Pennsylvania for the years 1989*1993. The age*adjusted cancer death rates in Pennsylvania males and females were226.8 and 148.8 per 100,000 respectively during this recent timeperiod. The corresponding US rates were 219.1 and 141.7 per 100,000;this indicates that Pennsylvania men and women are dying of cancerat rates 4-5% higher than in the U.S. as a whole. Similarly, bladdercancer death rates in Pennsylvania males and females were 6.3 and 1.3per 100,000, respectively during this time period. U.S. rates were5.7 and 1.7 per 100,000, indicating that Pennsylvania men anql womenare dying of this specific cancer at a higher rate than in the U.S.as a whole; the rate for Pennsylvania males is 11% higher than theU.S. bladder cancer death rate.

J* The Drake incinerator trial burns were intended to demon-strate incinerator performance and establish permitted operatingconditions. The Drake incinerator risk burns were carried out toprovide data that could be used to predict the impacts on publichealth and the environment of the incinerator, assuming that itoperates according to the conditions established during the trialburns. During the risk burns, the incinerator achieved averagedestruction efficiencies with the two contaminants identifiedas being of greatest concern as follows: Fenac, 65.4 to 83.7%and BNA 94.3%.

K- The Agency for Toxic Substances and Disease Registry hasperformed a series of health consultations in connection with theuse of incineration at the Drake site. ATSDR found that •'M[l]aboratory control samples are producing low recoveries forB-Naphthylamine (4-aminobiphenyl) and Fenac (dichlorophenylaceticacid) .... concentrations may be biased low. Thorough evaluationof laboratory control data, as indicated in monthly sampling reports,is inhibited by the reporting of recoveries as averages rather thanreporting a recovery value for each sample."

L. ATSDR in its Draft Final Health consultation hasrecommended that improved detection and data recovery for BNA beachieved at the Drake site. ATSDR has noted that with the exceptionof BNA and Fenac, the analytical data for contaminants at the Drakesite is of general high quality. ATSDR observed that air samplingat the Drake- site for BNA; however, is likely not acceptable forthe evaluation of public health impacts. ATSDR recommended theapplication of new models to the Drake air monitoring system.

M. Mr. Davis in testimony on the record stated that the Drakeair monitoring system never detected BNA during his tenure and thatthe air monitoring contractor (MRI) knew before bidding the Drakecontract that EPA TO-13 method for detecting BNA could not beachieved. Notwithstanding the failure of the air monitoring system

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to detect BNA in this time frame, Mr. Davis reported a very pungentdirt odor and a sickening sweet aromatic after his respirator unitexperienced break-through. He reported that this could be smelledon site during a normal days walk around and normal operations.The Corps of Engineers has reported other respirator breakthroughs;however, not Mr. Davis's incident. Mr. Crystall of EPA has reporteda hit for BNA on a detection patch under a Drake site workers glove.Citizens have reported similar odors off-site in the community.

N. Mr. Davis continually informed Drake site management ofhis observations of fugitive emissions from the incineration .processin the form of wet dust. Citizens observed fugitive emissions fromthe site which corroborated Mr. Davis' findings and expanded intonew findings.

O. A wet dust collection system for the Drake incinerationunit was included within the engineering drawings but was not-required by the Corps of Engineers nor was the system implemented 'by OHM Inc. The wet dust collection system would have helpedaddress the problem of fugitive emissions.

P. The problem of fugitive emissions from wet dust andparticulate matter in steam from the incineration unit was addressedin a Steam Mitigation Meeting on November 26, 1996. EPA made clearto OHM, among other goals, that steam should be eliminated. Althoughseveral options were considered to address fugitive emissions assteam, no option appeared to have been selected because of inter-ference with the Risk Burn schedule and because "[m]edificationsto the TDF would require too much time and would be expensive."

Q. Mr. Davis reported on December 19, 1996, that the $100Drake site safety slogan was "Steam is clean". Mr. Davis continuedto await the course of action selected by the Steam Mitigation Team*MRI Inc. expressed to Mr. Davis that they could not sample the steamfor contamination using Draker tubes. OHM Inc., suggested usinga firm other than MRI Inc., to address the steam problem.

R. On March 4 and March 5, 1998, shortly after commencing afull production burn at the Drake incineration unit; the PennsylvaniaDepartment of Environmental Protection issued two Notices ofviolation (NOV's) to OHM for fugitive emissions violations for thetwo days referenced previously. See, Appendix Q. The Army Corps ofEngineers Daily Site Reports for March 4 and March 5, 1998, confirmproblems with fugitive emissions on'those days and note that thefugitive emissions left the site boundary. The Daily Perimeter Air-Monitoring Reports; however, identify no problems from real-time airmonitoring at the project fenceline or at the four off-site stations.

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s« JfflfcPrecautionary Principle finds that threats of harmd©ma»4rgrecauti"bnary action, even wnen proof positive is not yetavailable. This is consistent with a recent National Academy ofSciences report on risk assessment and characterization. TheNRC called on risk assessment processes to incorporate publicparticipation as a component equally as significant as technicaldata-in the overall risk assessment process.

!F EPA invalidated approximately six months of Lock Havenweather data out of 12 months of available data. The ATSDR hasrecommended that EPA have approximately five years of weather dataavailable for the Drake incineration project and that additionalweather models be used to apply to the Drake project.

U. One of the independent EPA peer reviewers has made findingsavailable to the Office of the Ombudsman that the Drake risk assess-ment presented no data describing the present air quality in the LockHaven basin, nor any estimates whether the emission increments fromthe Drake incinerator would affect exceedances. Similarly, no datawas made available on the present health quality of the basin, norwhether increments of health stress from the Drake incinerator wouldaxceed reasonable standards of community health.

V. The independent EPA peer reviewer also found that the Drakerisk assessment omitted what are probably the biggest health relatedemission sources [secondary formation of PM2.5 from the stack andorganic vapors from the disturbed soil] and the most apparent healtheffect [asthma and congestive pulmonary disease]. A finding wasalso made that the uncertainties in the central cancer-risk estimatorr3E-o7] likely exceed 10X, and plausibly approach or exceed 100X.

W. The independent EPA peer reviewer also found that theDrake risk assessment ignored an explicit directive to evaluateuncertainties. Henry Habicht, Deputy Administrator of EPA cited inAppendix B of "Science and Judgement in Risk Assessment", NationalAcademy of Sciences, 1994. IBSN 0-309-04984-X.

X. The independent EPA peer reviewer found that the uncertain-ties noted above were so large as to vitiate the reasonable use ofdeposition pathway, cancer driven risk assessments in a GO or NO GOdecision by EPA management. Therefore, the independent EPA peerreviewer judged that the Drake risk assessment cannot assist wisedecisions regarding production burns at- the Drake site toxic wasteincinerator.

Y* The independent EPA peer reviewer made clear that inpre-meeting comments, during the Peer ReView workshop, and inpost meeting correspondence all of the above points were stressed[omission of volatile organics from the disturbed soils, childhoodasthma and adult congestive pulmonary disease and that all risk

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•: *.: ' * .•*assessments should be conducted "at the margin" rather than from"base zero" with respect to both air quality and health] and that"[i]n these reservations I was not alone among the reviewers andI recall no dissent from them."*

Z. The independent EPA peer reviewer, noting the groundsrecited above, dissented from the summary of the Chairman in theDraft Final Report; that the risk assessment study was "commendableand credible" and was "well conceived and executed." The independentEPA peer reviewer commented that this was not an executive summary inthe sense of a consensus among peers and that "had I been askedwhether it should be accepted as meeting minimum standards of qualityand completeness, I should have recommended "No". The Chairman ofthe Peer Review did find, however, that "[t]he reviewers concurred.... that there are a number of areas of concern that are worthaddressing in order to better quantify the potential risks that maybe imposed by the operation of the incinerator at the Drake ChemicalSuperfund site.

IV. OMBUDSMAN ISSUES ADDRESSED

A. SITE CHARACTERIZATION

The issue of how the Drake site was characterized and howcontaminants of concern were identified was previously addressed inthe Interim Report and the Draft Final Report. A threshold issueare comments of an engineering review performed by the Army Corps ofEngineers in 1991* See, Finding of Fact A. The Corps also observedthat "it appears that a smart contractor could remediate this sitewithout turning on his incinerator. Before the government spends$123,000,000 it would be prudent to reevaluate this situation.It would be worth the minimal costs for testing to determine ifa better or more limited method of remediation would work for thissite. This could save a $123,000,000 embarrassment to the govern-ment." See, Engineering Review Comments at pg. 2.

The Administrative Record provided to the Office ofOmbudsman does not show that further testing was ever done toaddress the disparities between the RIFS data and the TreatabilityStudy data (which the RFP required the contractor to rely upon indesigning the incincerator system at Drake). The original EPA sitemanager has confirmed that no such testing was ever done.

The Office of Ombudsman asked EPA Region III to certifyto the Drake Administrative Record prior to completing this FinalReport. The Region declined. The Office of General Counsel clari-fied the grounds for the refusal in a March 3, 1998, Memorandumto the Office of Ombudsman. OGC commented that "EPA normallycertifies a record only for the use of courts and litigants ....

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In order to certify an administrative record, the Region wouldhave to determine precisely what action is being challenged inlitigation, and identify and certify the corresponding materialsfrom the administrative record file. I did not mean to suggest,and I do not believe, that such a certification would be neededin order for you to review activities at the Drake site."

The Ombudsman process is not a judicial proceeding andthe parties are not litigants. Without a certified record, however,the Office of Ombudsman cannot ascertain whether particular issueshave gone to closure through documents that are part of an officialrecord.

The Army Corps of Engineers noted in their engineeringcomments "What is a contractor supposed to believe when he is pre-paring his proposal?" See, Army Corps of Engineers Review Commentsat pg. 5. In addition to the fundamental data inconsistencies notedabove, the petitioners have also questioned whether all contaminantsof concern have been identified at the Drake site. See, the Interimand Draft Final Reports for a fuller discussion. For example, theformer plant manager of the Drake plant in sworn testimony identifiedsilvex as a chemical compound that was an unwanted waste product atthe Drake site. See, Draft Final Report, Appendix O. Silvex in anunused formulation, in and of itself, may trigger a RCRA dioxinlisting. Phenols are also present at the Drake Chemical site.

A RCRA listing for silvex at the Drake site wouldrequire a higher Destruction Removal Efficiency (ORE) for theDrake incinerator (99.9999%). See, Draft Final Report. See also,Vavra Memorandum for explanation of dioxin and RCRA listing tests.Regarding potential dioxin contamination at the Drake site, areview of the "Drake Chemical Site Dioxin Analysis File Search andSummary Report" (hereinafter the "Weston Report") shows referencesto no reports for dioxin reanalysis in the site files that shouldhave been analyzed again because the detection limits were greaterthan Ippb; another set of dioxin samples was questionable becausethe'surrogate spikes did not meet criteria; and another set of dioxinsoil samples "did not indicate a station location on the accompanyingchain of custody; therefore, the sample locations cannot be tracedto any existing site location." Finally, the Weston report notesthat a "Quality Control memorandum did not accompany the data."

It must: also be noted that a former longstandingemployee of both the Kilsdonk and Drake Chemical firms gave aprivileged communication to the National Ombudsman in which itwas alleged that "Agent Orange" and related compounds were madeby Kilsdonk for the government. It does not appear on the faceof the Vavra Memorandum that this period of time is covered in therecords analysis. The issue of dioxin contamination at the DrakeChemical site is not new. See, Interim and Draft Final Reports.

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EPA Region III declined to test the waste feed to the incineratorfor dioxin as recommended in the Interim Report and to issue a FactSheet regarding unused formulations of compounds that would triggera RCRA dioxin listing as recommended in the Draft Final Report.*

RECOMMENDATION

The EPA Environmental Response Team, consistent with theNational Contingency Plan and its role as a technical mediator,should address the fundamental inconsistencies in site character-ization data alleged by the Drake responsible parties and observedby the Army Corps of Engineers. The ERT should also, in view ofprevious quality control problems for dioxin sampling and issueswhich have not been resolved concerning unused formulations ofSilvex, conduct another round of sampling for dioxin, PCP and silvexin the waste stockpiles to be incinerated. An EPA Fact Sheet shouldthen be prepared which explains how the Drake site was characterizedand explains the results of the sampling and analysis.

B. BNA DETECTION AND AIR MONITORING

Petitioners have long been concerned about the failure toachieve the original detection limit for BNA at the Drake site andcorresponding non-detects for BNA in the perimeter air monitoringsystem at the Drake site. See, Interim Report at pg. 9. The Drakeremediation team, in a safety meeting held on January 28, 1997,noted that different sampling methods for BNA had been used andthat "BNA" has never been detected with any of our monitors."See, Shift Report January 29, 1997. The Office of Ombudsmannoted the efforts of the Drake remediation team to achieve aNIOSH detection limit for BNA that was lower than the Pennsylvaniadetection limit for BNA, but observed that many non-detects for BNAresulted during the trial burn period because of the detection limitproblem. See, Interim Report.

The ATSDR also noted the problems with detection limitsand recoveries for BNA contaminants. See, Findings of Fact I and •K. The air sampling for BNA, therefore, is likely not acceptablefor the evaluation of public health impacts. This is absolutelycritical in view of the potent carcinogenity of BNA and itswidespread presence as a site contaminant. There may be directevidence that BNA contamination is present in the air, notwith-standing the failure to show any positive detections in the airmonitoring system.

After Mr. Davis reported the breakthrough of his respira-tion unit, he testified that the presence of aromatic pungent smellsfrom the soils and the ash was "second nature out there. This iswhy I was raging." See, Appendix E at pg. 35. The Army Corps of

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Engineers reported to the Office of Ombudsman that breakthroughsof other worker respiration units had occurred on the .site.OHM has reviewed these-incidents and procedures and found "nodeficiencies". See, Daily Report of March 11,. 1998. When Mr.Davis was informed that there were no detections for BNA in theair monitoring system, he commented "I was raging. I was raging."See, Appendix E at pg. 44. Citizens have also reported, in swornaffidavits, that they have smelled pungent aromatic odors fromthe Drake site much like Mr. Davis encountered.

Other citizens testified to such odors within the contextof the Ombudsman public hearing. See, Appendix J. The Drake Teamhas offered an explanation that the odor is from a skunk living ina woodpile in the exclusion zone on the site. See, Daily ReportMarch 13, 1998. Mr. Crystall of EPA stated for the record thatthere was a hit for BNA on a detection patch under a site worker'sprotective glove. See, Appendix G at pg. 33. Based upon the directevidence of Mr. Davis's experience, the fact of other respiratorbreakthroughs, citizen observations of pungent aromatic odorsfrom the Drake site and the BNA hit on the worker detection patch,therefore, there may be BNA contamination in the air on and aroundthe Drake site (or some other chemical is off-gasing from site soils)and the air monitoring system may not be detecting the problem.

While ATSDR feels that "exposure to 0.02 ug/m3 BNA for16 months would not represent a carcinogenic hazard to residentsliving within a mile of the Drake site ... a detection limit of0.001 ug/m3 for BNA would offer a larger margin of safety,."[1 part per billion] MRI Inc., the air monitoring contractor atthe Drake site, appears to have achieved this level of detectionat the State of Texas Superfund site in Houston, Texas for contam-inants euch as BNA at a network of fenceline monitors for real-timemonitoring of volatile organics and PM-IO. The system was able todetect part-per-billion concentrations of eight targeted VOC's ona real-time basis at the site." See, MRI HAP Monitoring at SuperfundSites, Appendix R.

RECOMMENDATION

Consistent with the original recommendation in the InterimReport and the recommendation of the ATSDR, the EPA EnvironmentalResponse Team should work with the Drake Site Remediation Team toexplore options to improve the detection of BNA, in particular,and the operation of the perimeter air monitoring system, in general.An EPA Fact Sheet should be issued which explains the improvementsto BNA detection and to the perimeter, air monitoring system followingthe addition of sampling protocols and action levels to ensure thatother volatile organic chemicals are not exceeding levels of publichealth concern.

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C. FUGITIVE EMISSIONS

Mr. Davis consistently reported fugitive emissions andobserved that "my common sense judgement was there's a good chancethat there's contamination coming off in this steam and being givena medium to be carried away with the dust." See, Appendix E atpg. 32. Mr. Davis also indicated that "I was called on that bymy supervisors .... And I was told that its not to be - its nota fugitive emission." See, Appendix E at pg. 31. Notwithstanding -these instructions, the Drake team noted on November 6, 1996, that"there is still some fugitive emissions occurring at the joint sealbetween the kiln breach outlet and the cyclone inlet" (see DailyReport) and on November 11, 1996, that the "EPA representativeon-site today has drafted a comment .... it has to do with whetherthe steam coming off of the dry ash dropping onto the wet ash dragconveyor are producing fugitive emissions." See, Daily Report.Mr. Davis asked why the wet dust collection system which appearedon the engineering and contract drawings was not in place. Thissystem would have addressed residual organics destruction and assuredfurther treatment in the air pollution train. Mr. Davis contendshe was never told why the system was not implemented. See, AppendixE at pg. 61.

Mr. Davis contends he was informed that other "steammitigation" solutions were not implemented prior to the trialand risk burns at the Drake site. He speculated that the wet dustcollection system was not implemented because "potential contaminantswould be reintroduced through the pollution train and then go up thestack. These would not have been modeled for in the risk assessment.... If this safety improvement were done now, emissions would bedifferent than allowed for in the Trial Burn and the PermitEquivalency." See, Appendix E at pg. 81. Responding to a questionabout the importance of the wet dust collection system forcontainment of fugitive emissions, Mr. Davis remarked that "In myassessment, the consequences would be potential hazardous exposures,from fugitive emissions and the inability to implement them back intothe system because it compromises the integrity of the Trial Burn,which is really important, isn't it?" See, Appendix E at pg. 83.

The National Ombudsman addressed this issue .directly withthe Drake site remediation team. The following colloquy ensued:"Mr. Modricker: There were indications .... clouds on the drawingsto show the ability to put a wet dust collection system. We neverrequired it. OHM never told us they planned on using it ....Mr. Crvstall; The site team didn't feel we needed it. And oneof the things we're looking at now is if it becomes a persistentproblem that we see, we're going to put it in. Mr Martin; So it'sstill possible to engineer that? Mr. Crvstall; Yes. Mr. Oaden;But as Greg said, we haven't felt the need to do it. Our statepermit says if we have fugitive emissions at that location, that

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we're supposed to take action. It doesn't sav that we're supposedto take action to eliminate." See, Appendix G at pg. 43. [Note;The State Equivalency permit requires "If fugitive emissions arevisible .... additional.control measures must be implemented toeliminate fugitive emissions [Emphasis supplied]. See, Appendix P.

The discussion continued: "Mr. Martin; However, ifdust were visible within the steaa plume, would that be considereda fugitive emission? Mr. Qqdens Yes and we would take steps then,to control that dust, knock it down with more spray or whatever.The Cadillac version, which is the thing that's kind of been-laidout, designed, but not built, is this steam scrubber which wouldbasically scrub the steam of any particulate that might be in it,collect it and handle that as a separate entity. Mr. Martin; Doesthe Air Equivalency Permit incorporate by reference, then, the statedefinition of fugitive emissions? Mr. Welch; Yes. And we've beenhere - we've had some of the same staff here for going on 10 years,and we have not noted a single'fugitive emission going on to date.We've asked them to make modification to the system that they'vedone. These other engineering abilities are out there .... and theState's position is to have them available. But, I mean, even thoughwe're only putting 10% towards it at this point, why spend 10% tostraighten up a perception problem? If there's a violation, that'ssomething different." See, Appendix G at pg. 46.

On the following two days, FADE? issued two Notices ofViolation for fugitive emissions to OHM. See, Finding of Fact P.See also, Appendix P. Citizens have also observed fugitive emissions'on multiple occasions from the Drake site and have smelled noxiousodors in different locations in the community. See, Appendix J.The Office of Ombudsman has previously addressed the issue offugitive emissions from the Drake site. See, Interim and DraftFinal Reports. The issue of off-gasing of chemicals from sitesoils and ash piles also concerned the independent EPA peer reviewer.

RECOMMENDATION

Consistent with the position of the PADEP, the Army Corpsof Engineers should put in place the wet dust collection systemenvisioned in the original engineering plans for the Drakeincinerator to address the fugitive emissions problem which isaffecting the community. The EPA Environmental Response Teamshould also work with the Drake Site Remediation Team to achieveprocess improvements to assure that fugitive emissions do notcontinue from the Drake site.

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D. RISK ASSESSMENT ' ""' %

The Office of Ombudsman has previously addressed riskassessment issues in the Interim and Draft Final Reports. The ActingAssistant Administrator of OSWER decided last year "on a paralleltrack with your Ombudsman efforts at this site" to ask "Region IIIto work with me to facilitate a peer review of the project plan forthe final risk assessment over the next 60-90 days." See, Draft FinalReport. Appendix E. A Draft Final Report has been circulatedamong the Independent Peer Reviewers. Many substantive concernshave arisen in connection with the peer review process and withthe risk assessment for the Drake site.

The issue of weather data has a significant bearing onthe risk assessment as well. See, Interim and Draft Final Reports.See also, Finding of Fact R. An air modeling expert with thePennsylvania State University commented that "to apply data froma separated location (Williamsport Airport) in a region which isworld renown for its complex topography and associated micrometeor-logical conditions, is, in my opinion, tantamount to walking onthin ice. Apparently, the planned measurements were invalidatedbecause of instrument failure and improper tower placement. If thosesite specific measurements were "required" then inconvenient as itmay be, decisions regarding issues such as siting, burn strategies,etc., which were understood to be dependent upon satisfactoryexecution of those measurements, should be deferred until a satis-factory set of measurements is completed. If a baker discoversmidbatch that he/she is short of yeast, baking soda is not anadequate substitute." See, Citizens Petition at pg* 9.

RECOMMENDATION

EPA should require all of the Peer Reviewers of the Drake SiteRisk Assessment to address the deficiencies noted in Findings of FactS, .T, U, V, and W, (Relating to no data on the present air and healthquality in the Lock Haven basin, emission of organic vapors fromdisturbed soils, failure to address the Habicht directive, etc.)The EPA Environmental Response Team should atlso assist the DrakeSite Remediation Team in gathering 5 years of weather data and inexploring other models for applying such data, consistent with therecommendation of the ATSDR.

V. CONTINUING JURISDICTION

The Office of Ombudsman consistent with its procedures forinvestigations asserts continuing jurisdiction over the Drake case.This Final Report focused only upon a narrow range of issues whichwere critical to a dispositive review of the Drake site. Manyother issues were not addressed in the context of this Final Report

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(evacuation plans and alternative technologies etc.) but will beaddressed subsequent to this report. New issues will also beexamined, such as the effect of other RCRA sources on the Drakesite cleanup and their compounded effect, on the community (AC&C site,etc.) Pursuant to the request of the Lock Haven City EnvironmentalAdvisory Committee, ample time will be provided to the public toreview and comment upon any issue which has not been addressed inthis Final Report or any new issue that will be addressed by theOffice of the Ombudsman.

Because of the existance of criminal allegations based oncredible sources, an Office of the Ombudsman referral will be madeto the EPA Office of the Inspector General and the EPA CriminalInvestigation Division upon submission of this Final Report.Consistent with prior Ombudsman cases, the Office of Ombudsman willconsult with those Offices regarding the disposition of the mattersreferred as part of its continuing jurisdiction in this case.

VI. SUMMARY OF RECOMMENDATIONS

The EPA Environmental Response Team, consistent with theNational Contingency Plan and its role as a technical mediator,should address the fundamental inconsistencies in site character-ization data alleged by the Drake responsible parties and observedby the Army Corps of Engineers. The ERT should also, in view ofprevious quality control problems for dioxin sampling and issueswhich have not been resolved concerning unused formulations ofSilvex, conduct another round of sampling for dioxin, PCF and silvexin the waste stockpiles to be incinerated. An EPA Fact Sheet shouldthen be prepared which explains how the Drake site was characterizedand explains the results of the sampling and analysis.

Consistent with the original recommendation in the InterimReport and the recommendation of the ATSDR, the EPA EnvironmentalResponse Team should work with the Drake Site Remediation Team toexplore options to improve the detection of BNA, in particular,and the operation of the perimeter air monitoring system, in general-An EPA Fact Sheet should be issued which explains the improvementsto BNA detection and to the perimeter air monitoring system followingthe addition of sampling protocols and action levels to ensure thatother volatile oraanic chemicals are not exceeding levels of publichealth concern.'

Consistent with the position of the PADEP, the Army Corpsof Engineers should put in place the wet dust collection systemenvisioned in the original engineering plans for the Drakeincinerator to address the fugitive emissions problem which isaffecting the community. The EPA Environmental Response Teamshould also work with the Drake Site Remediation Team to achieveprocess improvements to assure that fugitive emissions do notcontinue from the Drake s-ite.

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EPA should require all of the Peer Reviewers of the Drake siteRisk Assessment to address the deficiencies noted in Findings of FactS, T, U, V, and W. (Relating to no data on the present air and healthquality in the Lock Haven basin, emission of organic vapors fromdisturbed soils, failure to address the Habicht directive, etc.)The EPA Environmental Response Team should algo aa jsfr t-ft* DrakeSite Remediation Team in gathering l5~"yia£5-of weather data" and inexploring other models for applying such data, consistent with therecommendation of the ATSDR.

"VII. SUMMARY OF OPINION

The Drake case is properly before the Office of Ombudsmanfor review of site-specific technical issues, consistent with priorOmbudsman cases, such as Vertac. Brio, and Times Beach. In thosecases, as here, the Office of Ombudsman made recommendations toinfluence the critical path in the site cleanup decision-makingprocess, at the urging of citizen petitioners. The issues weighedin this Final Report go to the heart of the implementation of theremedy at the Drake Chemical site.

This Final Report neither affirms nor rejects the incinerationremedy at Drake. Evidence which has come to light in the course ofthis review, however, begs the wisdom of going forward withoutappropriate precaution.

A threshold issue is the significant inconsistencies,in how theDrake Chemical site was characterized for cleanup. The data from theremedial investigation showed widespread contamination (BNA, Fenac,etc.). The data from the Treatability Study for incineration showedvirtually no contamination. The early recommendation of the ArmyCorps of Engineers to do more testing of the Drake Chemical siteto address this inconsistency was never implemented. Parties whobid to incinerate Drake Chemical site soils were instructed to relyupon the Treatability Study data in designing their incinerationsystem. The practical outcome is an incineration system which maynot be capable of addressing the contamination at the Drake Chemicalsite.

Moreover, particular contaminants that could trigger the RCRAdioxin listing test for requiring a destruction removal efficiencyof 99.9999% (as opposed to the current 99.99%) are likely presentat the Drake Chemical site. Phenols are a Drake Chemical sitecontaminant (see, U.S. v. AC&C etc.) which offers a reasonableexplanation as to why several high detections of PCP were foundin site soils during the remedial investigation. Other contaminantsthat would require a higher destruction removal efficiency may havemigrated from the AC&C site. According to sworn testimony from theformer plant manager, silvex in an unused formulation may be present

AR3I9577

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at the Drake Chemical site. A privileged communication from a seniorformer worker at the Kilsdonk and Drake companies alleges that AgentOrange 'was produced at the site by Kilsdonk.

' No records exist for the period of Kilsdonk operation at thesite. This period of plant operations does not appear to beaddressed by the Vavra memorandum, which concludes there are no RCRAlisted dioxins at the Drake Chemical site. The witness who made theprivileged communication alleged that Kilsdonk was paid in cash toproduce the Agent Orange.

The diagnosis of the site for contamination is a fundamentalissue. The original remedial investigation showed widespread highlevels of contamination. The incineration remedy was selected basedupon this analysis. The contract to implement the thermaldestruction remedy, however, was based upon the almost non-existentlevels of contamination found in the incineration Treatability study.

This disparity is significant and may offer logical explanationsfor operational problems which have been encountered at the site.For example, sampling of the feed to the incinerator demonstrateslevels of BNA contamination as high as 8900 and 2040 parts perbillion with corresponding removal efficiencies (after being burnedin the incinerator) of 3300 and 1730 parts per billion, or, 62.92%and 15.20%, respectively. See, Sampling Results. Appendix E.The Drake incinerator may not have been designed and may not nowbe able to consistently and efficiently destroy high levels of BNAcontamination and other kinds of contamination in site soils withinEPA regulatory parameters.

PRINCIPAL RECOMMENDATION

Based upon the foregoing evidence, the principal recommendationof this Final Report is that the incineration, remedy should not goforward until the testing recommended by the Army Corps of Engineers7 years ago, but never done, has been accomplished. This issue wasraised by the financially solvent responsible parties prior to "construction of the incinerator. Subsequently, EPA chose not toseek contribution from those parties for the $140 million inciner-ation remedy. See also, Interim Report and -tills Final

Following such testing, the EPA" Environmental Response Teamshall recommend appropriate changes and engineering modificationsto address the issues noted in this Final Report and other problemswhich may arise after resampling.

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• *f the results of such testing confirm the safety and efficiencyof the.incineration remedy at Drake, then several other issues mustbe addressed prior to implementation of the remedy. First, methodsof detection and recoveries for BNA contamination in the air monitor-irfg network must be improved, consistent with the recommendations ofthe ATSDR. Second, the wet dust collection system engineered in thedesign of the Drake incinerator but never constructed for reasonsof time and expense, should be put in place to address the well-documented fugitive emissions problems from the incineration process.The EPA Environmental Response Team should address any collateralissue regarding the potential need to change the Trial and Risk Burnparameters for the incinerator due to the installation of the wetdust collection system.

Third, all of the Peer Reviewers should be tasked to address therisk assessment issues identified in this Final Report (present airquality and health quality of the Lock Haven basin, level of asthmaand congestive pulmonary disease. Secondly, formation of pm 2.5from the stack, off-gasing of chemicals from site stockpiles, etc.)All of the Peer Reviewers should also take into account those areasof concern identified by the Chairman "in order to better quantifythe potential risks that may be imposed by operation of theincinerator at the Drake Chemical Superfund site."

CONCLUSION

EFA and its partners have done much to lessen the threats tohuman health and the environment from the Drake Chemical 'site inthe last 16 years. See, Draft Final Report. The Office of Ombudsmanrecognizes the hard work of the Drake Chemical site remediation teamcharged with overseeing a difficult cleanup and the difficult taskof citizens in raising the issues which have been dealt with in theOmbudsman review process. In the final analysis, however, thisOffice and the U.S. Environmental Protection Agency have an obliga-tion to ensure a cleanup of the Drake Chemical site which is fullyprotective of human health and the environment.

The judgement of the Office of Ombudsman is that this statutorymandate is best achieved by implementing the recommendations of thisFinal Report. Based upon the weight of the evidence and the need toensure public confidence in the Drake cleanup, therefore, the Officeof Ombudsman has no discretion to recommend continued operation ofthe Drake Chemical incinerator. Production burn operations shouldnot resume, -if at all, until such time as these recommendations havebeen implemented with the full involvement' of the Drake Chemical SiteRemediation Team, the EPA Environmental Response Team, the ClintonCounty Commissioners, the Lock Haven City Environmental AdvisoryCommittee, the Pennsylvania County Farm Bureau and the citizenpetitioners and their technical advisors.

•AR3I9579

APPENDICES

AR3I9580

APPENDIX A

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May 8, 1997

OFFICE OF 'SOLID WASTE AND EMERGENCY

RESPONSE .

MEMORANDUM

SUBJECT: Interim Report on the Review of the Drake ChemicalSuperfund Site

FROM: Robert J. MartinNational Superfund Ombudsman


Attached is the Interim Report on the review of theDrake Chemical Superfund site.

The review of the site issues has comprised approximately oneyear of extensive time and effort. Besides .gathering and analyzingdocuments and information from the Region and citizens , I alsoconducted site visits and a public meeting.

The Interim Report invites extensive comments during the next30 days in writing. A public meeting, on the record, will occurto take oral information and comments from all stakeholders.

I will issue a Final Report, based on all the aforementioned.information developed, in 90 days.

cc: Michael ShaprioCliff Rothenstein

H«cycl«d/R«cyclibl« • Primed wim Vegetable Oil Based Inks on 100% Recycled Paper (40% Postconsumer) a n Q I Q *"j ft 9

NATIONAL OMBUDSMAN INTERIM REPORT

ON THE

DRAKE CHEMICAL SUPERFUND SITE

MAY 8, 1997

Office of OmbudsmanEPA/OSWER.

AR3I9583

INTERIM REPORTON THE REVIEW OF THE


TABLE OF CONTENTS

PAGE NO.

I. BACKGROUND . . . . . . . . . . . . . . . . . 1

II. AUTHORITY . . . . . . . . . . . . . . . . . 2

III. SIGNIFICANT ISSUES . . . , < . . . . . . . . 3

IV, CONCLUSION . . . . . . . . . . . . . . . . . 20

V, SUMMARY OF RECOMMENDATIONS . . . . . . . . . 21

flR3!958l*

I. BACKGROUND

Affected citizens represented by Arrest the IncineratorRemediation .(hereinafter "petitioners") traveled to St. Louis,Missouri on May 16, 1996, to petition Robert J. Martin, the Directorof the EPA Office of Ombudsman, to designate the Drake ChemicalSuperfund site as an Ombudsman .case. Director Martin instructedpetitioners to make their request in writing outside of. the forumof,the Times Beach case. Petitioners, in a letter to AdministratorCarol Browner dated May 22, 1996, noted that "we are involved inlitigation with EPA principally because of the unwillingness ofour regional administrators to work openly and honestly with ourcommunity ... [w]e have been told so many lies at this point thatwe considered it impossible for us to ever- have the slightestconfidence in EPA regional employees, or the EPA generally,ever again." See, AIR Letter dated May 22, 1996, Appendix A.

Petitioners further noted that their "Ambassador hadthe opportunity to meet and speak with" the "National SuperfundOmbudsman" and "came away with the surprising and welcomed impressionthat there is at least one person within the Agency who has someintegrity, some concern for the people, and the possibility of some,objectivity. After this report, our group, for the first time in16 months, felt maybe we had a chance of working with the EPA towardsolution other than poisoning our community, even though Mr. Martinid not commit to working with us." See, AIR Letter of May 22, 1996.

Appendix A. Following receipt of this Letter, the Office ofOmbudsman designated the brake Chemical site as an Ombudsman caseand initiated fact-finding under its standard procedure, leadingto an Interim and Final. Report,;

Subsequently, United States senators Arlen Specter andRick Santorum, in a letter to Administrator Browner dated June 25,1996, commented that '"[gjiven the controversy associated with theagency's cleanup plans for this Superfund site, and the misgivingsvoiced by some local elected officials and other residents based onthe choice of a cleanup technology, we urge you to convene a publicmeeting as soon as possible that would be chaired by your Agency'sNational Ombudsman, Robert Martin. Our request for your NationalOmbudsman, rather than a Regional Ombudsman, is made because of thenational implications of a decision to incinerate," See, Letter ofU.S. Senators Specter and Santorum, dated June 25, 1996, Appendix B.

Director Martin then chaired a public meeting which was heldin Lock Haven, Pennsylvania, on September 19, 1996. Senator Specter,in a letter to Administrator Browner dated October 3, 1996,noted that fl[t']he meeting was chaired by your Agency's NationalOmbudsman, Robert Martin" and expressed a preference "to receivea report from Mr. Martin which would include his thoughts .on theiLssues raised at the public meeting." See, Letter of Senator Specter'o Administrator Browner, dated October 3, 1996, Appendix C.

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Finally, Senator Specter wrote to Administrator Browner on -February 14, 1997 "in strong support of the' Ridge Administration'scall for a suspension of incinerator operations at the Drake chemicalsite in Lock Haven, Pennsylvania" and expressed an understanding that"Mr. Martin is in a position to issue an interim report of hisfindings .... the residents of Clinton County certainly have everyright to receive such a report and I urge you to take all necessaryactions to ensure that Mr. Martin releases an interim reportpromptly." See, letter of Senator Specter to Administrator Browner,dated February 14, 1997, Appendix D.

Director Martin met once again with petitioners in Lock Haven,Pennsylvania on February 20, 1997 to obtain more specific data andto hear any new information they might raise in connection withthe Drake site. This interim report satisfies the initial requestfor the issues of petitioners to be addressed by the Office ofOmbudsman. Those issues pertain to site characterization, riskassessment, site operations and legal and community involvement.Th© Office of Ombudsman recognizes that petitioners may disagreethat an issue has been addressed and may, therefore, wish to preservemany issues for deliberation in the comment period and inclusionwithin the final report. The final report itself will delineate-findings of fact made by the Office of Ombudsman in this case;following a public comment period and another public meeting onthe record.

II. AUTHORITY

The Office of Ombudsman was established by the Congress within .Section 2008 of the Resource Conservation and Recovery Act. Theoffice consists of the Ombudsman and a secretary, and no other staff.The office manages 36 cases and several thousand inquiries a yearfrom the public with these limited resources. Section (a) of thelaw authorized the Ombudsman to "receive individual complaints,grievancas,. and requests for information submitted by any person withrespect to any program ,or requirement under this Act." Subsection(b) authorized the Ombudsman to "make appropriate recommendations tothe Administrator." EPA established the Office in 1986 pursuant tothe Congressional mandate. Following sunset of the mandate in 1989,EPA decided to make the Office of Ombudsman and its functionspermanent because "Congress has chosen this'solution for dealingwith siich problems in the hazardous waste programs EPA administers."(See, Hazardous Waste Ombudsman Handbook at pg. 1-1.) EPA also•decided to broaden the function to include the Superfund program,among others, to serve the public better.

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•>

Thus, "both the statutory language and its legislative historyconfirm the importance Congress places on the.public assistancefunctions of the Office of Ombudsman. By .centralizing thesefunctions in the Office of"Ombudsman, Congress intended to improveEPA's responsiveness to the public with respect to the increasinglycomplex RCRA and Superfund programs .... the charge of the Ombudsmanto provide assistance with problems, complaints or grievances, isan extremely broad one." f See, Handbook at pg. 2-2,3. Notably, theframework and authority of the Office of Ombudsman did not originatewith EPA; EPA merely elected to make permanent an institution whichthe Congress had required in the law and for which the mandate hadexpired. ;

III. SIGNIFICANT ISSUES

• A, GENERA.L

As previously discussed, many issues were forwarded tothe Office of Ombudsman for consideration. The Office will retainjurisdiction of issues addressed herein as well as any issues raisedbefore completion of the final report until petitioners wish toforeclose discussion on those issues. This is consistent withOmbudsman policy which provides that an "Ombudsman case is consideredclosed when all actions have been.taken to resolve the problem andthe person has been notified. The main concern in closing a caseis being reasonably certain that the person is satisfied that theOmbudsman has addressed all problems." See, Ombudsman Handbook atp g . 3-10. . . . _ . . . - . . _ • - . •

B. SITE DESCRIPTION '

the Drake Chemical site is an inactive chemical manu-facturing facility which operated from 1951 to, 1982. During itsoperation, the company manufactured chemical intermediates usedin the dye, cosmetics, textiles, pharmaceuticals and pesticidesindustries. Immediately to.the west is theAmerican Color andChemical site which is undergoing a RCRA cleanup. Within 1/4 mileof the site is an apartment complex, shopping center and CastaneaTownship Park. A major tributary of the Susquehanna River, BaldEagle Creek, flows less than 1/2 mile south of the site; 3/4 milenorth of the site, the creek flows into the west branch of theSusquehanna River. See, Drake Record of Decision at pg. 3.

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C. SITE CHARACTERIZATION ISSUES

1. Additional Waste Sites

Director Martin observed several drums on a propertyin Lock Haven during the February visit to ascertain new information.Petitioners explained that the drums were disposed of within thePiper Aircraft facility by either the American Color and ChemicalCompany ("AC&C), the Drake, and/or Kilsdonk chemical firms. Thisis consistent with sworn testimony offered by Mr. Raymond C. Streckin a case which involved AC&C. See, Koppers V. Aetna, datedDecember 15, 1993, pgs. 57-60, Appendix E. In that testimony,Mr. Streck, in response to a question as to whether any of the ownersof the Lock Haven.plant "bought a piece of property to dispose ofwaste product near the river bank?" replied that this was done "Downthe other end of Piper near the runway.." He went on to state that hewas aware that waste product was buried in different locations aroundthe Piper area. '

The Office of Ombudsman asked the EPA Region IIIOmbudsman to investigate the matter of the drums further. TheRegional Ombudsman reported that "the property is located near thePiper Aircraft facility owned by Monroe Farms" and that "the wasteat the sites was generated by the American Color and Chemical Company(AC&C) as a result of their efforts to clean up several large sludgeimpoundments owned by the company." The Regional Ombudsman notedthat a "former employee claims that only sludge waste was put intothe trenches .... and that he knows nothing about drums having beendisposed of in the trenches." The former employee was subsequentlyidentified as Mr. Primo Marchessi, retiree from the AC&C firm. TheAC&C is a defendant in the Drake consent decree and the subject ofa RCRA consent order. No information has been found at this timeby the Office of Ombudsman on the management of Kilsdonk's hazardouswaste, Appendix F.

The Pennsylvania Department of EnvironmentalProtection ("PADEP") confirmed to the Regional Ombudsman that"there are now only the remnants of a total of nine drums at thethree sites, and that they are empty .... the drums had plasticliners, but that the liners are now corroded .... the drums obviouslycontained chemicals at one time." Petitioners subsequently returnedto the Piper site and with the use of a simple metal detector foundanother 18 drums at the Piper sites. PADEP nonetheless concludedthat "the site poses no hazard to the community" because "thereare no homes located down-gradient of the drum sites and.that noneof the homes in the area are in the groundwater flow pattern of thesite" and that "there are large .fields between the drum sites andthe homes, and between the drum sites and any water bodies in thearea." See memorandum from EPA Region III Ombudsman to the Officeof Ombudsman, dated March 1-0, 1997, Appendix G,

AR3I9588

Clearly, drums were found at the Piper sites incontravention of former AC&C official Marchessi's representationsand in excess of "the number of drums found by the PADEP. Petitionersbelieve more drums may be present at the Piper sites. The sourceof the drums may be the AC&C site, the" Drake site, both sites, and/orother generators, such as Kilsdonk. The Piper drum sites are lessthan one mile from the AC&C and Drake sites. There may be otherareas located within the Lock Haven community and the surroundingarea whxrth were used as disposal locations. The Streck testimonyalone notes that waste product "was buried in different places aroundhere." Those locations included "[r]ight where K-Mart is..,, thatused to be Hoberman's junkyard. Camelot Estate,, and over in thehollow, over Lockport." Streck .further testified that sludge wastewas taken off of "the plant site" and disposed of in the abovelocations "[f]rom the 50's up until the 60's, when they startedhauling out." See, Streck testimony at pg. 60, Appendix D.Petitioners have also pointed out that drums may be buried inTaggert Recreational Field and near the Unimart in Lock Haven.

The Pennsylvania Bureau of Solid Waste Managementnoted in 1981 that "[t]he investigation at Drake Chemical Companyis now being delayed awaiting the outcome of EPA's criminalinvestigation .... I received a telephone message from EPA regardingan air photo of Drake Chemical in Lock Haven. This photo revealeda possible buried dump site adjacent to the Drake prqperty.A search of courthouse files reveals that Hoberman Salvage Companyand United Real Estate Development Association own this property*Yener Soylemez of EPA _was contacted, and this information was passedon to him. The investigation will continue as soon as EPA notifiesme that their investigation is complete." See, Memorandum-to theFile from-Thomas Showman, Solid Waste Specialist, WilliamsportRegional Office, Bureau of Solid.Waste Management, Commonwealthof Pennsylvania, dated March 2, 1981, Appendix H. At -this time,the Office of Ombudsman has no other information regarding thealleged criminal investigation 16 years ago. .

.' PADEP expressed to- EPA Region III on April 15, 1997that a contractor would be retained to address the matter of thedrum sites on the Piper property and that it would, not be necessaryfor EPA to duplicate their efforts. EPA Region III subsequentlydiscussed "our protocol of allowing a State to.take responsibilityfor an emergency response .... it has always been our operationalpolicy to give notice to the appropriate state agency both for theirinformation and to provide them the first opportunity to carry outa response. This has been done respecting State program responsi-bilities to respond in a timely fashion to incidents that are closerto their own response personnel.11

AR319589

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Clearly, the availability of State resources isa factor in an EPA determination as to whether to undertake aremoval action to address an uncontrolled waste site. Seer NationalContingency Plan, Subparts E and F. See also, Memorandum fromCharlie Kleeman to John Armstead, EPA Region III Ombudsman, April 18,1997. The policy expressed therein is to recognize "State'sabilities to respond in a timely fashion to incidents that are closerto their own response personnel" and also "EPA giving States theopportunity to carry out their own responses at sites." See, KleemanMemorandum, Appendix I*

Subsequent to the National Ombudsman identifying drumsat the Piper site, PADEP hired Westinghouse Remediation Services toinvestigate the entire area.

These policy goals can be met, however, in acollaborative effort between the EPA and the PADEP. The overridinggoal of the Superfund law and the National Contingency Plan is toprotect human health and the environment. Here, several uncontrolledsites in the Lock Haven area may exist that will need to be quicklyinvestigated and addressed. ' EPA and Pennsylvania have a long historyof working together to address hazardous waste issues in the LockHaven community. See, Showman Memorandum, Appendix H. See also,Consent Decree for the Drake Chemical site and the Consent Order forthe American Color and Chemical site. EPA should support the effortsof the PADEP to address the drum sites at the Piper facility as theAgency has supported past investigative efforts in Lock Haven.

RECOMMENDATION

EPA and the Environmental Response Team should assist PADEPto investigate and address the drum sites at the Piper facilityand other uncontrolled sites which may exist in the Lock Havenarea. EPA, the ERT and PADEP should consult with petitioners,other private citizens and local government officials to assurea collaborative effort that focuses on - appropriate samplinglocations. Sampling and analysis should be done to determinethe sources of tha drummed waste.

2. Contaminants of Concern

Petitioners have argued that some contaminants havenot been sufficiently characterized at the Drake site. For example,petitioners are concerned that Pentachlorophenol (PCP) was foundat the Drake site. EPA has concluded that PCP was not produced,manufactured or disposed of at the site, but did note that "[o]utof 78 soil samples at the site which were tested for PCP, only three

AR3195SO

contained detectable levels...', while these detected concentrationswere high, EPA believes they are probably due to the presence onthe site of wood that had been treated with PCP as a preservative."See, EPA Integrated Risk Assessment at pg. 34. EPA had articulatedearlier that PCP was "found sporadically throughout the area and inthree on-site samples" but did not believe that the compound was siterelated. See, Drake Record of Decision at pg. 20.

f i ~ iWhateve: - •; ,-,.£jry is advanced to explain the detection

of PCP at the site, however, it is noteworthy that PCP was foundin three samples at high concentrations and that it had been foundsporadically throughout the area in earlier characterization work.Petitioners have also commented that Silvex, an herbicide, has notbeen sufficiently accounted for at the Drake site. EPA noted thatsilvex "was found at low concentrations in some drums of waste atthe site" and that it "was not detected in any soil samples." See,Memorandum of"Frank Vavra, Remedial Project Manager, to Thomas C.Voltaggio, Director, Hazardous Waste Management Division, US EPA,"RCRA Dioxin Listed Wastes Will Not Be Treated in the Drake ChemicalSuperfund Site Incinerator", dated August 7, '1996, Appendix J.

I Wastes from PCP are included in the waste listingswhich trigger a determination that a RCRA listed waste is present.As EPA has noted "an incinerator burning hazardous waste must bedesigned, constructed and maintained so that , when operated inaccordance with the operating requirements specified under 40 CFR264.345, it will achieve a destruction and removal efficiency (DRE)of 99.99% "for each principal organic hazardous constituent (POHC) inits waste feed. 40 C.F.R. 264.343 (a)(1). . An - incinerator burningcertain RCRA "listed" wastes, however, must achieve a DRE of 99.9999-%40 C.F.R. 264.343 (a) (2)." See, Vavra Memorandum, Appendix J.

PCP waste does trigger RCRA listings in the FO26 andF027 categories-and silvex wastes trigger a RCRA listing for the F027category. Historical-EPA analysis demonstrates high levels of dioxinin.former building structures and holding tanks at the Drake site.See, EPA memorandum from William A. Hagel, Remedial On-SceneCoordinator to Walter F. Lee, Chemist, Dioxin Task Force, Region III,"Dioxin Results F.rora Building Samples at the Drake Chemical SuperfundSite", dated February 13, 1984, Appendix K. The findings of thismemorandum led former Congressman and EPA Region III AdministratorPeter Kostmayer to conclude in a letter to Vice President Gore that"the Agency has.failed to set proper federally regulated waste streamemission limits for dioxin despite- the existence of the 2/13/84document which showed significant dioxin levels at numerous Drakesite locations .. .." . See, Letter from Peter Kostmayer to VicePresident Albert Gore, dated September 12, 1996, Appendix L.

AR3I959I

It should be noted that dioxin was found in previoussampling only in site drums and structures which will not beincinerated. Fenac is the predominant site contaminant that willbe incinerated. Fenac was known to have been produced at the siteand was found in approximately 37 of 43 soil samples at Drake. EPAfound that the components of Fenac "do not normally generate dioxinbyproducts." See, EPA Integrated Risk Assessment at pg. 33.. EPAdid not explain, however, whether Fenac and its components maygenerate dioxin by-products under conditions which are not deemednormal. It is clear that Fenac may form dioxin "under irregularoperating conditions." See, Vavra Memorandum at pg. 5, Appendix J.

The totality of the evidence known thus far shows thatdioxin at high levels was present in structures and tanks and Silvexat lower levels was present in drums at the Drake site. Moreover,PCP was found at high levels in three locations in soils at the siteand Fenac was found in virtually all sampling locations at the site.What is less clear are the levels of those compounds and thedetection limits that were used to analyze for these compounds, ingeneral, and the locations and number of soil samples taken for theSilvex compound at the Drake site. Further, although PCP was notfound extensively at the Drake site, it is a recognized contaminantat the AC&C site which is located next to the Drake site. See, AC&CConsent Order. EPA was careful to note "chemical analysis has shownthat the level of contaminants throughout the site do present ahealth risk and it is known that some of the specific compounds couldbe present even if they are not specifically detected by analyticalmethods." See, Drake Record of Decision at pg. 45.

The. presence or absence of RCRA listed wastes insignificant concentrations at the Drake site is a key issue at theDrake site. As previously discussed, the existence of RCRA listedcompounds such as PCP and Silvex in materials to be incinerated atDrake could require a Destruction Removal Efficiency of 99.9999% asopposed to the current requirement of 99.99% The Office of Ombudsmanacknowledges that EPA Region III has found that such wastes are notpresent in sufficient quantities to trigger RCRA listings and ahigher DRE. The Office of Ombudsman has not been provided enoughinformation, at this time, to comment on this Regional finding.

PCP was found on three site locations, however, andSilvex and Dioxin were found in drummed waste and within structuresand holding tanks on the site. It is not clear what the detectionlimits were for PCP and Dioxin in soils and the extent to whichSilvex was sampled for in soils. As the Drake Record of Decisionnoted "some of the specific compounds could be present even if. they.are not specifically detected by analytical methods." See, ROD atpg. 45. The availability of the foregoing information and the needfor public confidence in the selected remedy warrant an extremelycautious approach.

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RECOMMENDATION

EPA and the Environmental Response Team should conduct anotherround of sampling and analysis for dioxin and PCP and Silvex insite soils and in the waste stockpiles to be incinerated. Samplelocations, analytical methods (use of EPA Method 8290) for samplingdioxin in soils and detection limits should be developed coopera-tively with the _PADEP, local government officials and the technicaladvisors for petitioners. An EPA Fact Sheet should then be preparedwhich explains the new sampling results and the old sampling results.

D. RISK. ASSESSMENT ISSUES

1. Petitioners have argued that the risk assessmentfor the Drake site is deficient. Three risk assessments have beenperformed to predict potential trial burn impacts from the Drakeincineration operation. The first risk assessment was conductedin December of 1995. The second risk assessment report was completedin June of 1996. A third risk assessment of the trial burn wasconducted in February of 1997 to reflect winter season conditions.EPA has concluded that despite variables and modifications inapproach between the risk assessments, "the resulting calculatedrisks for each of the three risk assessments are within the rangeconsidered acceptable for cleanup activities under the Superfundhazardous waste program." See, EPA Draft Comparison Report atpg. 39. . . .

EPA has also committed to evaluating the risks fromoperation of the incinerator during the trial .burn by analyzing realemissions data and '"EPA has committed that before we begin a produc-tion burn, we will havea public meeting to discuss a comprehensiverisk assessment for the production burn, and as EPA has alwaysmaintained, we will not commence the production burn unless therisk assessment shows it is safe to proceed." See, EPA Region IIIletter from Gregg Crystal to Petitioners Technical Advisor, datedFebruary 28, 1997.

2. Air Monitoring ,

Petitioners have argued that the risk assessmentshould take into account the problems the air monitoring networkis having in connection with B-Napthylamine (BNA). Petitioners notedearlier this year that "it is clear there are non-detects for BNA atthe monitors .... more information is needed before the results canbe validated. Unresolved questions include? calibration parameters,quality control procedures, field blank use and recovery, impact oflocal modification and spike recovery on local Drake monitors ...."etitioners asked EPA to "stop incineration until perimeter and

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off-site monitors can measure BNA at the trial burn requirementof .001 ug/m3; or if that level is technically impossible then havea public comment period on whatever level the monitors are ultimatelysuccessful in achieving." See, GAP Preliminary Report No. 2, datedJanuary 28, 1997.

EPA was not able to meet the original "BNA detectionlimit of 0.001 micrograms per cubic meter" but has been able to meeta detection limit of "2.0 micrograms of BNA per cubic meter usinga NIOSH analytical method, which is well below the PA Air toxicguidance level for BNA of 19.0 micrograms per cubic meter."See, EPA Letter to Petitioners at pg. 2, dated February 28, 1997.Although this positively addressed the failure to achieve theoriginal trial burn requirement for detection of BNA in the air . •monitoring network, many non-detects for BNA resulted during thetrial burn period because of the detection limit problem.

RECOMMENDATION

EPA and the Environmental Response Team should meet with PADEPand the technical advisors to petitioners to explore options foranalytical methods that will meet the original requirement fordetection of BNA in the trial burn plan. Particular emphasis shouldbe accorded to the issues raised by petitioners in connection withdetecting BNA in the air monitoring network. Following suchdiscussions, an EPA Fact Sheet should be issued which explains theanalytical method that has been selected together with reasonssupporting the choice of the method.

3. Weather Data

Petitioners have argued that the meteorologicalcomponent of the risk assessment is deficient because the datais not site specific to the Drake facility but is derived from theWilliamsport, Pennsylvania Airport which is approximately 20 milesaway from the site. EPA has explained that this data "was used inlieu of on-site data that had been invalidated for the projectedperiod of the trial burn. Those on-site data were invalidatedbecause of instrument data and improper tower siting. For purposesof estimating the ambient impacts of the incinerator stack emissionsduring normal operations, EPA used the ISC3 (Industrial SourceComplex Model, Version 3) model on the Williamsport data, and forcalculating the effects of upset emissions, EPA used the "INPUFF"mo.de 1." See, EPA Response to Comments, Drake Chemical SuperfundSite Trial Burn Process, dated September 12, 1996.

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- 1 1 - , . . .

A related issue forwarded by petitioners is thelack of analysis within the risk assessment for thermal atmosphericinversions in the Valley location, in general, and within the airshed above the site, in particular. This is a concern supported byformer Congressman and EPA Region III Administrator Peter Kostmayerwho commented that "[i]n consultation with EPA technical staff,I directed the Regional Hazardous Waste Division to provide localcitizens with a full and complete assessment of the effects ofatmospheric thermal inversions as they relate to the proposed Drake .incineration .... EPA has failed to provide a full and completeatmospheric assessment ....". See, Kostmayer Letter to VicePresident Albert Gore, dated September 12,. 1996, Appendix L .

.Ms. Justh, a citizen of Lock Haven, commented in thepublic meeting held last September that EPA should not abandon itsefforts to use site specific weather data but should return, to thesite and develop a suitable data base. This was supported by othercitizens who also felt that the commitment made by EPA to assessthermal inversions in the Valley was broken. See, Transcriptof Drake Public Hearing at pg. 174, dated September 19, 1996,Appendix M. The CALPUFF and INPUFF models are useful for assessingthe ambient impacts of incinerator stack emissions during normal andupset conditions, however, they may -not be uniquely sensitive to thesite specific weather conditions or to thermal inversions in theValley where Lock Haven is situated. It may be useful to employweather balloons to measure the effects of thermal inversions onincinerator stack emissions. In any event, petitioners are concernedthat EPA is proceeding without the benefit of site specific data forthe project.

RECOMMENDATION

EPA and the Environmental Response Team should developinstrumentation and methodologies to assess, on a site specificbasis, the ambient impacts of incinerator stack emissions duringnormal and upset conditions at the Drake site. Methodologies(e.g., weather balloons) should also be developed to assess theimpact of thermal inversions on incinerator stack emissions atthe Drake site. Results from employment of these methods, ifsignificantly different from the computer modeled results, shouldbe factored into the Integrated Risk Assessment.. A decision shouldthen be made as to whether it is safe to proceed.

3. Fugitive Emissions

Petitioners have argued that fugitive emissions fromthe site have not been sufficiently addressed in the risk assessment.The EPA Integrated Risk .Assessment provides that "fugitive emissions

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will be negligible due to the control measures prescribed." See,pg. 16. Presumably, those measures include negative pressureenclosures and watering down the site waste and soils. Petitionersremain concerned, however, that the large piles of waste feed andash on the site pos© a threat to the community. Those piles arenot all contained within negative pressure enclosures and petitionershave complained that winds have carried dust and particulate matter.into the community. A nursing home which provides care for theelderly is within one-quarter mile of the site.

RECOMMENDATION

EPA and the Environmental Response Team should develop, whereappropriate on the site, additional techniques to manage fugitiveemissions from the Drake site, in general,, and the waste feed andash piles, in particular. This could include the use of moren©gativ© pressure enclosures or the use of additional syntheticcoverings to prevent spread of dust and particulate matter into thecommunity. Any such measures should be established'in consultationwith th© PADEP, local government officials and technical advisorsto th© petitioners.

C. SITE OPERATIONS ISSUES

1. Chain of Custody

The technical advisor for petitioners made a findingin January that "the chain of custody for the bottom ash samples wasbroken for both trial burn runs conducted on 1/25/97, and considerthe samples invalid .... it was observed that the trial burn samplingcontractor MRI ash sampler who was collecting bottom ash samplesevery half-hour for both trial burn runs left the bottom ash samplesunsecured, unattended, and "completely out of his sight for over30 minutes between each sample period throughout the entire two runs.H© also left the entire first run samples unsecured, unattended andcompletely out of his sight for over 30 minutes after the end of therun. During the entire two runs all persons on site had full andfre© access to th© samples. Further access was given to anotherbottom ash sampler working for the EPA contractor OHM. This samplerwho was collecting bottom ash samples hourly during both runs tofulfill th© put-back sampling requirement had.full, free andunsup©rvised access to the MRI samples. He also shared the samework station, used similar collection plans, and collected samplesat times different from the MRI sampler." See, GAP Memorandum toEPA, Hand Delivered on Site, January 26, 1997.

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The technical advisor went on to note that "[tjhisissue was brought to your attention after the first run in an attemptto prevent further violations, possibly resulting in declaringfurther runs invalid. There.-was no resolution on this issue,and the second run continued with no changes in the chain of custodyprocedures. It must be pointed out that less than satisfactory chainof custody procedures prompted,a second stack test burn last week atthe Times Beach site almost a year into their project. This issueshould be resolved promptly, hopefully while the MRI sample team isstill on site." See, GAP Memorandum dated January 26, 1997.

EPA Region III noted the observation of the technicaladvisor that "a cooler of ash samples was left unattended forapproximately one-half hour inside the secure area" .... but.concluded that " [p]roper chain of custody and traceabilityprocedures were followed for ash samples. The data is reliable.These procedures have been reviewed by EPA^ PADEP, USACE andindependent consultants." See, EPA Letter from Gregg Crystalto GAP dated February 28, 1997. It would be useful to review theprocedures which apply to chain of custody to address this issue.

Generally, all samples were to be "stored with icein insulated containers in the field and during transport. Soil feed'samples, ash samples and stack samples will be stored and,shipped inseparate containers." See, Engineering Descriptions, Section 6.1Sampling Handling and Preparation. It is also understood that "thefield sampler is personally responsible for the care and control ofthe samples collected until they are properly transferred to a fieldsample custodian or dispatched to MRI. The crew chief overseesproper preservation, storage and security of samples during thefield work." See, Engineering Description, Field Control of Controlsat 7-3.

A model sample custody record is included to provide .for storage container integrity and sample inventory checks. Thatprovides that "[t]he storage containers and samples should be checkedeach day in the field. Containers may remain unlocked or unsealedonly while in view of the custodian".... [f]or sample traceability,only inventory checks need to be entered during sample transfers tothe next custodian. Storage containers do not have-to be locked orsealed, but they must be placed in a secure location at all times."See, Engineering Description. Instructions for Filling Out theSample-Custody Record, Section 7-5, Figure 7-lb.

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EPA has an expectation that "some of the QA/QCobjectives may not be met. In such cases, the results will beflagged in the test report and the QA report, it is understood,based upon discussions between OHM and EPA, that flagged data wouldbe acceptable if there are QA/QC problems (i.e. the Risk Burn testswould not be considered as invalid.) Any such problems will be notedin the report, along with an assessment of the impact on the testresults." See, Drake Quality Assurance Report, G.8.4 at G54-55.Corrective actions must be taken for samples which are lost, broken,incomplete or invalid. In those events, the following must occur:"1. Resample or extend test if possible. Contact project leaderfor instructions. Redo the test if lost sample severely compromisestest results. The sampler, crew chief, analyst, or project leaderis required to document the problem and actions taken in the fieldor laboratory notebook for inclusion in the project files." See,Table of Corrective Actions, Section 15-2.

The. Office of Ombudsman is not finding that the datafrom the Risk Burns and Trial Burn is necessarily invalid at thistime. The type of quality assurance and chain of custody protocolnormally adhered to by EPA in a Superfund cleanup, however, were notfollowed at the Drake site for purposes of supervising the collectionof bottom ash samples during the Trial Burn. The custody recordrequires that "[c]ontainers may remain unlocked or unsealed onlywhil© in view of the custodian" .... and further provides that"[s]torage containers do not have to be locked or sealed, butthey must be praced in a secure location at all times." See,Sample Custody Record, Section 7-5, Figure 7-lb.

Here, bottom ash samples during the trial burn phasewere, according to the technical advisor for the petitioners, leftunattended and completely out -of sight for 30 minute intervals whileth© samples were unlocked. This violates the requirement that samplesb© unlocked only while in the direct view of the custodian. As towhether th© samples were placed in a "secure location at all times"an argument could be made that the Drake site itself is a securelocation. Th© security of Drake site itself, however, has beenquestioned significantly by petitioners and former employees.

Again, the technical advisor to petitioners noted thatn[©]vidence of beer drinking was discovered on-site on 1/27/97, on-sit© inspection showed conclusively that empty beer cans and bottlescame from on-site because beer cans and'bottles were mixed with sitedocuments in double sealed trash bags in dumpsites located inside thesecond interior guarded fence. This evidence strongly suggests thatth© beer was consumed on site." See, GAP Memorandum to EPA datedJanuary 1997. EPA does not believe that there is any evidence to"substantiate the claims that any site supervisor or employee has

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violated" stringent policies against possession or use of alcoholor drugs on the site. EPA has also noted that "at least two moreinspections by OSHA are upcoming including one by a specializedincinerator inspection team.". See, EPA Letter from Gregg Crystalto GAP, dated February 28, 1997.

Nonetheless, the presence of the empty beer cans andbottles themselves represents a breach in the security of the sitebecause such items should not be on the site proper. In addition,one former OHM employee alleged "he was "roughed up" and stuffed ina drum containing contaminated soils in order to coerce his .silenceregarding problems at the Drake site". See,'GAP Letter to EPARegion III, dated February_4, 1997.. This is not an atmosphere whichis conducive to a secure site.

In such an atmosphere, guarding the integrity of.samples is of critical"importance7" Samples should be under theconstant supervision of a custodian or field sampler, until theyare locked within a secure structure such as a sampling traileron the site. The management of ash collection and sample shippingby EPA Region. VII and'the Environmental Response Team in the retestrecommended by the Office of Ombudsman for the Times Beach site inMissouri is noteworthy and should be followed at the Drake site.Regarding ash sample management, in particular, "[e]ach jar waslabeled with the time and date of sample collection, the projectname, and the analysis to be performed. A custody seal was attachedto the lid of each jar and each jar was placed in a ziplock plasticbag. Separate chain of custody forms were completed for the REACsamples, the split samples, and the archive samples. Samples werekept under constant surveillance by REAC personnel until the samplecooler was packed and custody sealed. At the .end of each day thesamples were kept in the locked REAC trailer." -See, EPAEnvironmental Response Team Final Report on the Stack .Test for theTimes Beach Project, dated April 1997, Section 2.2.2.2, Ash SampleManagement at pg. 14.

RECOMMENDATION'EPA and the Environmental Response Team should carefully examine

the quality .assurance records for all samples to assess whether thechain of custody procedures for handling of all samples (stack, etc.)were any different than the procedures for bottom ash samples of theDrake trial burn. The assessment should be done in consultation withthe PADEP, local government officials and the technical .advisor tothe petitioners.

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D. LEGAL AND COMMUNITY INVOLVEMENT ISSUES

1. Community Involvement Issues

Petitioners and others within the Lock Havencommunity feel that commitments made my former EPA RegionalAdministrator Kostmayer have not been observed since his departurefrom EPA. The thermal inversion and waste stream emissions limitswere discussed previously in the section on risk assessment issues.Following a discussion with petitioners, Kostmayer also notedthat "EPA has not performed an assessment of new technologies ....Unless the EPA can fully respond to and resolve to the community'ssatisfaction all of the serious questions which remain regardingth© impending Drake incineration, I believe the Agency shouldreopen the Record of Decision (ROD) on the Drake Chemical site ....".S©©, Letter of Peter H. Kostmayer to Vice President Albert Gore datedSeptember 12, 1996, Appendix L.

The Clinton County Farm Bureau communicated directlywith th© Offie© of Ombudsman and noted that "[d]ue to recent concernsb©ing voiced from more of our members, our Board of Directors votedto extend our concerns to your office in hopes that you could beinstrumental in persuading EPA to reopen their Record of Decision.Our Board would like a determination of, 8 years later, whether ornot incineration is still the best method of cleanup for this siteb©ing that th© 1988 Record of Decision was based on the riskassessment being done in that time period. A new risk assessment hasbeen developed this year for this site and we feel that a new Recordof Decision should be established based upon new findings andstatistics. We would also like to be assured that there is aneffective evacuation plan for all residents in Lock Haven andnearby communities should any detrimental malfunctions occurat the site." See, Letter of Clinton County Farm Bureau toth© Office of Ombudsman, dated November 5, 1996.

State legislators addressed pointed remarks to EPA onth©s© matters. For example, State Senator J. Doyle Corman commentedthat "[w]© have lost the public input we so desperately tried toestablish in th© early days of this project .... now, EPA is simplyrunning th© show as it sees fit, no matter what local officials orState officials say. We cannot tolerate this attitude any longer.... this Agency is supposed to be here to help clean up a manmad© disaster .... not create another one." See, Statement ofSenator J. Doyle Corman, dated February 12, 1997, Appendix 0.Moreover, State Representative Cam'ille George, the Chairman ofth© Environmental Resources Committee in the Pennsylvania Houseof Representatives for 14 years, commented that "I can stateunequivocally that this operation appears to be the most poorly

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operated and poorly regulated one that I have ever seen." See,Letter of Representative Camille George to EPA AdministratorCarol Browner dated April 24, 1997, Appendix N.

PADEP Secretary James Seif also commented that "EPAstaff have "frequently missed weekly progress meetings being heldbetween the contractor, the U.S. Army Corps of Engineers, DEP andsupposedly EPA _to discuss..technical and other issues of concern.... causing serious problems in providing the community withreliable information about what is happening at the site .... If notcorrected, these problems could put the community, the environmentand EPA's credibility at risk when the incinerator begins fulloperation." See, Statement of PADEP Secretary James Seif, dated.February 14, 1997,, Appendix P.

Finally, United States Senator Santorum remarked that"the only reasonable conclusion at this point is to halt all activityat Drake until we resolve the problems surrounding this operation"....-"for this activity to go forward in an atmosphere where thecommunity lacks trust in the operation and State and local concernsgo unanswered is a recipe for disaster." See, Statement of UnitedStates Senator Santorum, dated February 13, 1997, Appendix Q.United States Senator Specter expressed a "view that the cleanup mustnot exacerbate the health and environmental problems associated withthe Drake site" and expressed "strong support .... for a suspensionof incinerator operations at the Drake site." See, Letter of UnitedStates Senator Specter to EPA Administrator Browner, dated February14, 1997, Appendix D.

The Pennsylvania State Legislature has also raisedconcerns with respect to the Drake project by enacting a resolutionwhich found that "[s]erious concerns have been raised by thePennsylvania Department of Environmental Protection about themanagement of the cleanup which could threaten the community andthe environment; and there is confusion over which of.EPA's employeesor contractors has ultimate on-site authority for management of theproject and to shut down the incinerator if problems occur; and EPAstaff has chosen not to come to progress meetings with thecontractor, the United States Army Corps of Engineers and DEP toreview issues and concerns about site cleanup; and the EPA did notconsult with the community or DEP about the schedule or technicalscope of the trial burns which have been conducted to date; and theEPA did not advise the community or DEP of the steps it is takingto investigate allegations of drug, and alcohol abuse among employeesthat operate the incinerator;". See, Senate Resolution No. 31.dated April 15, 1997, Appendix R.

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The Legislature resolved to "urge the USEPA to ceaseoperation of the incinerator at the Drake Chemical Superfund siteuntil the serious concerns about on-site decision making, involving*th© officials of the Borough City of Lock Haven, Pennsylvania and thePennsylvania Department of Environmental Protection in key decisionsand th© allegations of drug and alcohol abuse are investigated ...."and that EPA "publically disclose the full and complete test resultsfrom all trial burns at the Drake Chemical site as soon as they areavailable." Se. . Senate .Resolution No. 31. April 15, 1997.

The Office of Ombudsman has brought to the attentionof the EPA Inspector General allegations of drug and alcohol abuseand d©ath threats related to the Drake site cleanup.

Notably, EPA Region III has begun to address manyof these problems. EPA Region III Administrator McCabe pointed outrecently that "USEPA, USAGE, and PADEP held a partnering meeting inLancaster, Pennsylvania, on March 5 and 6, 1997 to resolve PADEP'sconcerns" and based on this meeting it is the Region's "understandingthat these concerns have now been addressed." See, Letter from EPARegion III Administrator McCabe to United States Senator Santorum,dated April 21, 1997. Although €he letter discussed many of theissues raised by petitioners, petitioners do not feel that the letterwas responsive to their concerns.

RECOMMENDATION

,EPA should defer any production burn operations untilappropriate Federal law enforcement officials have completedan investigation of all drug and alcohol abuse issues raised byPennsylvania State Senate Resolution 31 and direct and anecdotalinformation provided the Ombudsman about drug and alcohol abuseand death threats.

2. Legal Issues

SEDA-COG, the Council of Governments representing13 counties in Pennsylvania, including Clinton County where theDrake site is located, has proposed to the Congress that "citizensand local governments" should be able "to legally challenge EPAprior to th© completion of Superfund cleanups ff there is reasonableconcern that irreparable harm to a population may occur." The countygovernments have reasoned that "Superfund sites generally containpotentially lethal or carcinogenic toxins and irreparable harm toa population may result from EPA's choice of remediation, or from .violations of the law occurring on the clean-up site itself."S©a, Issue Papers for SEDA-COG Congressional Meetings.

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' RECOMMENDATION

The EPA Office of General Counsel should fully explain toSEDA-COG the law and the policy which support.the prohibition oflegal challenges to EPA Superfund cleanups prior to completion.EPA should consider expansion of dispute resolution mechanisms withinSuperfund consent decrees in general and in the Drake consent decree,in particular, to allow for intervention by aggrieved parties whereirreparable harm to a c _;*»unity may result from EPA's choice ofremediation or from violations of law occurring on the site itself.

3. EPA Contractor, Other Personnel\

On October 9, 1992, Chemical Waste Management Inc.of Oak Brook, Illinois agreed with the United States Department ofJustice to pay $11.6 million in fines to settle federal charges inconnection with the cleanup of the Lackawanna Refuse Superfund sitenear Scranton, Pennsylvania. At the time, this was the largestenvironmental crimes case prosecuted under" the Superfund law. Inaddition to the criminal fines levied against the firm, the Companyagreed to terminate and/or discipline six CWM employees. The Officeof Ombudsman understands that the firm was not debarred as a resultof the criminal fines or the administrative settlement with theEPA. Petitioners expressed a concern that the same terminatedand/or disciplined individuals may now be working for OHM at theDrake site. EPA Region III has found that,"[t]here are no employeesor contractors-working at the Drake site that are debarred from stateor federal projects." See, Letter from EPA Regional AdministratorMcCabe to United States Senator Santorum, dated April 21, 1997.

Debarment is not the central issue, however, of petitionersconcern about these individuals who may be working at the Drake site.Petitioners wish to know if these potential individuals worked atthe Lackawanna site during the period when criminal violations werecommitted and/or were either disciplined or terminated by CWM at theLackawanna sate five years ago. Beyond noting the specific concernof petitioners here it would not be appropriate for the Office,ofOmbudsman to pursue this matter directly. - .

RECOMMENDATION

'The EPA Office of Inspector General should, if appropriate,respond directly to the petitioners concern that individuals whoworked at and were the subject of an administrative settlementbetween CWM and EPA five years ago which involved either terminationand/or discipline to settle charges are now working for the Drakesite contractor, OHM Inc.

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IV. CONCLUSION

Petitioners have offered meritorious issues for review by theOffice of Ombudsman. This interim report addresses many of thoseissues. Several other issues such as the request to assess newtechnologies, to assure an evacuation plan and to examine the actualoperation of the incinerator could not be dealt with in this interimreport because of time and resource constraints. As previouslynoted, thos© issues and others which may be raised during the commentperiod will be addressed within the final report of the Office ofOmbudsman on the Drake site. The-Office of Ombudsman will takewritten comments from those parties who wish to make them for 30 daysafter th© issuance of this interim report. The Office of Ombudsmanthen proposes to hold another public meeting on the record so thatinterested parties may once again formally comment on Drake siteissues. The Office of Ombudsman will then issue a final report onth© Drak© site within 30 days after the public meeting on the record.

Th© ©ntire period for completing the review of the Office ofOmbudsman should take no longer than 90 days. Thus, a final reportshould b© issued by August 8, 1997, following opportunities forwritten and public comment on the record and the evaluation of thosecomments by th© Office of Ombudsman. This should also provide forenough time for the execution of any interim recommendations whichar© accepted by EPA and for EPA to make available the data from thetrial burn to appropriate parties such as the PADEP, local governmentofficials and petitioners and their technical advisors. EPA hascommitted that no production burn will take place at the Drake sitebefore May 15, 1997. The principal recommendation of the Office ofOmbudsman in this interim report is that no production burn takeplace at th© Drake site until after this review process has beencompleted which should be no earlier than August 8, 1997. The Officeof Ombudsman agrees with Pennsylvania State Representative CamilleG©org©, who recently communicated to the Office that lf[t]hese mattersneed to be fully investigated before any further action is taken toremediate the Drak© site." See, Letter from Representative Georgeto th© Office of Ombudsman, dated April 30, 1997, Appendix N.

RECOMMENDATION

EPA should not begin production burn operations at the DrakeSuperfund site before completion of the review of the. EPA Officeof Ombudsman and the issuance of a final report on August 8, 1997-Th© interim period will be used to take written and oral commenton the record from the community and other stakeholders, to executeany interim recommendations agreed to by EPA and to distribute thetrial burn results to appropriate parties for their information andanalysis.

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V. SUMMARY OF RECOMMENDATIONS

EPA and the Environmental Response Team should assist PADEPto investigate and address the drum sites at the Piper facilityand other uncontrolled sites which may exist in the Lock Havenarea. EPA, the ERT and PADEP should consult with petitioners,other private citizens and local government officials to assurea collaborative effort that focuses on appropriate samplinglocations. Sampling and analysis should be done to determinethe sources of the drummed waste*

EPA and the Environmental Response Team should conduct anotherround of sampling and analysis for dioxin and PCP-and-Silvex insite 'soils and in the waste stockpiles to be incinerated. Samplelocations, analytical methods (use of EPA Method 8290) for samplingdioxin in soils and detection limits should be developed coopera-tively with the PADEP," local government officials and the technicaladvisors for petitioners. An EPA Fact Sheet should then be preparedwhich explains the new sampling results and the old' sampling results.

EPA and the Environmental Response Team should meet with PADEPand the technical advisors to petitioners to explore options foranalytical methods that will meet the original requirement fordetection of BNA in the trial burn plan. Particular emphasis shouldbe accorded to the issues raised by petitioners in connection withdetecting BNA in the air monitoring network. Following suchdiscussions, an EPA Fact Sheet should be issued which explaihs theanalytical method. _that has been selected together with reasonssupporting the choice of the method. _ ..___..

E,PA and the Environmental Response Team should developinstrumentation and methodologies to assess, on a site specificbasis, the ambient impacts of incinerator stack emissions duringnormal and upset conditions at the Drake site. Methodologies'(e.g., weather balloons) should also be developed to assess theimpact of thermal inversions on incinerator stack emissions atthe Drake-site. Results from employment of these methods, ifsignificantly different from the computer modeled results, shouldbe factored into the Integrated Risk Assessment. A decision shouldthen be made as to whether it is safe to proceed.

EPA and.the Environmental Response Team should develop, whereappropriate on the site, additional techniques to manage fugitiveemissions from the Drake site, in general, and the waste feed andash piles, in particular. This could include the use of morenegative pressure enclosures or the use of additional syntheticcoverings to prevent spread of dust and particulate matter into thecommunity. Any.such measures should be established in consultationith the PADEP, local government officials and technical advisors

to the petitioners. ' . .

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- 22 -

EPA and th© Environmental Response Team should carefully examineth© quality assurance records for all samples to assess whether thechain of_custody procedures for handling .of all samples (stack, etc.)were any 'different than the procedures for bottom ash samples of theDrake trial burn. The assessment should be done in consultation withthe PADEP, local government officials and the technical advisor tothe petitioners.

EPA should defer any production burn operations untij. appropri-ate Federal law enforcement officials have completed an investigationof all drug and alcohol abuse issues raised by Pennsylvania StateSenate R©solution 31 and direct and anecdotal information providedthe Ombudsman about drug and alcohol abuse and death threats.

Th© EPA Offic© of Inspector General should, if appropriate,respond directly to the petitioners concern that individuals whoworked at and wer© the subject of an administrative settlementbetween CWM ajid EPA five years,ago which involved either terminationand/or discipline to settle charges are now working for the Drakesit© contractor, OHM Inc.

The principal recommendation of the Office of Ombudsman in thisInterim Report is that no production burn take place at the Drakesite until after the Ombudsman review process has been completedwhich should be no earlier than August 8, 1997.

RR-319606

APPENDICES

NATIONAL OMBUDSMAN INTERIM REPORT

ON THE


MAY 8, X997

AR319607

APPENDIX A

AR3196Q8

P. 81

ARREST THE INCINERATOR REMHDIATIONPOB«1$6 .LockHaven, PA 17745

Carol M_ BrownerEPA Adminirtrator

BlUWTICf,

W* «frg ineiiJgHi rfflm ATR StMritig r

mcijierKor in Lock Hiven, PA, are eoremdy ditteEaed at 6ie neve ofteEPA idsn to create xcgioavlf

EPX There hat bem only one; ax! dm wMtpcfatelouocdiimy toccdttot* • *

At Aftptaaefrt rime me ate inuiiJMf il rn Krigptiim wttfc TPA prmfrpaHy hgg MB flf ffc* ifWfilUnyircgiooai »JMiiiunu>ots to node openly md hone«ay with our amununity. We htvc been toidio many j

^at>oe^ •EPA enipfcjec or tte EPA genenfly, ever again.

Bocft ufaohave been be poaonedty flic EPA since MncklTJh. (Wcwiihyouoookl ;pcnofl«%»e« the eye* of tfaotepcopia.. the sheer §»dne«. TotfatttMovveQro«m£Orea&nttttwQaidiJmowin ypabonittosmpeopld IfthcUSGoMeiKBientii9<iflcTetttiantbaCGnzaq Wemge.jnn '

X00CK JDu cpcaCi inttt Boo JwaxtiaL oauQBail SQoenuBOdCJttioodHiDaau Ho CBBBB SIRIT wioi COB SOZDOCDICand itykutafcdlinpfeatioQ that the«i«attearto»peraonwidiintheia]encywfaohBi

fwitt QatEPAfciwiBiafnlrtinnqdMSf tfaaa. M>^

We have no cuunuBncft m jcajjooK EPA^ bftadqiitttHi cc tfacir ahflfly la fgovidg m widi the type and qaalityof agytoe BBfloed. 2hfr*&tet2fi1u$

crepcttti«a«»ngfn

2Du (OB CfloCtnflGOCCB. flr IV fi AflBDB C OCBkOO* IB &9B fliCOOOBl fttf tflO C3iflBOfi HdaBIlttBCabOtt CUB sfl aOBBDatEPAi

Siaoert r,

we cjtjpBot you 10 tate tiu*

aR319609.

APPENDIX B

AR3I96IO

13:19 KAA 202 224 4254

Suited StatesWASHINGTON, DC 20510

June 25, 1996

The Honorable Carol M. BrownerAdministrator " .Environmental Protection Agency401 M Street, S.W.Washington, DC 20460

Dear Administrator Browner:

Recently, we met with residents and local officials from the Lock Haven, Pennsylvaniaarea who continue to be concerned with your agency's plans regarding the Drake ChemicalSuperfund site. • \

As you are aware, there has been much, controversy associated with the decision by theEnvironmental Protection Agency to utilize an incinerator as the primary means of destroyingcontaminated waste at this former industrial site. The use of an incinerator is currently beinglitigated by a local environmental group ("Arrest the Incineration Remediation"), which believesthat there will be substantial health hazards to the community if the contaminated soil is buntedbecause of the air pollutants that will be emitted into the valley containing the site. They haverecommended that your agency reopen the Record of Decision and consider other technologiesthat would not lead to increased air pollution in the region.

Given the controversy associated with the agency's cleanup plans for this Siq>erfiirid site,and the misgivings voiced by some local elected officials and other residents based on the choiceof a cleanup technology, we urge you to convene a public meeting as soon as possible mat would'be chaired by your agency's national ombudsman, Robert Martin. Our request for your nationalombudsman, rather than a regional ombudsman, is made because of the national implications ofa decision to incinerate. We would expect regional EPA officials to participate, including thosemost familiar with the Drake site, and would strongly encourage the Regional Administrator, Mr.McCabe, to atiendas welL

As always, we appreciate your prompt assistance on this matter.

Sincerely,

Rick Santorum

I

APPENDIX C

AR3196I2-

'-•Si 12:54 ® , S3002

.United States 3niateWASHINGTON, DC 20510-3802

October3,1996* *

The Honorable Carol M, BrownerAdministratorEnvironmental Protection Agency401 M Street, S.W.Washington, DC 20460

Dear Administrator Browner;

At the request of Senator Santorum and myselfc the Environmental Protection Agencyheld a public meeting regarding the Drake Chemical Superfund site in Lock Haven,Pennsylvania on September 19,1996. The meeting was chaired by your agency's nationalombudsman, Robert Martin. -

As you are aware, there has been much controversy associated with the decision by theEnvironmental Protection Agency to utilize an incinerator as the primary means of destroyingcontaminated waste at this former industrial site. I am advised that the incinerator is currentlyunder operation to conduct a test burn at the site. Many citizens and officials from Lock Havenbelieve that there will be substantial health hazards to the community if the contaminated soil isburned because of the air pollutants that will be emitted into the valley containing the site. Theyhave recommended that your agency reopen the Record of Decision and consider othertechnologies that would not lead to increased air pollution in the region.

1 have received many calls from citizens who attended the public meeting in Lock Havenon September 19. I would like to .receive a report fromMr.L Martin which would include histhoughts on the issues raised at the public meeting.

As always, I appreciate your prompt assistance on this matter.

Sincerely

,.„_INTELLIGENCEJUDICIARY

APPROPRIATIONS

Arien Specte

AR3I9613

APPENDIX D

3I96IU

United grates £tnatfWASHINGTON DC 2051WS02

February 14,1997

The Honorable Carol M. BrownerAdministratorEnvironmental Protection Agency401 M Street, SWWashington, DC 20460

Dear Administrator Browner

I am writing in strong support of the Ridge Administration's call fora suspension of incineratoroperations at the Drake Chemical Supcrfund site in Lock Ilaveu, Pennsylvania.

As you know from my previous correspondence with you, I have had substantial reservationsregarding die potential health Impact on Clinton County residents from the cleanup of th« Drake site.During my 1996 visit to Lock Haven and in my meeting in Washington with Clinton CountyCommissioner Dean Bottorf and members of a local citizens' group* 1 made clear my view that thecleanup must not exacerbate the health and environmental problems associated with the Drake site.

Just last month, I wrote you to convey Commissioner Bottorfs most recent concerns with theundoing Incineration process. His frequent reports of problems associated with the trial incinerationhave troubled me and it is not surprising tn me that Secretary Seif haa expressed similar concerns.

On June 25,1996, Senator SantoninL and I wrote you to request that you send your agency'sombudsman, Robert Martin, to Lock Haven for a public meeting. Mr. Martin heM a public meeting onSeptember 19,1996 to discuss ihc implications of the agency's decision to use an incinerator.According to my staff, Mr. Martin is in a position to issue an interim report of his findings as & followup to the meeting. After five months, the residents of Clinton County certainly have every right to *receive such a report and I tug* you to take all necessary actions to ensure that Mr. Martin releases aninterim report promptly.

As the Administration's highest ranking official1 on environmental matters, you know howimportant it'is to generate confidence in our government's ability to protect the health of our citizens.It is dear to me that many Penntylvanian* in Clinton County «ad neighboring areas fcave no faith inEPA's decision to allow incineration at the Drake site. Accordingly, I urge you to review this matterpersonally and to address their concerns.

Mybcst. ,

Sincerely,

AR3I96I5

APPENDIX E

RR3196I6

KOPPERS VS. AglNA • RAYMONI? C. StRECK • DECEMBER 15, 199357

I can remember.. 2 Q You indicated that at a certain point in^ time In the late '60'*, 1 believe, they started takingHi it, instead of burying it in the plant site, they5 started taking it off site; is that right?6 A Right.7 Q Do you know where they took it?8 A They used to take h to Snow Shoe up to the9 coal stripping s. Because Briggs •- in fact, he's10 deceased now. He was a truck driver and he would bring1 1 a load of coal in, and they would load up sludge and12 he'd haul it back out13 Q Is Mr. Briggs still around?14 A He's deceased.15 Q Did you ever hear or was it ever suggestedId that any of the owners of the Lock Haven plant bought a1 7 piece of property to dispose of waste product near the18 riverbank?19 A Down the other end of Piper by the runway.20 Q Are you aware of that?21 A Yeah. But it was buried in different places22 around here. *23 Q Where else was waste product buried around24 ' the » -25 A Where I know for a fact it was?

p~ 58w\ Q Yes,2 A Right where K-Mart is over here. That used3 to be Hoberman's Junkyard. Camekx Estate, and over in4 the hollow, over Lockport.5 Q When did they dispose of waste product at6 the K-Mart area?7 A That was when Hoberman's sold their8 junkyard. They used to have a pit in there, and they9 hauled some of the stuff over and filled the pit up.10 MR. WALKER: Objection. Move to strike.11 BY MR. ABDALLA:12 Q Do you know approximately when that was?13 A A year? No.14 Q Was it in the Ws. '70's?15 A Probably the later part of *60's.16 Q Do you know what they took over to that17 K-Mart?.18 A No, I don't. Afl I know it was sludge, and19 I think some of the iron or stuff that was taken out of20 some of the buildings was hauled there, too.21 MR. WALKER: Are we saying K-Mart?» THE WITNESS: Yeah, h used to be over at

Clinton Plaza. That used to be a junk area in there.BY MR. ABDALLA:

25 Q How about it the Camek* Estate area; do you

12345678910111213141516171819202122232425

12345678910111213141516171819202122232425

SCRUNCH™MARY HILLABRAND INC., (415) 788-5350 FAX (415)

59know what was taken out there?

A It was sludge. McCormick's then was aconstruction outfit here in town. la fact," theiroffices was right up there, right across from theCatholic church. And they used to haul stuff for theAmerican Aniline.

Q That was McConakk?A McCormick Construction.Q Do you know when they hauled sludge for Lock

Haven site?A As far as the year? I don't.Q How about approximately?A Jesus, I couldn't even give you a good guess

on that.Q ' And what about the Lockport area?A Lockport area, that was in the '60's, too.Q Late '60's, early .'60's?'A Early *60's and late '60's.Q Was that sludge as well mat was taken out

there?A Yet.Q Was there a period of time, as you

understand it, that all of the sludge that wasgenerated at the plant was disposed of on the LockHaven site?

60MR. WALKER: Objection.

BY MR. ABDALLA:Q You can answer.A Well, I knew mat sludge was being buried

there, but it was also hauled out because they wasrunning out of space, I guess, out here.

Q Was there a period of time when everything.as you understood it, was being disposed of right onthe landfill site - the Lock Haven site?

MR. WALKER: Objection.A What was that? I didn't quite -

BY MR- ABDALLA: "Q You indicated mat some of the stuff was

hauled outA RightQ I'm just trying fir! figure out, was there a

period of time where everything was disposed of, all ofthe sludge was disposed of on the Lock Haven site?

MR. WALKER: Objection.A Yes.

BY MR. ABDALLA:Q And how long was mat period of time?A From the *50's up until the *60's, when they

started hauling outQ So it would have been sometime in the '60's

•« >> A • <* ~ . - Pages 57 - 60788-0657 AR3196I7 15

APPENDIX F

AR319618

Or INCORPORATION

TO THB oerAaTMffwr or STATE* *3-1 - 18 OS *"COMMONWEALTH 0*>————---.-«- «J I ** •

In eomf&aac* wftli tj»* r*jairen«atj of t|» "BUSWESS CORPORATION LAW," (Act Ho. 10«>(•pprw*d Uw Mh d*r <rf K*r, A. D. IMS, th» mwUrilfiwd AUL of whom «r* efttou «f tb*3tatMt dcvfrfnr th4t th*r our b« ErworporuM M • bo«In«K« corporaOcn. do h«r*br wrtf/y:

J«t T*c »«n« <rf tb« c«pcr«ti<m f* „..,,. KItSDOSK. CHEKICAL CpRPOHATTQST.____..

2nd. Th* fccaUon and poet oflca *ddrew of its Initial rex tered office fa thi* Comraoiiw«*Jth It

____.lOl.__ .__, .:. _. J;*5*J. 3trq?,fe.,...— - r °c gav??________Clinton< "i T * fiii lii"'"" " fafcrl " ' ~' y> """

* -- i- ' S8ra. Th« ptupove or ptltpeoe* of &• cerpofvnon «r«i To manuf Actur«f btiy, sellv ;'rsfine, import, export and generally deal In and us« alkalies, acids,dye stuffs, solvents, chemicals, chemical products and by-productsthereof of every kind, nature and description, allied products andcompounds and also xiixjcxBS*jui**jqc apparatus and implements ftKbcfekfezgcXxiUtsr ±J&K7;uc±aii*;caxj atxjx33tXK*£jxxrin KtijDXkJ x>3txlnxtt« au3xs£JUC>aK«: toact a? commission merchants, brokers and distributors e-f the aboveitems and generally to do all things of « similar and cognate character.

4th. Th« term of it* <wti«t*m» (• perpetual*

5th. The *atheriwd e«p)UJ ntock of tlw corpor*t/on ta : lOO,.OOOj».pO

1,OOO shares having a. pa.r value of OlOO.OO each."

5th. Th* »moant of p«W in capital with whfch th« oorpormtJon irilT begin bo«in*w i< 310 000 .CO,In cash.

MA/-TI987

Ttnn of

A. T* Kllidc-nk 215 - Sth Street, too^c Haven, P*. 1 f—* (Klwyn 7i Blajichard 9 TT« Church Street, Loo It Haven, Pa<John R. Turner 103 Pearl Street, tock K&venr Pa. 1 year ^A. D. Patterson 421 vi, t:ain Strcec, Loclc Haven, Pa*Thonas X* Caprlo 119 pearl Street, Lock Haven, Pa.T. V- Weld 160 Suaquehanne Avenue, Lock Karen* Pa-Donald C, "/'eloh 437 W. Church Stroet, took Haven, pa.Morris Kl«»»na 108 7/. Church Streot, Loe« Haven, Pa. .- rf-« -n

:iob*rman • 72 £. Church 3treetf took Haven, Pa. 1 year Uii.

Sth. Th* name* tad addreMe* of tha b&cofporaton and the mnntxr «jd cU« of ahsrsa iub»eribed•eh AM:

Addits* No. and Clu« ofA.. T. Kiladonk • Same as above 5O - CoranonElvyn ff. Blaneaard n • . . 50 - ConsnonJohn H. Turner.. " " 50 * CocaaonA- D. Pattarsoa - * SO - CommonThor.aa n. Caprio . " . 50 - ConsonT. V. ™frld . ' 50 - CorrrtonDonald C. Welch v " -SO - Cormon;.;orrl3 Klc--ana tt SO - Connon

Habennitn ^ " SO - Contnon

(SEAL) jA***^_____(SEAL)

crtMt. (SEAL) __ ^ ~"' ...t. V r rrr?T._.. ___ (3BAL)

Commonw**ith of P ttnijirtaU. V/ ",

mvv , _ a notary Public

Elirjad,, Johp.n*., yur»?.?j .» .P'C. v;«lch, Worrla Klev/ans,

£• tnd f or tb* moaty

th«Pat^eraon,and S£

:. Caprio, T. V» 7/eld,Hoberaan*

who, tn da* fonti of law, adcaowledcvd th« foncoinc butrtnaoat to be th«ir act ud d«t<l for the per

ay h*a aad Mai of «0e« the 3?E£__ day of. jT*"««T*.___,» A. D.

. wrtWiSffl

in t

A. n.

•i^ HR319620

APPENDIX G

AR3I962

UNITED STATES ENVIRONMENTAL PROTECTION AGENCYREGION m

341 Chestnut BuildingPhiladelphia, Pennsylvania 19107

SUBJECT: Drum Sites in Lockhaven, DATE:Pennsylvania

FROM: John A. Am(ste£Ombudsman

TO: Robert J. Martin, DirectorOmbudsman Office

This letter is in response to your request that I investigate the circumstances relating tothree drum sites you observed on a property in Lockhaven, Pennsylvania during your visit to theDrake Chemical Superfund site in February 1997.

On Monday, March 3, 1997,1 contacted Mr. Dick Biddle, Regional Solid Waste Managerfor the Pennsylvania Department of Environmental Protection (PADEP), Williamsport Office,who is currently active at the Lockhaven property in question. Mr. Biddle informed me that theproperty is located near the Piper Aircraft facility owned by Monroe Farms, and that preliminaryassessments were performed at the drum sites in the 1980's by PADEP, and again in 1993/94 byEPA Region HL Based on the preliminary assessments both the State and EPA concluded thatno further action at the sites was necessary (i.e., that the sites posed no hazards to thecommunity).

Mr. Biddle indicated that the waste at the sites was generated by the American Color andChemical Company (AC&Q as a result of their efforts to clean up several large sludgeimpoundments owned by the company. The waste from the sludge impoundments was treatedand then deposited in the trenches on the subject property; the trenches were then covered withsoil. According to Mr, Biddie, the company undertook this effort with PADEP approval. At thetime, the company requested formal approval from PADEP to excavate the trenches and toutilize them for disposal of the sludge waste.

Mr, Biddle is currently working with a retired AC&C employee who worked at thecompany during the time of the trench disposal activity, and who is now acting as a consultant tothe company. The former employee claims that only sludge waste was put into the trenches atthat time and that he knows nothing about drums having been disposed of in the trenches.PADEP has no record of approving the disposal of drums into the trenches by AC&C.

Mr. Biddle's most recent visit to the property was made on Tuesday, February 25r 1997 -at which time, he walked the entire perimeter of the property and observed that there are nowonly the remnants of a total of nine drums at the three sites, and that they are empty. He

Celebrating 25 Years of Environmental Progress « D o i o c o oA n oIybe £

indicated that the drums had plastic liners, but that the liners are now corroded. He stated thatthe drums obviously contained chemicals at one time.

Mr, Biddle is scheduled to go back to the property within the next couple of weeks, to"flag" the areas where the drums are located and to run a magnetometer over the entire propertyto'see if any more drums can be located. Once he completes this activity, Mr. Biddle, inconjunction with AC&C personnel, will determine whether or not any further action is necessaryat the drum sites.

At this time, it is Mr. Biddle's determination that the site poses no hazards to thecommunity. He indicated that there are no homes located down-gradient of the drum sites andthat none of the homes in the area are in the groundwater flow pattern of the site. He furtherindicated that there are large fields between the drum sites and the homes, and between the drumsites and any water bodies in the area.

I hope that the above information is helpful to you in your efforts to assist the Lockhavencommunity. If there is any further assistance I can give you related to this situation, pleasecontact me by phone at (215) 566-3127. I will continue to monitor the situation at the drumsites. If I learn of any new information, I will provide.it to you.

cc: T. VoltaggioG. Crystail

AR3I9623

APPENDIX H

SR319621*

r*

C

COMMONWEALTH OF PENNSYLVANIA

SUBJECT: Drake Chemical CompanyLock Haven, Clinton County

File Thru: Richard L.BIttleRegional Solid Waste Manager

Thomas ShowmanSolid Waste SpecialistWilliamsport Regional Office

The investigation"at Drake Chemical Company 1s now being delayed awaitingthe outcome of EPA's criminal Investigation. Mr. Dion of Drake ChemicalCompany stated at the meeting February 17, 1981, that Cecos of New York wasgoing to survey and estimate cost of cleanup at the Drake plant site.Mr. Dion called this office on February 23, 1981 and said he would meetwith Cecos February 25, 1981 and work out a time schedule for the cleanup.I received a telephone message from EPA regarding an air photo of DrakeChemical in Lock Haven. This photo revealed a possible buried dump siteadjacent to the Drake property. A search of courthouse files reveals thatHoberman Salvage Company and United Real Estate Development Association ownthis property. Yener Soylemez of EPA was contacted, and this informationwas passed on to him. The investigation will continue as soon as EPA noti-fies me that their investigation Is complete. Mr. Dion supposedly willsupply us with a time schedule of cleanup. The FIT'S team, a contractorfrom EPA, will be conducting a groundwater sampling study at Drake. EPAhas instructed the FIT'S team to contact me prior to beginning theirsampling program to coordinate where best to sample.

TS/bls

cc: Bureau of Solid Waste ManagementMr. Bertovich-v

flR3!9625

143 Railroad17 Recreational21 Agricultural41 Deciduous Forest51 Streams and Waterways75 Barren Land (Disturbed)76 Transitional

HISTORICAL PHOTOGRAPHY1951

tittle activity is **-narent within Drake Chemical at this time* 'Most of the site remains unchanged from its natural conditions. Vege-tation along the dry stream bed and the small lagoon (or pond) on thenorthern end of the site appears to be growing vigorously, with nosigns of vegetation stress.

Two structures (A, B) appear at the extreme northern end of thesite. It is unclear whether the buildings are serviced by the railroadspur running directly behind them. The roads shown on the' overlay areth« primary access routes for vehicles in the Drake Chemical site.

The large dark area adjacent to the larger structure (A) providesthe only evidence that any sort of activity is occurring within the site,It appears as though this is an area in which the vegetation has beenstripped away. This is probably the result of vehicular activity.

•1959

Substantial changes have occurred at Drake Chemical since 1951.The most obvious of these changes involves the size of the structureson site. , The larger of the two buildings (A) has been expanded by theaddition of a new structure (Af) situated to the south of the originalbuilding-. Two tanks located beside the smaller 'building (B) have also

added to the site. .

Disturbed and possible fill areas also appear in 1959. The areaimmediately south of the structures shows signs of this type of activity.

Substantial changes in drainage are visible. A second crescent-shaped lagoon now occupies what used to be the dry stream bed- Thisnew lagoon may have been created by the dike or dam-like road bed forthe n«w rail line leading into American Color and Chemical. The lagoon,seen previously in 1951 imagery, remains relatively unchanged.

' Additional potential problems that should be noted are the tworefuse operations just north of Drake Chemical. One of these appearsto be an auto/junk operation containing large piles of unknown materials.The other unidentified operation (to the east) contains two large excava-tions that may indicate possible burial activity.

•1963

Extensive expansion (since 1959) of the lagoons found within DrakeChemical are clearly visible. Lagoons now cover nearly all of the siter

AR3I9626

th* e*e*ption of thAt portion Where "structures hove always beenated. OcAiftA^o «w«y frota the, site is quite evident, and easily

r*cv«blo southward to fcald Eagle Creek.

Tfco addition of a new structure (C) to the site is also evident.This building lies just south of structure A/A' and appears white inthe photograph. Its function is unknovm.

The area around structure C is noteworthy; the area appears dis-turbed in the imagery and may contain scattered debris.

The auto/junk operation and^ the neighboring facility still appearas potentially hazardous areas. "Large piles of materialsr excavationsand areas of dumping are visible,

1968

Substantial changes have occurred in and around the lagoons at theDrake chemicaj. site* Fill operations have.decreased the size of thelagoons seen in 1963. One of these fill areas (south of building C),appears to contain scattered barrels.' Some lagoons now show signs ofbeing divided into smaller,, individual units. A primitive network ofrevetments or dikes can be seen in the northern end of the site.

Numerous new additions and even, possible new structures have beenadded* Buildings A and C appear to have undergone additional expansion,A new structure .(D) appears to have been erected next to building B.

WuApproximately four or five horizontal tanks can be seen among the

Gildings. One concentration of tanks appears north of building B,beside the spur track right-of-way. It now appears, that the spar trackhas been removed or abandoned*

The salvage yard lying east of the auto/junk operation continuesto show evidence of burial or fill activity. I»axge amounts of refuse,debris and piled materials suggest substantial dumping of materials isoccurring. The auto/junk operation also appears to exhibit possibledrum concentrations. This cannot be verified due to photo-resolutionfactors. .

CURRENT PHOTOGRAPHY"———— -1980

Recent color infrared photography shows that large-scale changesin the physical appearance of Drake Chemical have occurred since 1968.The most striking change to the site is the disappearance of the largelagoons that once covered most of the area. These have been filled some-time in the past eleven years and replaced by two relatively small, rec-tangular lagoons (1 and 2). These lagoons are both .12 acres in size.A third, dry lagoon (.37 acres), appears just south of lagoons 1 and 2.This third lagoon roay be a relatively new feature to the site.

Another feature type indistinguishable on the historical black andimagery are the drum and/or barrel concentrations. Possible loca-*

ns of drums within Drake Chemical were noted-in 1968, but only thephotography provides information confirming their presence* targe

----- . . . . ...3 .... ... _' .. AR3I9627

APPENDIX I

SR3I9628

-From: CHARLIE KLEEMAN - - -.. . . ..To: ARMSTEAD-JOHNDate: 4/18/97 10:05amSubject: EPA/State Removal Coordination

John, _ ,

Per the request from Bob Martin, you asked for a citation concerning our protocol of allowing aState to take responsibility for an emergency response.

By way of background, you should understand that it has always been our operational policy togive notice to the appropriate state agency both for their information and to provide them the firstopportunity to carry out a response. This has been done respecting State program responsibilitiesand recognizing State's abilities to respond in a timely .fashion to incidents that are closer to theirown response personnel.

While there are several references made to roles of states in the NCP, the following are possiblythe most relevant to this question:

(1) NCP Subpart E at 300.415 (b)(2) lists the factors to be considered in determining whether aremoval action is appropriate. Factor (vii) is the availability of other appropriate federal or stateresponse mechanisms to respond to the release. These are the factors that must be addressed inany action memorandum, special bulletin, or endangerment determination before a removal actioncan be taken. It is clearly contemplated by the NCP that EPA should consider what the State'srole is and what the State's capabilities are in determining whether to authorize a federal response.

(2) NCP Subpart F at 300.500 et al says that EPA shall ensure meaningful and substantial stateinvolvement in hazardous substance response... shall provide an opportunity for stateparticipation in removal, etc... ' *

•Among the many things included under state participation is EPA giving states the opportunity tocarry out their own responses at sites. '

I am certain that a more exhaustive discussion could be generated, particularly with assistance-from the Office-of Regional Counsel, depending upon how deeply one needed to pursue thequestion. "

CC: . . CARNEY-DENNIS, DCWIC01.DCWCPO2.MARTIN-ROBERT

AR3I9629

e

APPENDIX J

SR3I9630

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY\ • REGION 111| 841 Chestnut Building

Philadelphia, Pennsylvania 19107-4431

August 7, 1996

TO: The Drake Chemical Superfund Site File

FROM: Frank Vavra, Remedial Project ManagerHazardous Waste Management Division (3HW22)

THRU; - Thomas C.- Voltaggio, DirectorHazardous Waste Management Division (3HWOQ)

-SUBJECT: RCRA Dioxin Listed 'Wastes Will Not Be TreatedIn The Drake Chemical Superfund Site Incinerator

INTRODUCTION ' . •

The Region has received comments from the public and theplaintiffs in the Federal court proceedings in Williamsport, PA ~r(Clinton County Commissioners; and Arrest the Incinerator - . fRemediation, Inc.. vs. United States Environmental ProtectionAgency et al. No. 4 : 96-CV-00181 (M.D. Pa. complaint filed 2/1/96) :-that the incinerator at the Drake Chemical Superfund Site { "DrakeSite" or "Site") must treat the orgahics in the waste feed to adestruction and removal efficiency (DRE) of 99.9999%. The Regionhad previously determined, in 1993, when it was developing thespecifications for the incinerator to be used to treat ,.approximately 200,000 cubic yards of soil at the Site, that RCRAdioxin listed wastes were not produced or disposed at the Siteand, therefore, 99.9999% DRE is not required. Because of thepublic comments and because of the public's interest in the issueof whether or not the Drake facility is a "dioxin site8, I wasassigned to investigate into the issue. Set forth below is ananalysis of the regulatory background of this issue/ the commentsreceived by the Agency on this issue, the responses to thecomments, and the results of this investigation. The conclusionof the investigation is that 99.9999% DRE is not required'.

REGULATORY BACKGROUND

CERCLA response actions; must comply with the substantativerequirements of the .Resource Conservation and Recovery Act of1976, as amended Lby .the Solid Waste Disposal Act Amendments of1980 and the Hazardous Waste Amendments of 1984 r 42 U.S.C. §§6901-6991i ("RCRA"} if the CERCLA -response action constitutestreatment, storage, transport, or disposal of a RCRA hazardouswaste. The incineration of the soils at the Drake Superfund Siteconstitutes a "treatment" of vthe soils. Hence, the "Drakeincinerator is subject to the relevant substantive provisions of

Celebrating 25 Years of Environmental Progress '

319631

UNITED STATES ENVIRONMENTAL PROTECTION AGENCYREGION III

841 Chestnut BuildingPhiladelphia, Pennsylvania 19107-4431

August 7, 1996

TO: The Drake Chemical Superfund Site File

FROM: Frank Vavra, Remedial Project ManagerHazardous Waste Management Division (3HW22)

THRU: Thomas C. Voltaggio, DirectorHazardous Waste Management Division (3HWOO)

SUBJECT: RCRA Dioxin Listed Wastes Will Not"Be TreatedIn The Drake Chemical Superfund Site Incinerator

INTRODUCTION

The Region has received comments from the public and theplaintiffs in the Federal court proceedings in Williamsport, PA r(Clinton County Commissioners; and Arrest the Incinerator . 'Remediation, Inc., vs. United States Environmental ProtectionAaencv et ml. No. 4:96-CV-00181 (M.D. Pa. complaint filed 2/1/96) '-that the incinerator at the Drake Chemical Superfund Site ("DrakeSite" or "Site") must treat the organics in the waste feed to adestruction and removal efficiency (DRE) of 99.9999%. The Regionhad previously determined, in 1993, when it was developing thespecifications for the incinerator to be used to treatapproximately 200,000 cubic yards of soil at the Site, that RCRAdioxin listed wastes were not produced or disposed at the Siteand, therefore, 99.9999% DRE is not required. Because of thepublic comments and because of the public's interest in the issueof whether or not the Drake facility is a "dioxin site", I wasassigned to investigate into the issue. Set forth below is ananalysis of the regulatory background of this issue, the commentsreceived by the Agency on this issue, the responses to thecomments, and the results of this investigation. The- conclusionof the investigation is that 99.9999% DRE is not required.

REGULATORY BACKGROUND

CERCLA response actions; must comply with the substantativerequirements of the Resource Conservation and Recovery Act of1976, as amended .by the Solid Waste Disposal Act Amendments of1980 and the Hazardous Waste Amendments of 1984, 42 U.S.C. §§6901-6991i ("RCRA") if the CERCLA response action constitutestreatment, storage, transport, or disposal of a RCRA hazardous •waste. The incineration of the soils at the Drake Superfund Site •constitutes a "treatment" of the soils. Hence, the Drakeincinerator is subject to the relevant substantive provisions of

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EPA's and Pennsylvania's RCRA incinerator regulations.

Generally, an incinerator burning hazardous waste must bedesigned, .constructed, and maintained so that, when operated inaccordance with the operating requirements, specified under 40C.F.R. §264.345, it will achieve a destruction and removalefficiency (DRE) of 99,99% for each principal organic hazardousconstituent (POHC) in its waste feed. 40 C.F.R. Section264.343(a)(1). An incinerator burning'certain RCRA "listed"wastes, however, must achieve, a DRE of 99.9999%. 40 C.F.R.Section 264.343 (a) (2) . These RCRA lis.ted wastes (listed at 40C.F;R. Section 261.31(a) which require the higher DRE are:

F020 - Wastes from production., manufacturing use, or as anintermediate in manufacturing of more complex chemicals oftrichlorophenol or tetrachlorophenol.

F021 - Wastes from production, manufacturing use, or as anintermediate in manufacturing of more complex chemicals ofpentachlorophenol.

F022 - Wastes from manufacturing use of tetra, penta, .or ;hexachlorobenzenes under alkaline conditions.

F023. - Wastes from contaminated equipment; used in the processthat generated F020.

F026 - Wastes from contaminated equipment used in the processthat produced F022.

F027 - Discarded unused formulations containing tri-, tetra-, orpentachlorophenol. Discarded 2,4,5-trichlorophenoxyacetic acidand 2,4/5-tricholorphenoxypropanoic acid ("Silvex") areconsidered F027 wastes. . '

The Preamble to the National Contingency Plan, 55 Fed-. Reg. 8666,8758 (March 8, 1990J and EPA guidance recommend that Superfundsite.managers use reasonable efforts to determine whether asubstance is a RCRA listed hazardous waste. Reasonable effortsinclude evaluating specific information about a waste's source,prior use, labels, manifests, facility business records orproduction processes used at the facility. Determining When LandDisposal Restrictions (i*DRs* Are Applicable to CERCLA ResponseActions, Office of Solid Waste and Emergency Response, Directive937.3-05FS. July 1989. .

The Region evaluated information from the EPA Drake Chemical sitefiles at the time that the bid specifications for the incineratorwere written, to determine whether or not RCRA dioxin listedwastes are to be treated at the Drake Site. Based on theinformation available to EPA at that time, the Agency determinedthat the above described RCRA dioxin listed wastes are not


AB3I9633

EPA's and Pennsylvania's RCRA incinerator regulations.

Generally, an incinerator burning hazardous waste.,must bedesigned, constructed, and maintained so that, when operated inaccordance with the operating requirements specified under 40C.F.R. §264.345, it will achieve a destruction and removalefficiency (DRE) of 99.99% for each principal organic hazardousconstituent (POHC) in its waste feed, 40 C.F.R. Section264.343(a)(1). An incinerator burning certain RCRA "listed"wastes, however, must achieve a DRE of 99.9999%. 40 C.F.R.Section 264.343(a)(2). These RCRA listed wastes (listed at 40C.F.R. Section 261.31(a) which require the higher DRE are:

F020 - Wastes from'product ion., manufacturing use, or as anintermediate in manufacturing of more complex chemicals oftrichlorophenol or tetrachlorophenol.

F021 - Wastes from production, manufacturing use, or as anintermediate in manufacturing of more complex chemicals of 'pentachlorophenol.

F022 - Wastes from manufacturing use of tetra, penta,-orhexachlorobenzenes under alkaline conditions.

F023. - Wastes from contaminated equipment used in the processthat generated F020.

F026 - Wastes from contaminated equipment used in the processthat produced F022.

F027 - Discarded unused formulations containing tri-, tetra-, orpentachlorophenol. piscarded 2,4,5-trichlorophenoxyacetic acidand 2,4,5-tricholorphenoxypropanoic acid {"Siivex") areconsidered F027 wastes, .

The Preamble-to the National Contingency Plan, 55 Fed, Reg. 8666,8758 (March 8, 1990) and EPA guidance recommend that Superfundsite managers use reasonable efforts to determine whether asubstance is' a RCRA listed hazardous waste* Reasonable effortsinclude evaluating specific information about a waste's source,prior use,.labels, manifests, facility business records orproduction processes used at the facility. Determining when LandDisposal Restrictions (LDRs) Are Applicable to CERCLA ResponseActions, Office of Solid Waste.and Emergency Response. Directive937,3-QSFS, July 1989.

The Region evaluated information from the EPA Drake Chemical sitefiles at the time that the bid specifications for the incineratorwere written, to determine whether or not RCRA'dioxin listedwastes are to be treated at the Drake Site. Based on theinformation available to EPA at that time, the Agency determinedthat the above described RCRA dioxin listed wastes are not


present at Drake and will not be treated in the incinerator.

REVISITING THE ISSUE OF WHETHER RCRA LISTED HAZARDOUS WASTES WILI/BE TREATED IN THE DRAKE INCINERATOR

After "the March, 1996 injunction hearing in Federal court, I wasassigned by the Region's Hazardous. Waste Management Division toinvestigate whether or not the Agency's._prior determination wascorrect (particularly with respect to allegations raised by theplaintiffs and the public). I reviewed.Drake Chemical Companyrecords, the Drake Chemical Company RCRA Part A Permit, and EPA'sDrake Chemical Site files to determine if any of the RCRA dioxinlisted wastes cited by the plaintiffs and -the public are presenta t t h e Drake Site. . • _ . ' , • *

The Drake Chemical Company records that I reviewed were therecords from the Drake Chemical Company that had been in thecustody of litigants in a state toxic tort litigation, in Clinton,County, .PA. These documents include product lists, purchaseorders, product and shipping records, and production logs. They .are currently located in a storage facility in Sharon Hill, PA.These documents were produced to the plaintiffs in the Federallawsuit. I also interviewed EPA's civil investigator who wasfamiliar with the Drake Chemical re'cords due to his involvementwith the cost recovery case for the Site. Relevant .documentsthat are not already part ,of the Administrative Record areattached to this memo.

As a result of this investigation into the Drake Chemical Companyrecords, it is my -conclusion that EPA has correctly determinedthat no RCRA dioxin listed wastes will be treated in theincinerator.' .

RESPONSES T O SPECIFIC COMMENTS . . . . . . . . ; .

Plaintiffs in the federal lawsuit and other commentors havestated that there are certain RCRA listed hazardous wastesrequiring a DRE of 99.9999% at the Drake Site. Set forth beloware the comments received concerning this issue and ray responses:

1) Site records indicate that, trichlorophenol was manufacturedat the Drake Site. -

Response: I reviewed Drake Chemical Company business records andrecords pertaining to facility processes. No records were foundsuggesting production, manufacturing use, or disposal of .trichlorophenol at the Drake Site. Additionally, Drake ChemicalCompany documents which list the products produced at Drake did


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3

present at Drake and will not be treated in the incinerator.

REVISITING THE ISSUE OF WHETHER RCRA LISTED HAZARDOUS WASTES WILLBE TREATED IN THE DRAKE INCINERATOR

After the March, 1996 injunction hearing,in Federal court, I wasassigned by the Region's Hazardous Waste Management Division toinvestigate whether or not the Agency's prior determination wascorrect (particularly with respect to allegations raised by theplaintiffs and the public). I reviewed Drake Chemical Companyrecords, the Drake Chemical Company RCRA Part A Permit, and EPA'sDrake Chemical Site files to determine if any of the RCRA dioxinlisted wastes cited by the plaintiffs and the public are presentat the Drake -Site.

The Drake Chemical Company records that I reviewed were therecords from the Drake Chemical Company that had been in thecustody of litigants in a state toxic tort litigation in Clinton,County, PA, These documents include product lists, purchaseorderst product and shipping records, and production logs. Theyare currently located in a storage facility in Sharon Hill, PA.These documents were produced to the plaintiffs in the Federallawsuit. I also interviewed EPA's civil investigator who wasfamiliar with the Drake Chemical records due to his involvementwith the cost recovery case for the Site. Relevant-.documentsthat are not already part of the Administrative Record areattached to this memo.

As a result of this investigation into the Drake Chemical Companyrecords, it is my conclusion that EPA has correctly determinedthat no RCRA dioxin listed wastes will be treated in theincinerator.

RESPONSES TO SPECIFIC COMMENTS

Plaintiffs in the federal lawsuit and other commentors havestated that there are certain RCRA listed hazardous wastesrequiring a DRE of 99.9999% at the Drake Site. Set forth beloware the comments received concerning, this issue and ray responses;

1) Site records indicate that trichlorophenol was manufacturedat the Drake Site. . - - . -

Response: I reviewed Drake Chemical Company business records andrecords pertaining to facility processes. No records were foundsuggesting production, manufacturing use, or disposal oftrichlorophenol at the Drake Site. Additionally, Drake ChemicalCompany documents which list the products produced at Drake did


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not show trichlorophenol as a product. Some of these documentswere to promote the company's product line. Therefore, it wouldhave been in. the company^s interest to. identify all of itsproducts to its customers and potential customers. Also noprocess records or invoices were found which indicated productionor purchasing of.amounts of trichlorophenol for manufacturingpurposes at the Drake -facility.

Production of trichlorophenol would probably not have beeneconomical for a specialty chemical producer such as Drake.Generally, a commodity chemical such as trichlorophenol would beproduced in bulk_ at a large plant dedicated to the production ofchlorophenols for such uses aa woodtreating and antiseptics.

Therefore, as a result of my investigation I believe it is ', 'reasonable to determine that trichlorophenol was not produced,used in manufacturing or disposed of at the Drake Site.

2) 2,4-dichlorophenoxyacetic acid (2,4-D) and 2,4,5-trichlorophenoxyacetic acid (2,4,5-T) herbicides weremanufactured at the site. . ^ ,

Response: This information, if correct, could give rise to a Ifinding that an F020 or F027 listed waste is present at the Site. JThis issue was raised at the preliminary' injunction hearing andconcerns the chemical name of "Fenac", which was an herbicideproduced at the Drake Site. Fenac is a mixture of structuralispmers (same chemical>formula - different chemical structure).About 70% of the .isomers are the active ingredient in Fenac whichis 2,3,6-trichlorophenylacetic acid. Other isomers such as 2,4,5-trichlorophenylacetic acid are also present.

In the stenographic transcript of the preliminary injunctionhearing, plaintiffs' witness, Mr. Furl, a former employee at the.Drake Chemical Company, testified that the herbicide, Fenac,which was produced at the facility, is 2,4,5- , ' .trichlorophenolacetic acid. Mr." Furl was incorrect. Fenac is2.3,6-trichlorophenvlacetic acid. Fenac also contains otherisomers such as 2.4, S-trichlorophenvlacetic acid. However, it isnot 2,4.5-trichlorophenolacetic acid. What is important to thisissue is that. Fenac belongs to the "phenyl" compounds, and assuch, it is not associated with the "phenol" F027 listed wastes,or the generation of dioxin.

Fenac is an herbicide which is chemically classified as asubstituted benzene or phenyl compound! The terms phenol andphenyl- are similar, but there is an important; difference betweenthem in terms of the listed w ste issue. What the word, phenylmeans in terms of"its chemical structure is that there arechemical constituents attached to a benzene ring. However, in.the case of Fenac, none of the chemical constituents directlyattached to the benzene ring is an oxygen atom. Therefore,


•-•"•'AR3I9637

not show trichlorophenol as a product. Some of these documentswere to promote the company's-product line. Therefore, 'it wouldhave been in the company's interest to identify all of itsproducts to its customers and potential customers. Also noprocess records or invoices were found which indicated productionor purchasing of amounts of trichlorophenol for manufacturingpurposes at the Drake facility.

Production of trichlorophenol would probably not have beeneconomical for a specialty chemical producer such as Drake.Generally, a commodity chemical such as trichlorophenol would beproduced in bulk at a large plant dedicated to the production ofchlorophenols for such uses as woodtreating and antiseptics.

Therefore, as a result of my investigation I believe it isreasonable to determine that trichlorophenol was not produced,used .in manufacturing or disposed of at the Drake Site.

2} 2,4-dichlorophenoxyacetic acid (2,4-D) and 2,4,5-trichlorophenoxyacetic acid (2,4,5-T) herbicides weremanufactured at .the site.- >

Response: This information, if correct, could give rise to a [ •finding that an F020 or F027 listed waste is present at the Site. •This issue was raised at the preliminary injunction hearing andconcerns the chemical name of ,u Fenac*, which was an herbicideproduced at the Drake Site. Fenac is a mixture of structuralisomers (same chemical formula - different chemical structure).About 70% of the isomers are the active ingredient in Fenac whichis 2,3,6-trichlorophenyl'acetic acid. Other isomers such as 2,4,5-trichlorophenylacetic acid are also present.

In the stenographic transcript of the preliminary injunctionhearing, plaintiffs' witness, Mr. Furl, a former employee at theDrake Chemical Company, testified that the herbicide, Fenac,which was produced at the facility, . is 2,4,5-trichlorophenolacetic acid. Mr. Furl was incorrect. Fenac is2,3 > 6-trichlorophenvlacetic acid. Fenac also contains otherisomers such, as 2.4.S-trichlorophenvlacetic acid/However, it isnot 2,4.5-trichlorophenQlaceEic acid. What is important to thisissue is that- Fenac belongs to the "phenyl" compounds, and assuch, it is not associated with the "phenol" F027 listed wastes,or the generation of dioxin.

Fenac is an herbicide which is chemically classified as asubstituted benzene or phenyl compound- The terms phenol andphenyl* are similar, but there is an important difference betweenthem in terms of the listed wa,ste issue. • What the word.phenylmeans in terms of its chemical structure is that there arechemical constituents attached to a benzene ring. However, inthe case of Fenac, none of the chemical constituents directlyattached to the benzene ring is an oxygen atom. Therefore,


BR3I9638

dioxin formation is not normally associated with this class ofchemicals. Fenac is listed in .a 1980 EPA document, "Dioxin," asa pesticide that is not directly associated with dioxinformation, but might form dioxin under irregular operatingconditions. Dioxin formation from Fenac is speculative, andneither Fenac nor its constituents are among the RCRA listedwastes for which the 6-9s__DRE is required. In addition, in lightof .the pervasive presence of Fenac in soil samples across theSite, and the •- fact that dioxin: _sampling showed no dioxin in thesoils (see attached report from Roy F. Weston, 6/25/96}, itappears unlikely that the production of Fenac at the Drakefacility led to the formation of^appreciable amounts of dioxin,if any, . . . . : . . . : .

The chlorinated phenols in the F020 and F027 listings contain thephenol functional group. This is expressed in chemical shorthandas (-OH) . A "phenol has an oxygen atom directly attached to abenzene ring, and a hydrogen atom is attached to the oxygen atomas [ (benzene)-OH].

The F027 listing also incl.vies compounds derived from-the'abovementioned chlorinated phenols. The compounds typically in thisgroup are known as phenoxy compounds [ (benzene)-OX] . A phenoxycompound is similar to a phenol compound except that the hydrogenatom in the phenol functional group has been replaced by someother group of atoms. Examples of phenoxy compounds are 2,4-dichloro-phenoxyacetic acid (2,4-D) and 2,4,5-trichlorophenoxyacetic acid (2,4,5-T), which are associated withthe formation of~dioxin.^ — - - - -- .

i .No Drake Chemical Company process records were found suggestingproduction of 2,4-dichlorophenoxyacetic acid or 2,4,5--,trichlorophenoxyacetic acid at the Drake Site. Additionally,Drake Chemical documents which list the products produced atDrake do not show either of these herbicides as. a product. Alsq,no invoices were found showing significant amounts of. theseherbicides at the facility. Therefore, it is unlikely thatsignificant amounts of these herbicides were disposed of at thesite. Some small amounts of 2,4-D were shown_in Drake ChemicalCompany Records? however-, 2,4-D is not a listed waste and wasfound in quantities too small to suggest its production. Noamounts of 2,4,5-T were .found in the Company records. Inaddition, while some trace quantities of 2,4-D and 2,4,5-T weredetected in some of the contents of drums and tanks removed foroff-site disposal, those quantities were too small to suggestwastes from production or manufacturing-use of these chemicals.

3) 2-4-5-trichlorphenoxypropanoic acid ("Silvex"} . was found insome samples of waste in drums.

Response; Silvex, an herbicide,.was found at low concentrationsr •


AR3I9639

dioxin formation is not normally associated with this class ofchemicals. Fenac is listed in a 1930 EPA document, "Dioxin," asa pesticide that is not directly associated with dioxinformation, but might form dioxin under irregular operatingconditions. Dioxin formation from Fenac is speculative, andneither Fenac nor its constituents are among the RCRA listedwastes for which the 6-9s DRE is required. In addition, in lightof the pervasive presence of Fenac in soil samples across theSite, and the fact that dioxin sampling showed no dioxin in thesoils (see attached report from Roy F. Weston, 6/25/96), itappears unlikely that the production of Fenac at the Drakefacility led to the formation of appreciable amounts.of dioxin,if any.

The chlorinated phenols in the F020 and F027 listings contain thephenol functional group. This is expressed in chemical shorthandas (-OH) . A phenol has an oxygen atom directly attached to abenzene ring, and a hydrogen atom is attached to the oxygen atomas [ (benzene)-OH] . ' •

The F027 listing also inclvies compounds derived from the abovementioned chlorinated phenols. The compounds typically in this :group are known as phenoxy compounds [ (benzene)-OX]. A phenoxy ;compound is similar to a phenol compound except that the hydrogen -atom in the phenol functional group has been replaced by someother group of atoms. Examples of phenoxy compounds are 2,4-dichloro-phenoxyacetic acid (2,4-D) and 2,4,5-trichlorophenoxyacetic acid (2,4,5-T), which are associated withthe formation of dioxin. ' ,

No Drake Chemical Company process records were found suggestingproduction of 2,4-dichlorophenoxyacetic acid or 2,4,5--trichlorophenoxyacetic acid at the Drake Site. Additionally,Drake Chemical documents which list the products produced atDrake do not show either of these herbicides as a product. Also,no invoices were found showing significant amounts of. theseherbicides at the facility- Therefore, it is unlikely thatsignificant amounts of these herbicides were disposed of at thesite. Some small amounts of 2,4-D were shown in Drake ChemicalCompany Records? however-, 2,4-D is not a listed waste and wasfound in 'quantities too small -to suggest its production. Noamounts of 2,4,5-T were found in the Company records. Inaddition, while some trace quantities of 2,4-D and 2,4,5-T weredetected in some of the contents of drums and tanks removed foroff-site disposal, those quantities were too small to suggestwastes from production or manufacturing use of these chemicals.

3) 2-4-5-trichlorphenoxypropanoic acid ("Silvex") was found insome samples of waste in drums.

Response: Silvex, an herbicide, was found at low concentrations


' ~ ~" AR3I96"1*0

in.some drums of, waste at the site. These buried drums wereexcavated in 19.95 in preparation for the incinerator'sconstruction and removed from the Site. " A RCRA testing scanshowed some low levels of this Silvex in a few drum samples.The presence of Silvex in soils to be treated in the incineratorcould have implicated the FQ20 or F027 listings.

EPA conducted a .review, of Drake Chemical Company documents to-determine whether or not the Silvex could have originated from aDrake manufacturing process. No process records were foundsuggesting production or manufacturing use of Silvex at the DrakeSite. .Additionally, Drake Chemical Company documents which listthe products produced at Drake did not show this herbicide as aproduct. Also, no invoices were found showing any production,purchase, or shipment of Silvex. Silvex was found only in alimited number of drum samples at low levels and was not detectedin any soil samples. Therefore, other than Silvex connected tothe drums, it is unlikely that, this herbicide was disposed of atthe site. In any event, the wastes from the excavated drums-havebeen removed from the Site and will not be treated in theincinerator. , . . . - _ . - - - ^

4) Agent Orange was secretly manufactured at Drake for the IJ.S.military's use in Vietnam.

Response: Agent Orange was a mixture of 50% each of 2,4-D and2,4,5-T. As stated in the response to 2) above, a review of theDrake Chemical Company records showed no 2,4-D or 2,4,5-Tproduction, manufacturing use., or disposal at the facility.During EPA's search for potentially responsible parties at theDrake Site, no evidence of a contract between the military andthe Drake Chemical Company was found. At the time of the Vietnamwar;, there was no reason for "secret" manufacturing of AgentOrange, 2,4-D or 2,4,5-T- • The chemicals in Agent Orange wereused domestically as herbicides as well as for defoliation in .Vietnam. . -

It appears that this .comment confuses 2,4-D and 2,4,5-T as •2 . 4-dichlorophenoxvacetic acid and 2,4/5-trichlorophenoxvaceticacid, with 2,4-D and .2,4,5-T as 2,4-dichlorophenylacetic acid and2.4,5-trichlorophenylacetic acid. The chemical abbreviationshave been used to represent either set of chemicals. Whilewastes from the production of 2.4.5-trichlorophenoxvacetic aciddo produce listed wastes which are subject, to RCRA's 99.9999% DRErequirement, EPA has found no evidence that this chemical wasproduced at the site. 2.4-dichloropfaenvlacetic acid and.2,4,5-trichlorophenvlacetic acid do not produce any of the listedwastes subject to the 99.9999% DRE requirement. Confusion mayalso have arisen from the production of impure batches of Fenac,which reportedly were orange in color, and which therefore couldhave been mistaken by a lay person for Agent Orange.


in some drums of waste at the site. These buried drums wereexcavated in 1995 in preparation for the incinerator'sconstruction and removed from the Site. A. RCRA testing scanshowed some low levels of this Silvex in a few drum samples.The presence of Silvex in soils to be treated in the incineratorcould have implicated the F020 or F027 listings.

EPA conducted a review of Drake Chemical Company documents todetermine whether or not the Silvex could have originated from a .Drake manufacturing process. . No process records were foundsuggesting production or manufacturing Xise of Silvex at the DrakeSite. Additionally, Drake Chemical Company documents which listthe products produced a't Drake did not show this herbicide as aproduct. Also, no invoices were found showing any production,purchase, or shipment of Silvex. Silvex was found only in alimited number of drum samples at low levels and was not detectedin any soil samples. Therefore, other than Silvex connected tothe drums, it is unlikely that this herbicide was disposed of atthe site. In any event, the wastes from the excavated drums havebeen removed from the Site and will not be treated in theincinerator. , '

4) Agent Orange was secretly manufactured at Drake for the U.S.military's use in Vietnam.

Response: Agent Orange was a mixture of 50% each of 2,4-D and2,4,5^T. As stated in the response to 2) above, a review of theDrake Chemical Company records showed no 2,4-D or 2,4,5-T-production, manufacturing use, or disposal at the facility.During EPA's search for potentially responsible parties at theDrake Site, no evidence of a contract between the military andthe Drake Chemical Company was found. At the time of the Vietnamwar, there was no reason for "secret" manufacturing of AgentOrange, 2,4-D or 2,4,5-T. ' The chemicals in Agent Orange wereused domestically as herbicides as well as for defoliation in .Vietnam. . - - •

It appears that this comment confuses 2,4-D and 2,4,5-T as2. 4-dichlorophenoxvacetic acid and 2,4,5-trichloroohenoxvaceticacid, with 2,4-D and 2,4,5-T as 2,4-dichlorophenvlacetic acid and2,4,5-trichlorophenylacetic acid. The chemical abbreviationshave been used to represent either set of chemicals. Whilewastes from the production of 2.4. S-trichlorophenoxvacetic aciddo produce listed wastes which are subject to RCRA's 99.9999% DRErequirement, EPA has found no evidence that this chemical wasproduced at the site. 2,4-dichloropherivlacetic acid and 2,4,5-trichlorophenvlacetic acid do not produce any of the listedwastes subject to the 99.9999% DRE requirement. Confusion mayalso have arisen from the production of impure batches of Fenac,which reportedly were orange in color, and which therefore couldhave been mistaken by a lay person for Agent Orange.


"'AR3I96U2

5) Pentachlorophenol (PCP) was found at higher levels than.Fenacsuggesting that pentachlorophenol must have been manufactured ordisposed.of at the Site.. . -

Response: Wastes from pentachlorophenol are included in theF021 and F027 waste listings, EPA reviewed the Drake ChemicalCompany's process records and found no indication thatpentachlorophenol was produced, used in manufacturing,, ordisposed of at the Site. Out of 78 soil samples, only 3contained detectable levels of pentachlorophenol. Two of thesamples were, near the railroad tracks. One of the samples wastaken near the center of the site in a former lagoon area. Thesesamples did contain very high levels of pentachlorophenol. Thesevery high detections raised the statistical average of PCP soilconcentration above that of Fenac. EPA believes that these threesample concentrations probably were due to the presence of woodat the Site that had been treated with PCP as a wood preserver.This wood preservative may have been from railroad ties or flood 'debris disposed at the site after Hurricane Agnes affected thearea in 1972. The infrequent occurrences of PCP in soil samplescorroborates, rather than contradicts, a finding based onfacility records that PCP was not produced, used inmanufacturing, or disposed of at the Site. For example, in •contrast to the 3' detects of PCP, Fenac was found throughout theSite. Of the 43 samples taken in 1987, about 37 detects of Fenac.were found, as would be expected for a product that wasmanufactured at the Site,

6) Building samples were taken that showed high levels ofdioxins. . . ' •" . '

Response: Samples taken from residues within a building at theDrake Site (See the 2/13/84 memo from Hagel to the Drake file)were analyzed by a screening method for dioxin.- This analysisreported the potential presence of high levels of dioxins in the.building. The buildings and materials within them have beenremoved from the Site and will not be treated in the incinerator.Subsequently, the Region sent those samples for re-analysis, andsome additional samples from the lagoon areas for analysis by anappropriate, approved analytical method for dioxin detection.£PA sampled residues in the building tanks, lagoon water, lagoonrun-offs and' some composite soils samples in the lagoon areas ofthe Site. EPA analyzed for the most toxic dioxin isoraer 2,3,7,8-tetrachlorodibenzo-p-dioxin (dioxin).' All samples analyzed usingan approved analytical .method for dioxin were reported as non-detect for dioxin. The goal was to check those areas on the Sitethat should have contained high levels of dioxin if dioxinproducing products had been manufactured at the Site. Since thescreening studies of the process area and lagoon area did notdetect dioxin, no further dioxin sampling was performed.

Dioxins are ubiquitous contaminants throughout the environment at


31961*3

5) Pentachlorophenol (PCP) was found at higher levels than Fenacsuggesting that pentachlorophenol must have been manufactured ordisposed of at the Site.

Response: Wastes from pentachlorophenol are included in theF021 and F027 waste listings. EPA reviewed the Drake ChemicalCompany's process records and found no indication thatpentachlorophenol was produced, used in manufacturing, ordisposed of at the Site. Out of 78 soil samples, only 3contained detectable levels of pentachlorophenol. Two of the .samples were near the railroad tracks. One of the samples wastaken near the center of the site in a former lagoon area. Thesesamples did contain very high levels of pentachlorophenol. Thesevery high detections raised the statistical average of PCP soilconcentration above that of Fenac. EPA believes that these threesample concentrations probably were due to the presence of woodat the Site that had been treated with PCP as a wood preserver.This wood preservative may have been from railroad ties or flood 'debris disposed at the site after Hurricane Agnes affected thearea in 1972. The infrequent occurrences of PCP in soil samplescorroborates, rather than contradicts, a finding based on'facility records that PCP was not produced, used inmanufacturing, or disposed of at the Site. For example, incontrast to the 3 detects of PCP, Fenac was found throughout theSite. Of the 43 samples taken in 1987, about 37 detects of Fenacwere found, as would be expected for a product that wasmanufactured at the Site. • ,

6) Building samples were taken that showed high levels ofdioxins. '

Response: Samples taken from residues within a building, at theDrake Site (See the 2/13/84 memo from Hagel to the Drake file) .were analyzed by a screening method for dioxin. This analysisreported the potential presence of high levels of dioxins in the,building. The buildings and materials within them have beenremoved from the Site and will not be treated in the incinerator.Subsequently, the Region sent those- samples for re-analysis, andsome additional samples from the lagoon areas for analysis by anappropriate, approved analytical method for dioxin detection,EPA sampled residues in the building tanks, lagoon water, lagoonrun-offs and1 some composite soils samples in the lagoon areas ofthe Site. EPA analyzed for the most toxic dioxin isomer 2,3,7,8-tetrachlorodibenzo-p-dioxin (dioxin). All samples analyzed usingan approved analytical method for dioxin were reported as non-detect for dioxin. The goal was to check those areas on the Sitethat should have contained high levels of dioxin if dioxinproducing products had been manufactured at the Site. Since thescreening studies of the process area and lagoon area did notdetect dioxin, no further dioxin sampling was performed.

Dioxins are ubiquitous contaminants throughout the environment at


8

very low levels. Generally dioxin sampling at Superfund sites isconducted only when dioxins are expected or .known to-be presentas a -significant site contaminant. In response to informationsuggesting that Drake might be such a site, the Region made areasonable inquiry and determined that the Drake Site was not a"dioxin 'site". The fact that the.Region did not consider theDrake site to be a "dioxin site" is documented in the memorandumto the file from Dr. Walter Lee, the _EPA employee who wasreviewing sites in the Region for possible inclusion in EPA'slist of "dioxin sites".

7) . Dioxin is a chemical constituent that is regulated as.a"hazardous waste" under RCRA by use of the ToxicityCharacteristic (TC) test.

Response: Toxicity Characteristic hazardous wastes are wastesthat are designated as hazardous based on the concentration of ahazardous constituent'in the leachate obtained from the "ToxicityCharacteristic Leaching Procedure" specified in the EPA's RCRAregulations. (See 40, C.F.R. Section 261.24) (The TC test isMethod 1311, It is found in "Test Methods for Evaluating SolidWaste,", EPA publication SW-846.) EPA has not set a regulatorylevel for dioxin in leachate from this procedure. Consequently,the Agency does not designate any wastes as characteristichazardous wastes based on dioxin.


• -.- HR3I96U-5

8

very low levels. Generally dioxin sampling at Superfund sites isconducted only when dioxins are expected or known to be presentas a significant site contaminant. In response to informationsuggesting that Drake might be such a site, the Region made areasonable inquiry and determined that the Drake Site.was not a"dioxin site". The fact that the Region did not consider theDrake site to be a "dioxin site" is documented in the memorandumto the file from Dr. Walter Lee, the SPA employee who wasreviewing sites in the Region for possible inclusion in EPA'slist of "dioxin sites".

7) . Dioxin is a chemical constituent that is regulated as a"hazardous waste" under RCRA by use of the ToxicityCharacteristic (TC) test.

Response: Toxicity Characteristic hazardous wastes are wastesthat are designated as hazardous based on the concentration o£ ahazardous constituent in the leachate obtained from the "ToxicityCharacteristic Leaching Procedure* specified in the EPA's RCRAregulations. (See 40 C.F.R. Section 261.24) (The TC test isMethod 1311. It is found in "Test Methods for Evaluating SolidWaste," EPA-publication SW-846.) EPA has not set a regulatorylevel for dioxin in leachate from this procedure. Consequently,the Agency does not designate any wastes as characteristic ;hazardous wastes based on dioxin.


~' RR3196U6

APPENDIX B

flR3!96l»7

,SfeUNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C. 20460

y

August 8, 1997OFFICE OF

SOLID WASTH AND EMERGENCYRESPONSE

MEMORANDUM

SUBJECT: Draft Final Report on the Review of the Drake ChemicalSuperfund Site

FROM: Robert J. MartinNational Superfund Ombudsman


Attached is the Draft Final Report on the review of theDrake Chemical Superfund site. This report includes and isresponsive to comments offered by EPA Region III and the Officeof General Counsel and a Review Memorandum offered by the EPAEnvironmental Response Team.

The review of the site issues has comprised approximatelyone year of extensive time and effort. Besides gathering andanalyzing "documents and information from the Region and citizens,I also conducted a site visit and a public meeting.

*The Draft Final Report invites extensive comments during

the next -60 days in writing.

I will issue a Final Report, based on the foregoing infor-mation developed, 60 days after the end of the comment period.

cc: Michael ShaprioCliff Rothenstein

RR3196U8R*cycI«d/H»cyctabU • Prtited with Vegetable OS Based Inks on 100% Recycled Paper (40% Postconsumer)

DRAFT FINAL REPORT

ON THE


OFFICE OF THE OMBUDSMANOFFICE OF SOLID WASTE AND EMERGENCY RESPONSE

U. S. ENVIRONMENTAL PROTECTION AGENCY

AR3.I9649

DRAFT FINAL REPORT

ON THE


TABLE OF CONTENTS

PAGE NO.

I. SITE HISTORY ................ 1

II. REGIONAL INVOLVEMENT ............ 1

III- INTERVENING PETITIONS ............ 2

IV. AUTHORITY AND PROCEDURE .......... 3

V. REMAND OF INTERIM REPORT . ......... 4

VI. SIGNIFICANT ISSUES AND ACTIONS TAKEN .... 6

VII. CONCLUSION ................. 22

VIII. APPENDICES ...........;..... 23

AR3I9650

I. SITE HISTORY

The Drake Chemical site is located at 180 Myrtle Street in .LockHaven, PA- The site is located in an industrial area of Lock Havenbounded by Conrail, American Color and Chemical and Route 120. Thesite was a chemical manufacturing facility which produced dye inter-mediates and pesticides from 1951 to 1982. During the manufacturingoperations the site and groundwater at the site were contaminatedwith many organic compounds including Beta-naphthylamine and Fenac,

II. REGIONAL INVOLVEMENT

EPA Region ITI has undertaken, over the course of the past 15years, many significant response-actions to address the contaminationat the Drake Chemical site. Initially, the Region used emergencyremoval authority pursuant to the Superfund law to remove surfacedrums, sludge, and liquids contained in process and storage tanks•and fenced the Drake site in 1982. t , ;

Subsequently, EPA initiated a Remedial Investigation FeasibilityStudy (RI/FS) in 1983 which resulted in a Phase 1 remedial action.The Phase 1 remedial'action involved the closure of a leachate streamthat ran off-site towards Bald Eagle Creek. The Phase 1 remedialaction was completed in 1987.

EPA continued investigation of the site and issued a Phase 2Record-of Decision (ROD) in May 1986. The Phase 2 remediationinvolved removal of surface structures and draining and disposalof material from two lined lagoons.

According to EPA Region III, Phase 3 of the Response Actionsinvolves two responses, a source control response and a groundwaterremediation response. The Source Control remedy is currently beingperformed and involves treating the on-site soils and sludge toremove the contaminant source which will allow groundwaterremediation to be performed-without the-groundwater beingrecontaminated by the_on-site_contaminates. _This treatment willinclude: excavation of the site soils and sludge; thermally treatingthe soils and sludge to remove organic; stabilizationof treated soils and sludge which may be high in metals to controlleaching of the metals into the groundwater; and back-filling of thetreated soils and sludge after chemical tests have demonstrated thatthe material meets the treatment standards.

ftR3!965l

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III. INTERVENING PETITIONS

During implementation of the third phase of the response action,affected citizens represented by Arrest the Incinerator Remediation(hereinafter "petitioners") traveled to St. Louis, Missouri onMay 16, 1996, to petition Robert J. Martin, the Director of the EPAOffice of Ombudsman, to designate the Drake Chemical Superfund siteas an Ombudsman case. Director Martin instructed petitioners to maketheir request in writing outside of the forum of the Times Beachcase. Petitioners, in a letter to Administrator Carol Browner datedMay 22, 1996, set forth their grounds for Ombudsman intervention.See, AIR Letter of May 22, 1996. Appendix A.

Following receipt of this letter, the Office of Ombudsmandesignated the Drake Chemical site as an Ombudsman case and initiatedfact-finding under its standard procedure, eventually leading to anInterim and Final Report.

Subsequently, United States Senators Arlen Specter andRick Santorum, in a letter to Administrator Browner dated June 25,1996, commented that "[gjiven the controversy associated with theagency's cleanup plans for this Superfund site, and the misgivingsvoiced fay some local elected officials and other residents based onthe choice of a cleanup technology, we urge you to convene a publicmeeting as soon as possible that would be chaired by your Agency'sNational Ombudsman, Robert Martin. Our request for your NationalOmbudsman, rather than a Regional Ombudsman, is made because of thenational implications of a decision to incinerate." See, Letter ofU.S. Senators Specter and Santorum, dated June 25, 1996, Appendix B.

Director Martin then chaired a public meeting which was heldin Lock Haven, Pennsylvania, on September 19, 1996. Senator Specter,in a letter to Administrator Browner dated October 3, 1996,noted that n[t]he meeting was chaired by your Agency's NationalOmbudsman, Robert Martin" and expressed a preference "to receivea report from Mr. Martin which would include his thoughts on theissues raised at the public meeting." See, Letter of Senator Specterto Administrator Browner, dated October 3, 1996, Appendix C.

Finally, Senator Specter'wrote to Administrator Browner onFebruary 14, 1997, and expressed an understanding that "Mr. Martinis in a position to issue an interim report of his findings .... theresidents of Clinton County certainly have every right to receivesuch a report and I urge you to take all necessary actions to ensurethat Mr. Martin releases an interim report promptly." See, Letterof Senator Specter to Administrator Browner, dated February 14, 1997,Appendix D.

AR3I9652

-3 -

IV. AUTHORITY AND PROCEDURE

The Office of Ombudsman was established by the Congresswithin Section 2008 of the Resource Conservation and RecoveryAct. Section (a) of the law authorized the Ombudsman to "receiveindividual complaints, grievances, and requests for informationsubmitted by any person with respect to any program or requirementunder this Act." Subsection (b) authorized the Ombudsman to "make ,appropriate recommendations to the Administrator." EPA establishedthe Office in 1986 pursuant to the Congressional mandate. Followingsunset of the mandate in 1989, EPA decided to make the Office ofOmbudsman and its functions permanent because "Congress has chosenthis solution for dealing with such problems in the hazardous wasteprograms EPA administers." (See, Hazardous Waste Ombudsman Handbookat pg. l-l.) EPA also decided to broaden the function to includethe Superfund program","among others, to serve the public better.

Thus, "both the statutory language and its legislative historyconfirm the importance Congress places on the public assistancefunctions of the Office of Ombudsman. By centralizing thesefunctions in the Office of Ombudsman, Congress intended to improveEPA's responsiveness to the public with respect to the increasinglycomplex RCRA and Superfund programs .... the charge of the Ombudsmanto provide assistance with problems, complaints or grievances, isan extremely broad one." See, Handbook at pg. 2-2,3. Notably, thekeystpne__pf the. Ombudsman function is its responsiveness to membersof the public who have problems, complaints, or grievances. AsBlack's Law Dictionary provides, "(t)he Ombudsman stands between,and represents, the citizen before the government." The standardprocedure of the Office of Ombudsman favors .complaints which frame -issues in writing,.thereby serving as the foundation of an Ombudsmancase. '

The Office of Ombudsman then undertakes preliminary fact-findingon the relevant issues leading ultimately to findings of fact in aFinal Report. Necessarily, facts averred by one party, usually thepetitioner, are usually denied by the party being complained against,usually the government, in an Ombudsman case. The typical contextfor this kind of disagreement is within an Interim Report by the'Off-ice of Ombudsman.

It should be noted, once again, that the Office of Ombudsmanmakes no true MFinding of Fact" until a Final Report has beenprepared. The Office of Ombudsman-relies upon widespread comment,both external to the EPA and from within the EPA,- to' progressivelybalance viewpoints, hone technical accuracy; and determine those

ftR3!9653

- 4 -

facts which are necessary to address the issues that have beenframed by citizen petitioners. Once the viewpoints of all interestedparties to an Ombudsman case have been received and the Office ofOmbudsman has reviewed necessary primary source documents, a FinalReport is distributed.

The Final Report represents the summation of a process whichinvolves fact-finding, thorough research and the solicitation ofcomment from within and without the EPA. Recommendations are madewithin the context of a Final Report to the Assistant Administratorand other senior EPA management officials, which, if they are adoptedwill lead in the view of the Office of Ombudsman to appropriateresolution of a petitioner's complaint and surrounding issues.

Nonetheless, the Office of Ombudsman recognizes that petitionersmay feel that a problem has not been addressed or that discussionshould not be foreclosed on a particular issue. The Office ofOmbudsman will retain jurisdiction, therefore, over any such problemor issue to ensure responsiveness to the public.

This is consistent with Ombudsman policy which provides that an"Ombudsman case is considered closed when all actions have been takento resolve the problem and the person has been notified. The mainconcern in closing a case is being reasonably certain that the personis satisfied that the Ombudsman has addressed all problems." See,Ombudsman Handbook at pg. 3-10.

V. REMAND OF INTERIM REPORT

,On May 8, 1997, the Office of Ombudsman did complete and submitfor distribution an Interim Report on the Drake Chemical site. OnMay 19, 1997, the Acting Assistant Administrator for the Office ofSolid Waste and Emergency Response (hereinafter "OSWER") returned,or remanded, the Interim Report to the Office of Ombudsman "forappropriate revisions following the receipt .... of input from the".... Office of General Counsel, Region 112 and the EnvironmentalResponse Team. See, Appendix* E. The Acting Assistant Administratorwas concerned by the "initial response" of these offices after theyhad reviewed the Interim Report. They felt,that "a wide range'of "issues from technical inaccuracies, factual errors, incompleteinformation, judgmental language and statements not related tothe Drake Chemical site" had posed significant legal problems.

The Office of Ombudsman solicited comments from each officeon these concerns. Those comments and relevant documents havebeen included within the Appendices to this Draft Final Report

AR3I96514

along with a list of "key issues and all, persons consulted on ....these .issues" in accordance with the instructions from the ActingAssistant Administrator upon remand of the Interim Report to theOffice of•Ombudsman.

Briefly, Region III provided two sets of comments to the Officeof Ombudsman. The first set was dated on May 15, 1997, and thesecond set was not dated but was received in June 1997. The Regionbelieved that "the Interim Report contains inaccuracies, unsupported 'conclusions and outdated information .... (t)he Report also does notpresent a balanced view of the Drake incineration cleanup .as thereappears to have been no attempt to interview EPA personnel, PADEPpersonnel, or other stakeholders with an interest in the Drakecleanup". See Appendix F.

The EPA Office of "General Counsel (hereinafter "OGC") foundthat "(t)here are several statements .... which may be inaccuratelycharacterized as 'facts'") See Appendix G. OGC asked that theOffice of Ombudsman "ensure that allegations are identified as such"throughout the text of the Report, The EPA Environmental ResponseTeam, however, "noted that while many of the allegations ofpetitioners seem to be accepted as fact by the Ombudsman, a closereading indicates that his recommendations are aimed at addressingthese allegations". See Appendix H.

The Office of Ombudsman has in this Draft Final Report made"appropriate revisions" pursuant to the instruction of the ActingAssistant Administrator to respond to the comments offered by thethree EPA offices. Those revisions do not include corrections to"misstatements of facts" since none of the above offices specificallyalleged any misstatements of facts. This Draft does correct one ortwo factual errors, however, relating to the test for RCRA listeddioxin waste and a statement by former EPA Regional AdministratorKostmayer. Moreover, as OGC noted in their comments, only the FinalReport will delineate findings of fact in this case. Still, the ,Office of Ombudsman will be careful to note, as the OGC has suggestedand as the ERT has observed, that allegations are identified and -::responded to as such.

The Office of Ombudsman has also taken notice of informationwhich has been outdated or actions which have been taken by EPARegion III since the original Interim Report was prepared. Thisshould address the issue of unsupported conclusions, if any, whichhave been made in the Interim Report. Another measure that willaddress concerns about technical accuracy, incomplete informationand a balanced view of the Drake Chemical site-will be a review ofthe entire Administrative Record for the Drake site by the Officeof Ombudsman prior to completion of a Final Report.

AR3I9655

— 6 *~

As explained by the Office of Ombudsman in the Times BeachFinal Report, an Ombudsman review is not a judicial proceeding or anadministrative rulemaking. A thorough review of the AdministrativeRecord, however, as recommended by the OGC, is well taken and willadd to the credibility of the Final Report in the Drake site.

Finally, the office of Ombudsman will continue to rely uponthe Superfund Regional Ombudsman in Region III to help coordinatecommunications with the Region and to engage in fact-finding.The Regional Ombudsman was established by EPA AdministrativeReform last year and may be relied upon to "report to a topregional management official" in order to "facilitate resolutionof concerns that have not been resolved between regional personneland stakeholders." See Appendix I.

VI. SIGNIFICANT ISSUES AND ACTIONS TAKEN

A. Site Characterization Issues

1. Additional Waste Sites

Director Martin observed several drums on a propertyin Lock Haven during the February visit to continue fact-finding.Petitioners alleged that the drums were disposed of within theproperty by either the American Color and Chemical Company ("AC&C),the Drake, and/or Kilsdonk chemical firms. Sworn testimony offeredby Mr. Raymond C. Streck in a case which involved AC&C, addressesthis issue. See, Koppers V. Aetna, dated December 15, 1993,pgs. 57-60, Appendix O. In that testimony, Mr. Streck, in responseto a question as to whether any of the owners of the Lock Havenplant "bought a piece of property to dispose of waste product nearthe river bank?" replied that this was done "Down the other end ofPiper near the runway." He stated that he was aware that wasteproduct was buried in different locations around the Piper area.

The Office of Ombudsman asked the EPA Region IIIOmbudsman to investigate the matter of the drums further. TheRegional Ombudsman reported that "the property is located near thePiper Aircraft facility owned by Monroe Farms" and that "the wasteat the sites was generated by the American Color and Chemical Company(AC&C) as a result of their efforts to clean up several large sludgeimpoundments owned by the company." The Regional Ombudsman notedthat a "former employee claims that only sludge waste was put intothe trenches .... and that he knows nothing about drums having beendisposed of in the trenches." The former employee was subsequentlyidentified as Mr. Primo Marchessi, retiree from the AC&C firm. TheAC&C is a defendant in the Drake consent decree and the subject of

AR3I9656

BP

—•7 —

a RCRA consent order. No information.has been found at this timeby the Office of Ombudsman on the management of Kilsdonk's hazardouswaste, Appendix J.

The Pennsylvania Department of EnvironmentalProtection ("PADEP") confirmed to the Regional -Ombudsman that"there are now only the remnants of a total of nine drums at thethree sites, and that they are empty .... the drums had plasticliners, but that the liners are now corroded .... the drums obviouslycontained chemicals at one time." Petitioners subsequently returnedto the Piper site and with the use of a metal detector allegedlyfound another 18 drums at the Piper sites. PADEP concluded that"the site poses no hazard to the community" because "there areno homes located down-gradient of the drum sites and that noneof the homes in the area are in the groundwater flow pattern ofthe site" and that "there are large fields between the drum sitesand the liomes, and between the drum sites and any water bodies inthe area." See memorandum from EPA Region' III Ombudsman to theOffice .of Ombudsman, dated March 10,1997, Appendix M.

Petitioners allege more drums may be present at the Piper sitesand further allege that the source of the drums may be, the AC&C site,the Drake site, both sites, and/or other past generators, such asKilsdonk. The Piper drum sites are less than one mile from the AC&Cand Drake sites There may be other areas located within "the LockHaven community and the surrounding area which were used as disposallocations. See, Streck testimony at pg. 60, Appendix O. Petitionershave also alleged that drums may be buried in Taggert RecreationalField and hear the Unimart in Lock Haven.

The Pennsylvania Bureau of Solid Waste Managementnoted in 1981 that "[t]he investigation at Drake Chemical Companyis now being delayed awaiting the outcome of EPA's criminalinvestigation .... I received a telephone message from EPA regardingan air photo of Drake Chemical in Lock Haven. This photo revealeda possible buried dump site adjacent to the Drake property.A search of courthouse files reveals that Hoberman Salvage Companyand United Real Estate Development Association own this property.Yener Soylemez of EPA was contacted, arid this information was passedon to him. The investigation will continue as soon as EPA notifiesme that their investigation is complete." See, Memorandum to theFile from Thomas Showman, Solid Waste Specialist, WilliamsportRegional Office, Bureau of Solid Waste Management, Commonwealthof Pennsylvania, dated March 2, 1981, Appendix K. At this time,the Office of Ombudsman has no other information regarding thealleged criminal investigation 16 years ago. -

flR3!9657

- 8 -

PADEP expressed to EPA Region III on April 15, 1997that a contractor would be retained to address the matter of thedrum sites on the Piper property and that it would not be necessaryfor EPA to duplicate their efforts. EPA Region III subsequentlydiscussed "our protocol qf allowing a State to take responsibilityfor an emergency response .... it has always been our operationalpolicy to give notice to the appropriate state agency both fortheir information and to provide them the first opportunity tocarry out a response. This has been done respecting State programresponsibilities to respond in a timely fashion to incidents thatare closer to their own response personnel." See Memorandum fromCharlie Kleeman to John Armstead, EPA Region III Ombudsman, April 18,1997. The policy expressed therein is to recognize "EPA givingStates the opportunity to carry out their own responses .at sites."See, Kleeman Memorandum, Appendix L.

Following submission of the Interim Report, OGC askedthe Office of ombudsman "to clarify whether and how you consider theadditional waste sites to be related to the site characteristicsand/or remedy at Drake". See, Appendix G. OGC further requestedclarification on whether the "three sites" were on the same property,or whether there are additional properties. The Office of Ombudsmandefers to the Regional Ombudsman on the property issue. Petitionersallege that drums are on many additional properties. OGC alsorequested clarification on whether 18 additional drums were foundby petitioners or whether they had simply found "metal" in severaldifferent locations.

The ERT shared this concern, noting that "petitionersmay have exaggerated the results of one of their investigations whenthey stated that they had used a simple magnetometer to locate 18buried drums .... the vast majority of 'magnetometer hits' turnout to be other metal objects, such as bed springs, garbage cans,household appliances, etc., notwithstanding this inaccuracy, PADEPseems to be responding to the 'drum dump'". See, Appendix H.

On July 11,'1997, the Office of Ombudsman asked.theRegion III Superfund Ombudsman to, among other things, "make contactwith PADEP and Westinghouse to determine what has been found at thePiper site." See, Appendix M. On July 18, 1997, the RegionalOmbudsman replied tha't "(t)hey have found 28 drums in the area wherethe -exposed drums were located and have sampled them and are waitingfor disposal. There were a number of additional anomalies found atthe site and so far it appears that the reason for these anomaliesis not buried drums but they are sludge disposal areas (metals havebeen detected in the 10,000 ppm range). They are going to open upthe other areas that have anomalies and see what they come up with.See, Appendix M.

AR3I9658

The analysis confirms petitioners' allegation thatadditional drums were present at that site. The Region shared aconcern, however, about the "comments by the Ombudsman regardingpossible additional waste sites existing in the Lock Haven areais not relevant to the issue'of this Drake incinerator. Even ifthe drums were shown to be generated from the Drake site, the newparcels would become a separate CERCLA site and not a part of theDrake remediation". See, Appendix F. The Region has been awarethat drummed waste was present at the Drake site itself. In sworntestimony in a Federal District Court proceeding, the former EPARegion III Site Manager stated that "I expected to find drums atthe site. I did. not have the exact locations where they would be".See, Appendix O at pg. 96.

. In additional sworn testimony in Federal DistrictCourt, a witness , who formally worked for a State legislator,stated that "our office-would receive information saying that eitherwe worked there or we had relatives work there, and this happened orthat happened,, everything from dead bodies being thrown in the poolsthat were there to disappear overnight, to barrels of toxic wastebeing dumped in the ponds and so on. Because of the proximity ofthat site to AC&C, it was hard to determine who was producing what•and what was coming from where". See, Appendix 0 at pg. 24.

The issue of relevancy voiced by OGC and Region IIIwith respect to the alleged connection between the drum sites andthe Drake incinerator may be directly addressed. EPA can, and hasin many locations around the Nation, combined toxic sites whichare not contiguous for purposes of executing a single response orremedial action. For example, such locations include the Times Beachsites in Missouri and the Bayou Bonfuca and Southern Shipbuildingsites in Louisiana. Both properties involved thermal incinerationas a remedy and relied upon Section 104(d)(4) of CERCLA for legalauthority in order to continue the sites. Therefore, relevancy ofthe drum sites is not an issue. In any event, the Region hasaddressed this issue by deciding, if necessary, to establish "aseparate CERCLA site" which would be "not. %•. part of the Drakeremediation". See, Appendix F.

The Office of Ombudsman did recommend in the InterimReport that the ERT should assist PADEP to investigate the drumsites, without understanding that it is the Regional Site Manager(or OSC/RPM) who may request ERT support from EPA Headquarters.See, the National Contingency Plan, 55 Fed. Reg. 8830, para. 300.145(c)(2)(4). As the NCP provides, "the ERT is established by EPA inaccordance with its disaster and emergency responsibilities . ...The ERT has expertise in treatment technology, biology,^chemistry,hydrology, geology and engineering. The Region has'indicated,

flR319659

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itself, that it "will render assistance to the Commonwealth ofPennsylvania upon request from PADEP". See, Appendix F.

The Office of Ombudsman is aware of no requestfor assistance from PADEP to EPA Region III regarding the druminvestigation. Furthermore, petitioners have alleged that theRegion, although welcoming ERT's assistance in certain aspects ofthe Drake incinerator trial burn, does not otherwise desire ERT'sintervention. Although "ERT has long been involved in assistingRegion III at the Drake Chemical site ... . past ERT activationshave come at the request of the Regional Office and we are concernedthat ERT assistance continue to.be at the request of the Region, andthat ERT not be inserted into an oversight role". See, Appendix H.

The ERT does realize, however, "that our expertise andimpartiality do make us useful in a technical mediator or arbitratorrole, and would welcome that role if all parties agree to accept ourparticipation". See, Appendix H. The Office of Ombudsman continuesto believe that ERT's intervention in Lock Haven is desirable, butdefers to EPA Region III and the PADEP to evaluate a possible ERTrole. Nonetheless, such intervention by the ERT, at the requestof EPA Region III, could result in cost savings to the PADEP andenhanced public confidence.

RECOMMENDATION

EPA Region III should carefully evaluate the use of the EPAEnvironmental Response Team as a technical mediator or arbitratorof technical issues which involve the Drake incineration site orwhich arise from the Office of Ombudsman process. If such a roleis established, the ERT should meet with EPA Region III,PADEP, appropriate local government officials (including the LockHaven City Environmental Advisory Council and the Clinton CountyCommissioners) and the petitioners to confirm ERT participation.

2. Contaminants of Concern

Petitioners have alleged that some contaminants havenot been sufficiently characterized at the Drake site. For example,petitioners are concerned that Pentachlorophenol (PCP) was foundat the Drake site. EPA has concluded that PCP was not produced,manufactured or disposed of at the site, but did note that "[o]utof 78 soil samples at the site which were tested for PCP, only threecontained detectable levels,... while these detected concentrationswere high, EPA believes they are probably-due to the presence onthe site of wood that had been treated with PCP as a preservative."

. ' , .. - ii r. . , , , ' . ,

See, EPA Integrated Risk^Assessment at pg. 34. EPA had articulatedearlier that PCP was "found sporadically throughout the area and inthree on-site samples" but did not believe that the compound was siterelated. See, Drake Record of Decision at pg. 20.

Petitioners have also alleged that Silvex, anherbicide, has not been sufficiently accounted for at the Drakesite. EPA noted that silvex "was found at low concentrations in somedrums of waste at the site" and that it "was not detected in any soilsamples*" See, Memorandum of Frank Vavra, Remedial Project Manager,to Thomas C. Voltaggio, Director, Hazardous Waste ManagementDivision, US EPA, "RCRA Dioxin Listed Wastes Will Not Be Treated inthe Drake Chemical Superfund Site Incinerator", dated August 7, 1996,Appendix P. " „ :. = . ..

Wastes from PCP are included in the waste listingswhich may trigger a determination that a RCRA listed waste ispresent. As EPA has noted "an incinerator burning hazardous"wastemust be designed, constructed and maintained so that , when operatedin accordance with the operating requirements specified under 40 CFR264.345, it will achieve a destruction and removal efficiency (DRE)of 99.99% for each principal organic hazardous constituent (POHC) inits waste feed. 40 C.F.R. 264.343 (a)(1). An incinerator burningcertain RCRA "-listed" wastes, however, must achieve a DRE of 99.9999%40 C.F.R. 264.343 (a) (2)." See, Vavra Memorandum, Appendix P.

PCP waste may trigger RCRA listings in the FO26 andFO27 categories and silvex wastes may trigger a RCRA listing for theFO27 category. An initial EPA screening analysis demonstrated highlevels of dioxin in former building structures and holding tanks atthe Drake site. See, EPA memorandum from William A. Hagel, RemedialOn-Scene Coordinator to Walter F. Lee, Chemist, Dioxin Task Force,Region III, "Dioxin Results From Building Samples at the DrakeChemical Superfund Site", dated February 13, 1984, Appendix Q.According to OGC and EPA Region III, later tests for dioxin showednone. The Region commented, on the basis of a document that theOffice of Ombudsman did not possess before submitting the InterimReport, that, "some false dioxin detections in the site buildingand lagoon samples occurred arid how samples analyzed by a methodspecifically for dioxin showed non-detects for 2,3,7,8, TCDDfor all soil samples". •

This raises questions, advanced by petitioners, asto which analytical method was used, what the detection limits wereand what kinds of isomers were tested for at the site. Fenac willbe incinerated and was known to have been produced at the'site andwas found in approximately 37 of 43 soil .samples at Drake. EPAfound that the components of Fenac "do not normally generate dioxin

SR3I966

byproducts." See, EPA Integrated Risk Assessment at pg. 33. EPAdid not explain, however, whether Fenac and its components maygenerate dioxin by-products under conditions which are not deemednormal or which were unusual. Fenac may form dioxin "under irregularoperating conditions." See, Vavra Memorandum at pg. 5, Appendix P.

>Petitioners have asked for clarification on whether

dioxin may be produced during "unusual conditions" in manufacturingFenac and in "irregular operating conditions" during thermalincineration of Fenac.

The key test is-whether any potential RCRA listedwaste, however, was produced, used in manufacturing or discarded inunused formulation at the Drake site. The central point, therefore,is the origin of a particular waste, not its presence or amount..See, 55 F.R. 51444, 55 F.R. 8758 and the Land Disposal Rule forCERCLA response actions. See also, OSWER Directive 937.3 - OSFS July1989. On the basis of these rules, EPA Region III has found'that nowastes have triggered a RCRA listing and thereby a higher DestructionRemoval Efficiency (99.9999%) for the Drake incinerator, See, VavraMemorandum, Appendix P.

Petitioners have alleged that the Vavra Memorandum,however, may not have addressed the direct sworn testimony of Mr.Franklin Furl, a former Drake Company Manager, provided in FederalDistrict Court. Mr. Furl stated "that some of the by-products ofthe manufacture of Fenac, when the product was not 100% pure, theremaining ingredients in it were a variety of chemicals and theonly two that really popped to my mind is 2,4-D dichlorophenoxy,and also 2,4,5-T, which as I came to find out in searching the MerckIndex and that, that was like silvex was the compound. And thesewere unwanted waste products and this was a real concern". See,Appendix 0. As previously discussed, Silvex in an unused formulationmay trigger a RCRA dioxin listing.

Mr. Furl went on to testify that "when EPA submittedthe reports from the NUS Corporation of monitoring wells, and soilborings that had been done, I normally was in the habit of goingdown each of the compounds to try and see, you know, did we do this,make this or didn't we, you know, because we weren't sure of a lot ofthings. We had a list of strange names attached to some pretty nas,tychemicals and it wasn't until after we weren't employed there wefound out what we were working with. So I "would always go down thelist. And one of the soil borings or monitoring wells by ourwarehouse, I came across an odd chemical that I could not identify,to which I went to the Merck Index to look it up and I was flooredthat time because it said it was a nerve gas and I thought how did

SR3I9662

- 13 -

that ever get there. Well, in further reading of the Merck explana-tion, it stated that it can be manufactured, and it gave the list ofthe compounds that1 are necessary, which were all present at ourplant" .... See, Appendix O.

RECOMMENDATION

To the extent not addressed by the Vavra Memorandum or other-wise within the Drake Administrative Record, EPA Region III may wishto consider developing a Fact Sheet that explores how allegationsregarding unused formulations of Fenac and potential nerve gascompounds were addressed at the Drake site.

B.

.1, General

Petitioners have alleged that the risk assessmentfor the Drake site is deficient. Three risk assessments have beenperformed to predict potential trial burn impacts from the Drakeincineration operation. The first risk assessment was conductedin December of 1995. The second risk assessment report was completedin June of 1996. A third risk assessment of the trial burn wasconducted in February of 1997 to reflect winter season conditions.EPA has concluded that despite variables and modifications inapproach between the risk assessments, "the resulting calculatedrisks for each of the three risk assessments are within the rangeconsidered acceptable for cleanup activities under the Superfundhazardous waste program." See, EPA Draft Comparison Report atpg. 39. '....„. _ . _

EPA is evaluating the risks from operation of theincinerator during the trial burn by analyzing real emissions dataand "EPA has committed that before we begin a production burn, wewill have a public: meeting to discuss a comprehensive risk assessmentfor the production burn, and as EPA has always maintained, we willnot commence the production.burn unless the risk assessment shows itis safe to proceed." See, EPA Region III letter from Gregg Crystalto Petitioners Technical Advisor, dated February 28, 1997.

Finally, the Acting Assistant Administrator for OSWERhas decided, "(o).n a parallel track with' your Ombudsman efforts atthis site" to ask "Region III to work with me to facilitate a peerreview of the project plan for the final risk assessment over thenext 60-90 days." See, Appendix E. The Office of Ombudsman nowunderstands that the Peer Review will be completed in February of1998.

AR3I9663

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2. Air Monitoring

Petitioners have alleged that the risk assessmentshould take into account the problems the air monitoring networkis having in connection with B-Napthylamine (BNA). Petitionersalleged earlier this year that "it is clear there are non-detectsfor BNA at the monitors .... more information is needed before theresults can be validated. Unresolved questions include; calibrationparameters, quality control procedures, field blank use and recovery,impact of local modification and spike recovery on local Drakemonitors .,.." Petitioners asked EPA to "stop incineration untilperimeter and off-site monitors can measure BNA at the trial burnrequirement of .001 ug/m3; or jlf that level is technically impossiblethen have a public comment period on whatever level the monitors areultimately successful in achieving." See, GAP Preliminary ReportNo. £, dated January 28, 1997.

EPA'was not able to meet the original "BNA detectionlimit of 0.001 micrograms per cubic meter" but has been able to meeta detection limit of "2.0 micrograms of BNA per cubic meter usinga NIOSH analytical method, which is well below the PA Air toxicguidance level for BNA of 19.0 micrograms per cubic meter."See, EPA Letter to Petitioners at pg. 2, dated February 28, 1997.

EPA Region III has since further explained to theOffice of Ombudsman that "(t)he estimated detection level which wasgiven .... was not based on public health guidance or as a desireddetection level, but rather as a limit on the method .... (t)he goalof the air monitoring program was to detect -levels above 19 ug/m3which is the PADEP Air Toxic Guidance recommended yearly averagesafe, level .... EPA's goal of complying with this value was madeknown to the public and petitioners' technical advisor was made awareof it" .... The Region finally concluded that "(a)nalysis of BNA atthese extremely low levels is at the envelope of analytical science.EPA is striving .toprovide the community with the most protectivedetection levels possible with the current State of analyticalscience". See, Appendix F, pg.. 5-6.

Petitioners have alleged that the meteorologicalcomponent of the risk assessment is deficient because the datais not site specific to the Drake facility but is derived from theWilliamsport, Pennsylvania Airport which is approximately 20 milesaway from the site. EPA has explained that this data "was used inlieu of on-site data that had been invalidated"for the projectedperiod of the trial burn. Those on-site data were invalidated

flR3!966l»

because of instrument failure and improper tower siting. Forpurposes of estimating the ambient impacts of the incinerator stackemissions during normal operations, EPA used the ISC3 (IndustrialSource Complex Model, Version 3) model on_the Williamsport,data, andfor calculating the effects of upset emissions, EPA used the "INPUFF"model." "See, EPA Response to Comments, Drake Chemical SuperfundSite Trial Burn Process, dated September 12, 1996.

Moreover, petitioners have alleged a deficientanalysis within the risk assessment for thermal atmosphericinversions in the Valley location, in general,, and within theair shed above the site, in particular.

Ms. Justh, a citizen of Lock Haven, commented in thepublic meeting held last September that EPA should not abandon itsefforts to use site specific weather data but should return to thesite and develop a suitable data base. See, Transcript of DrakePublic Hearing at pg..174, dated September 19, 1996, Appendix R.The Office .of Ombudsman did comment in the Interim Report thatthe CALPUFF and INPUFF models are useful for assessing the ambientimpacts of incinerator stack emissions during normal and upsetconditions, but, they may not be uniquely sensitive to the sitespecific weather conditions or to thermal inversions in the Valleywhere Lock Haven is situated. The Office of Ombudsman felt thatit might prove useful to employ weather balloons to measure theeffects of thermal inversions on incinerator stack emissions.

EPA Region III has taken the position in theircomments to the Office of Ombudsman that the existing "data setis suitable for 'evaluating the possib.le impacts from the Drakeincinerator and that this approach is actually better the using(sic) of on-site data." See, Appendix F, pg. 6. The Regionalso noted that the data collected from a RASS/SODAR weathersystem to be installed "will allow EPA to develop a far betterrepresentation of the thermal structure of the Valley then (sic)would be possible using weather balloons." .See, Appendix F,at pg 7. Nonetheless, the Region will, twice during the year,tajce the "weather data from the RASS/SODAR weather system'to be checked against readings obtained using weather balloons".See, Appendix F, pg. 7.

4. Fugitive Emissions

Petitioners have argued that fugitive emissions fromthe site have not been sufficiently addressed in the risk assessment.The EPA Integrated Risk Assessment provides that; "fugitive emissionswill be negligible due to the control measures prescribed." See,pg. 16. The Office of Ombudsman understands that those measures

AR319665

" - 16 -.

include the use of concover on the site waste stockpiles. ^i^Petitioners remain concerned, however, that the large piles ofwaste feed on the site pose a threat to the community. Windsmay have carried dust and particulate matter into the community.A nursing home which provides care for the elderly is withinone-quarter mile of the site.

The Office of Ombudsman did recommend in the InterimReport that EPA Region III consider the use of additional measures(synthetic coverings and negative pressure enclosures) to addressthe allegation regarding fugitive emissions from the stockpiles.The Region, in their comments to the Office of Ombudsman, stated that"EPA and the USAGE believe that adequate fugitive emission controlsare already in place .... but we are willing to consider specificrecommendations from petitioners for improvements" .... The Officeof Ombudsman encourages the Technical Advisor to petitioners to workwith EPA Region III on improvements to the control measures.

C. SITE OPERATIONS ISSUES

1. Chain of Custody

The Technical Advisor for petitioners alleged inJanuary that "the chain of custody for the bottom ash samples wasbroken for both trial burn runs conducted on 1/25/97, and considerthe samples invalid .... it was observed that the trial burn samplingcontractor MRI ash sampler who was collecting bottom ash samplesevery half-hour for both trial burn runs left the bottom ash samplesunsecured, unattended, and completely out of his sight for over30 minutes between each sample period throughout the entire two runs.He also left-the entire first run samples unsecured, unattended andcompletely out of his sight for over 30 minutes after the end of therun. During the entire two runs all persons on site had full andfree access to the samples. Further access was given to anotherbottom ash sampler working for the EPA contractor OHM. This samplerwho was collecting bottom ash samples hourly during both runs tofulfill the put-back sampling requirement had full, free andunsupervised access to the MRI samples. He also shared the samework station, used similar collection plans, and collected samplesat times different from the MRI sampler." See, GAP Memorandum toEPA, Hand Delivered on Site, January 26, 1997.

The Technical Advisor went on to allege that "[t]hisissue was brought to your attention after the first run in an attemptto prevent further violations, possibly resulting in declaringfurther runs invalid. There was no resolution on this issue,

&R319&66

- 17 -

and the second run continued with no changes in the chain of custodyprocedures. It must be pointed out that less than satisfactory chainof custody procedures prompted a second stack test burn last week atthe Times Beach site almost a year into their project. This issueshould be resolved promptly, hopefully while the MRI sample teamis still on site." See, GAP Memorandum,dated January 26, 1997.

EPA Region III noted the_observation of the techni-cal advisor that "a cooler of ash samples was left unattended forapproximately one-half~hour inside the secure area" .... butconcluded that " [p]roper chain of custody and traceabilityprocedures were followed for ash samples. The data is reliable.These procedures have been reviewed by EPA, PADEP, USAGE andindependent consultants." , See, EPA Letter from Gregg Crystalto GAP dated February 28, 1997.

The Office of Ombudsman did extensively discuss thisissue within the Interim Report, but has determined in this DraftFilial Report to defer further analysis; pending a review of the DrakeConsent Decree and other EPA Guidance documents with respect to theChain of Custody issue. OGC has commented that "Guidance .... arenot requirements" and that "Regions are free to develop .reasonableand appropriate site-specific procedures other than those describedin Guidance". See, Appendix G.

The Region commented that "since the ash failed theput down criteria, data on the ash will not be used" and that theevent which petitioners allegedly described "does not necessarilyrender a sample being .in an uncontrolled situation" .... andconcluding on this issue that "the procedure were (sic) madestricter afjter the petitioner's Technical Advisor raised concerns.... trial Burn 2 and the Risk Burn 2 all had the stricter procedure.... (i)n the future the stricter procedure will be followed".See, Appendix F. Finally, Region III commented that (t)he samplescollected during Risk Burn 1 and.2 were sent to the laboratory usinga private plane, thus, providing direct control. Depending on thesituations and needs, different levels of control and-, documentationof custody records may be applied .... (w)hile the lowest level canbe used for any kind of engineering study or design study where thegoal is to collect data for optimization of remedial actions to betaken". See, Appendix F.

The management of ash collection and sample shippingby EPA Region VII,and the Environmental Response Team in the retestrecommended by the Office of Ombudsman for the Times Beach site inMissouri was merely used in the Interim Report -as a case examplein the fact-finding process regarding ash sample management. Inparticular, "[e]ach jar was labeled with the time and date of sample

«R3i9667

- 18 -

collection, the project name, and the analysis to be performed. Acustody seal was attached to the lid of each jar and each jar wasplaced in a ziplock plastic bag. Separate chain of custody formswere completed for the REAC samples, the split samples, and thearchive samples. Samples were kept under constant surveillance byREAC personnel until the sample cooler was packed and custody sealed.At the end of each day the samples were kept in the locked REACtrailer." See, EPA Environmental Response Team Final Report on theStack Test for the Times Beach Project, dated April 1997, Section2.2.2.2, Ash Sample Management at pg. 14.

As previously noted, the Office of Ombudsman willnot further discuss this issue until a thorough review of theAdministrative Record and Guidance.documents have been undertaken.

2. Occupational Safety and Health Issues

The Technical Advisor to petitioners alleged that"[e]vidence of beer drinking was discovered on-site on 1/27/97, on-site inspection showed conclusively that empty beer cans and bottlescame from on-site because beer cans and bottles were mixed with site.documents in double sealed trash bags in dumpsites located inside thesecond interior guarded fence. This evidence strongly suggests thatthe beer was consumed on site." See, GAP Memorandum to EPA datedJanuary 1997, EPA does not believe that there is any evidence to"substantiate the claims that any site supervisor or employee hasviolated" stringent policies against possession or use of alcoholor drugs on the site. EPA has also noted that "at least two moreinspections fay OSHA are upcoming including one by a specializedincinerator inspection team." See, EPA Letter from Gregg Crystalto GAP, dated February 28, 1997.

In addition, one former OHM employee alleged "he was"roughed up" and stuffed in a drum containing contaminated soils inorder to coerce his silence regarding problems at the Drake site".See, GAP Letter to EPA Region III, dated February 4, 1997. Thisformer employee did offer direct testimony to the Office ofOmbudsman,

Finally, another former employee of the EPA contractorOHM Inc. for the Drake site reported to the Office of Ombudsman thatmany employees had prior knowledge of "spot check tests" for drug andalcohol use. This former employee and a member of petitioners'organization also reported to the Office of Ombudsman that indirectdeath threats had been made against them because of their allegationspertaining to drug and alcohol use on the site.- As noted in theInterim Report, the office of Ombudsman did bring these allegationsto the attention of the Office of Inspector General in May of 1997.

&R3I9668

- 19 -

The Pennsylvania State Legislature did enact aResolution which, among other things, allege that "EPA did notadvise the community or DEP of the steps it is taking to investigateallegations of drug and alcohol abuse among employees that operatethe incinerator." See, Senate Resolution No. 31, April 15, 1997.Appendix S.

The Legislature resolved to "urge the USEPA to ceaseoperation of the incinerator at the Drake Chemical Superfund siteuntil the serious concerns about on-site decision making, involvingthe officials of the Bprough City of Lock Haven, Pennsylvania and thePennsylvania Department of Environmental Protection in key decisionsand the allegations of drug and alcohol abuse are investigated . . . . "and that EPA "publically disclose the full and complete test resultsfrom all trial burns at the, Drake Chemical site as soon as they areavailable." See, Senate Resolution No. 31. April 15, 1997.

The National Contingency Plan provides that "contractsrelating to a response action under the NCP should contain assurancesthat the contractor at the response site shall comply with any appli-cable provision of the Occupational Safety and Health Act 'or StateOSH laws". See NCP section 300.150(c).

'On October 9, 1992, Chemical Waste Management Inc.

of Oak Brook, Illinois agreed with the United States Department ofJustice to pay $11.6 million in fines to settle federal charges inconnection with the cleanup of the Lackawanna Refuse Superfund site ,near Scranton, Pennsylvania. At the time, this was the largestenvironmental crimes case prosecuted under the Superfund law. Inaddition to the criminal fines levied against the firm, the Companyagreed to terminate and/ or discipline six fcWM employees. The Office .of Ombudsman understands that the firm was not debarred as a resultof the criminal fines or the administrative settlement with theEPA. Petitioners alleged that the same terminated and/or disciplinedindividuals may now be working for OHM at the Drake site. EPA Region

-III has found that "[t]here are no employees or contractors workingat the Crake site that are debarred from state or. federal projects."See, Letter from EPA Regional Administrator McCabe to United StatesSenator Santorum, dated April 21,

The Office of Ombudsman did recommend in the InterimReport that the_ EPA Office of Inspector General, if appropriate,should address. this issue. Regional Administrator McCable followingsubmission of the Interim Report, however, addressed this issuedirectly. In a May 23, 1997, letter to State Representative CamilleGeorge, he stated that "(t)here are employees at the Drake site .who did work for CWM at the Lackawanna site, however ,' none of the

AR3I9669

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employees at the Drake site were implicated for any wrongdoing atthe Lackawanna site or any other site. I will add that these issueshave recently been referred to the EPA Office of Inspector General".

See, Appendix T.

Regarding the allegations of drug and alcohol use atthe Drake site, Region III commented to the Office of Ombudsman thatthe U.S. Army Corps of Engineers had investigated these allegations"and produced a letter" to demonstrate that there was no basis tothe allegations. Regional Administrator McCabe affirmed that "USAGEconducted an investigation into these allegations and determined thatthere is no evidence to substantiate the allegation of drug andalcohol use fay any supervisors or employees on the job at the DrakeChemical site," See, Appendix T. To the extent permissible underlaw and in order to enhance public confidence in the operation of theDrake incineration project, EPA Region III should provide the Corpsof Engineers letter to the petitioners, which explains how theallegations were investigated.

The Office of Ombudsman, beyond referral to appro-priate enforcement authorities of such allegations when they aremade, will take no further action.

LEGAL AND COMMUNITY INVOLVEMENT ISSUES

1. Community Involvement Issues

Petitioners allege that commitments made my formerEPA Regional Administrator Kostmayer have not been observed sincehis departure from EPA. Following a discussion with petitioners,Kostmayer noted that "EPA has not performed an assessment of newtechnologies .... Unless the EPA can fully respond to and resolveto the community's satisfaction all of the serious questions whichremain regarding the impending Drake incineration, I believe theAgency should reopen the Record of Decision (ROD).on the DrakesChemical site ....". See, Letter of Peter H. Kostmayer to VicePresident Albert Gore dated September 12, 1996, Appendix U.

The Clinton County Farm Bureau communicated directlywith the Office of Ombudsman and noted that "[d]ue to recent concernsbeing voiced from more of our members, our Board of Directors votedto extend our concerns to your office in hopes that you could beinstrumental in persuading EPA .to reopen their Record of Decision.Our Board would like a determination of, 8 years later, whether ornot incineration is still the best method of cleanup for this sitebeing that the 1988 Record of Decision was based on the riskassessment being done in that time period. A new risk assessment

HR3I9670

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has been developed this year for this site and we feel that a newRecord of Decision should be established based upon new findingsand statistics. We would also like to be assured that thereis an effective evacuation plan for all residents in Lock Havenand nearby communities should any detrimental malfunctions occurat the site." See, Letter of Clinton County Farm Bureau to theOffice of Ombudsman, dated November 5, 1996. See, Appendix V.

The Farm Bureau by the terms of the letter is alsoconcerned about the effect of the incineration response action onbuyers of their crops and farm produce. The Office of Ombudsman hasreceived two letters dispatched by food buyers which were forwardedby. a Clinton County Commissioner. See, Appendix V.

The Office of Ombudsman noted in the Interim Reportthat EPA Region III had begun to address many of the communicationproblems pointed out by State legislators and members of theCongressional delegation.

EPA Region III Administrator McCabe pointed, out that"USEPA, USAGE, and PADEP held a partnering meeting in Lancaster,Pennsylvania, on March ,5 and 6, 1997, to resolve PADEP's concerns"and based on this meeting it is the Region's "understanding thatthese concerns have now t>een addressed." See, Letter from EPARegion III Administrator McCabe to United States Senator Santorum,dated April 21, 1997. See also, the Partnership-Agreement,Appendix W. Although the letter discussed many of-the issuesraised by petitioners, petitioners do not feel that the letterwas responsive to their concerns.

2. Legal Issues .

SEDA-COG, the Council of Governments representing13 counties in Pennsylvania, including Clinton County where theDrake site is located, has proposed to the Congress that "citizensand local governments"' should be able "to legally challenge EPAprior to the completion of Superfund cleanups if there is reasonable ,concern that, irreparable harm to a population may occur." The countygovernments have reasoned that "Superfund sites generally containpotentially lethal or carcinogenic toxins and irreparable harm toa population may result _frorn EPA's choice of remediation, or fromviolations of the law occurring on the clean-up site itself."See, Issue Papers for SEDA-COG Congressional Meetings.

The Office of Ombudsman had recommended in the InterimReport that OGC explain to SEDA-COG the law and policy which supportthe prohibition to such challenges to EPA Superfund clean-ups priort o completion. . ' . . . . .

AR31967I

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The Office of Ombudsman also recommended an expansionof dispute resolution provisions in Superfund consent decrees toinclude citizens. 'OGC indicated a willingness to meet directlywith the SEDA-COG, but made clear that "(w)e do not think you shouldrelease any statements in this area without discussing the issueswith OECA and the Drake litigation team". See, Appendix G. TheOffice of Ombudsman has decided to consult with OGC and OECA priorto further discussing these issues within the context of this DraftFinal Report or the Final Report.

IV. CONCLUSION

Petitioners have offered meritorious issues for review bythe Office of Ombudsman. This Draft Final Report addresses manyof those issues. Several other issues such as the' request toassess new technologies, to assure an evacuation plan, to examinesoil mixing; and allegations regarding the need to recontrol thesite could not be dealt with in this report because of time andresource constraints. As previously noted, those issues and otherswhich may be raised during the comment period will be addressedwithin the final report of the Office of Ombudsman on the Drakesite.

The Office of Ombudsman will, during the interim period betweenissuance of this Draft Final Report and submission of the FinalReport, continue to consult with Region III, OGC, ERT, localgovernment officials, Congressional representatives, and of course,the petitioners. The Administrative Record will be reviewed as wellas the data from the Trial and Risk Burns for the Drake incinerator.The Office will also continue to work closely with the Agency forToxic Substances and Disease Registry, which is conducting anevaluation of the potential health implications of the "proposedincineration remediation .... that "may lead to recommendations,including the recommendation of alternative remedial actions, ifthey appear necessary to protect public health." See ATSDR Letterof June 24, 1997. See, Appendix X.

The Office of Ombudsman will take written comments from thoseparties who wish to make them for 60 days after the issuance of'thisDraft Final Report. The Office of Ombudsman will then issue a FinalReport on the Drake site within 60 days after the comment period.

AR3I9672

APPENDIX Q

AR319673

1 IN THE UNITED STATES DISTRICT COURT

2 FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

3Clinton County Commissionersand A.I.R., Inc.

vs

•-/

96-CV-181

United States EnvironmentalProtection Agency andCarol Browner

9

10 BEFORE: Honorable Malcolm Muir

11 - PLACE: Williamsport, Pennsylvania

12, PROCEEDINGS: Preliminary Injunction Hearing

13 DATE: Tuesday, March 6, 1996

14 VOLUME: Two

15

16

17

18 APPEARANCES:

19 Mick G. Harrison, EsquireRobert Ukeiley, Esquire

20 Greenlaw, Inc.P. O. Box 77463

21 Washington, DC 20013-7463For - Plaintiffs

22Lewis, M. Barr, Esquire

23 Timothy Burns, EsquireU.S. Department of Justice

24 Environment Division, Room 731010th Street & Pennsylvania Ave., N.W,

25 Washington, D.C. 20530For - Defendant

OFFICIAL COURT REPORTER

AR3I967U

3

4

5

6

7

8

9

10

11,

12

13

14

15

16

17

18

19

20

'21

22

23

24

25

APPEARANCES, Cont'd; ,

Kareri Kraus, EsquireWayne Walters, Esquire

Fo.r - -Defendant

OFFICIAL COURT REPORTER 4 H J f 9b /5

1 INDEX OF WITNESSES

2

3 Plaintiffs' Witnesses

4JAMES LOVETTE

5 Direct Examination by Mr. Harrison. . . . . . . . . 6Cross Examination by Mr. Burns. . V . . . . . . . . 22

6FRANKLIN A. FURL

7 Direct Examination by Mr. Harrison. . . . . . . . . 27Cross Examination by Mr. Burns.- . . . . . . . . . . 42

8 Redirect Examination by Mr. Harrison. ; . . . . . . 51Recross Examination by Mr. Burns.. . . . . . . . . . 57

9VICTORIA SMEDLEY

10 Direct.Examination by Mr. Ukeiley . . . . . . . . . 61Cross Examination by Mr. Barr . . . . . . . . . . . 73

11 Redirect Examination by Mr. Ukeiley . . . . . . . . 82Recross Examination by Mr. Barr . . . . . . . . . . 84

12_DEAN M. BOTTORF

13 'Direct Examination by Mr. Harrison. . . . . . . . . 86Cross Examination by Mr. Barr . . . . . . . . . . . 90

14 Redirect Examination by Mr. Harrison. . . . . . . . 97

15 GARY L. JONESDirect Examination by Mr. Harrison. . . . . . . . . 100

16 Cross Examination by Mr. Barr . . . . . . . . . . . 1 7 3Redirect Examination by Mr. Harrison......... 190

17

13

19

20

21

22

23

24

25

OFFICIAL COURT REPORTER A R 3 1 9 6 7 6

1

2

7

8

14

15

16

17

18

19

20

21

22

23

24

25

INDEX OF EXHIBITS

Plaintiffs' Exhibits. .

PLAINTIFFS' EXHIBIT.NUMBER 16, EPA's Report of 1989 entitled,Experimental Investigation "of"Critical Fundamental Issues in'Hazardous Waste"Incineration,Identified. . . . • ." . . . , . . . . . . . . . . . . . . 167Admitted. . . . . . . . . .' ". . "V . . . . . .' . . . ". . 202

PLAINTIFFS' EXHIBIT NUMBER 26, Results Report of Sample D030Comp 2,Identified. . . . . . . . . . . . . . . . . . . . . . . 106Admitted. . . . . . . . . . . . . . . . . . . . . . . . 202

PLAINTIFFS' EXHIBIT NUMBER 35, PA EPA Correspondence to RoySchrock dated 8/5/95,Identified. . . . . . . . . . . . . . . . . . . . . . . . 125Admitted. . . . . . . . . . . . . . . . . . . . . . . . . . 202

Defendant's Exhibits

DEFENDANT'S EXHIBIT NUMBER 40, Block Diagram of Rotary Kiln.System,Identified. . . . . . . , . . . . / . . . . . . . . . . 174-Admitted. . . . . . . . . . . . . . . . . . . . . . . . 202

OFFICIAL COURT REPORTER • _ _AR319677

24

1 those statements. We -- our office would receive information

2 via telephone, mail, or personal visits, saying that either

3 we worked there or we had relatives work there, and this

4 happened and that happened, everything from dead bodies being

5 thrown in the pools that were there to disappear overnight,

S to barrels of toxic waste being dumped in the, ponds and so

7 on. Because of the proximity of that site to AC&C'it was

8 hard to determine who was producing what and what was coming

9 from where,

10 Q May I just ask you, interject a. quick question and

11 t'hen I'll let you go on. When you use the term AC&C,-' does

12 that refer to the American Color and Chemical plant next

13 door?

14 A Yes, sir.

15 Q Thank you. Please go on.

16 A And we would check -- Mr. Lettertnan basically told

17 myself and the other members of our staff, as well as other* . . .

18 staff that he had assigned to him.as chairman of the Joint

19 Legislative Air and Water Pollution Control and Conservation

20 Committee, to check out everything, some of which we couldn't

21 because there was just no paper trail. I mean we went on

22 examinations of sites off of the Drake site where there was

23 stuff supposedly buried, which has been documented, I think

24 through inquiries through EPA, to try to determine whether or

25 not -there were any other sites associated that should be

OFFICIAL COURT REPORTER RR3I9.678

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THE COURT: . Would you spell your last name for me?

A F-U-R-L.

THE COURT: Your first name, Mr. Furl?

A . ."Franklin

. THE COURT: And your middle initial, if any?

A A.

, THE COURT: A. .

A It's junior.

THE COURT: What?

- A Junior. . . ' . _ _ . _ _ _ _

THE COURT: Oh, all. right. ' . .

In what community do you live?'

A Lock Haven.

THE. COURT: And what is your business, profession,

or occupation?

,A Present I'm unemployed.

THE COURT: All right. What . was the last employment

you had, please?

Haven .

Management staff for First Quality Products in Lock

THE COURT: And what kind of a business was that?

A Manufacturer of disposal diapers for adults.

THE COURT: Disposal type of what?

A Diapers for adults.

THE COURT: You may go ahead, sir.


AR3 I 9679

27

1 , DIRECT EXAMINATION

2 BY MR. HARRISON:

3 Q Good morning, Mr. Furl. If you could explain what

4 history you had, if any, related to the Drake Chemical site?

5 A As far as the Drake Chemical site, I went to work at

6 Drake Chemicals in September of 1974 and was employed there

7 until September, October of 1979.

8 And 'during my employment there I started as a waste

9 treatment plant operator and moved to a working foreman. And

10 when I left I was assistant production manager.

11 Q So you were assistant production manager in your

12 last capacity at the Drake Chemical Company?

13 A Correct.

14 Q Could you explain what your role was as the

15 assistant production .manager?

16 A Basically overseeing all operations of the company.

17 Q In that capacity did you have, occasion to become

18 familiar with the chemical manufacturing processes used at-

19 the plant?

20 A Yes.

21 Q All right. And I realize this may be complex, so if

22 you give me a brief explanation as nontechnical as possible

23 of what this company manufactured there and how it went about

24 ' it. . ' ' . ' - •

25 A Drake manufactured a large-variety of products,

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mostly for the dye industry. 'However, .they also manufactured

herbicides for -- I/m trying to think -- Union-Car.bide was

probably their largest customer. that would basically give

you'. just ..an -overview pf...wha_.t .they made.

Q All right. Do you know some of the specific

chemical compounds used in their manufacturing process?

A In relation to what?

Q Well, let's talk about herbicides -- • .

.A In total?

Q -- the herbicide production.

A Okay. The herbicide production, basically that was

chlorobenzenes that was used. We also further chlorinated a

chlorinated benzenes, it is known as just chlorinated

benzene, and we chlorinated that again to make a

trichlorobenzene. That was used in the manufacture of the

herbicide that goes by the trade name of Fenac.

. THE COURT: How do you spell- that?

A Capital F E-N-A-C. .

THE COURT: Okay.

A And that involved the use of monochlorobenzene,

trichlorobenzene. We also used cyanide in the manufacture of

that. So there was a lot of various components.

BY- MR. HARRISON: '

Q • All. right. And was there any use or not of the

chlorinated 'phenols in your manufacturing process?-

AR3I968

1 A Yeah, this was a -- this is what it became through

2 the manufacturing process, we manufactured it into that. The

3 actual chemical name for the Fenac herbicide was

4 2,4,5-trichlorophenol acetic acid.

5 Q All right. And did you have occasion during your

6 employment at the Drake site to make inquiries into whether

7 or not the manufacturing processes used there might lead to a

8 contaminant in the product of dioxin?

9 MR. BURNS: Objection, Your Honor, there's no

10 foundation; the witness is not a chemist.

11 THE COURT: What's your view, sir?

12 MR. HARRISON: I don't think the witness needs to be

13 a chemist as the assistant production manager to talk about

14 the production processes, the chemicals produced

15 intentionally and those produced accidentally.

16 ' THE COURT: We'll overrule the objection.

17 MR. HARRISON: Thank you, Your Honor.

18 BY MR. HARRISON:

19 Q Mr. Furl, do you recall the question?

20 A Yes.

21 Q All right, if you would answer.

22' A At the period of time that -I was employed, I agree

23 with the statement that was made I was not a chemist, but I

24 was very, concerned because there was a lot that I h.ad been

'2S reading myself in various journals and so forth concerning


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various. herbicides and health effects to it. And one of my

concerns was the safety of the people that worked there.

And in investigation I understood that a lot of the

laboratory analysis that we • did were run through what 'they

call "a gas chromotography machine, and I knew that this was*

designed to tell 'us how pure the compound was that we .made.

So I started to learn more about the process and finding out

what the other, as they were called, spikes would be coming

out from the machine. And I, through .working with the lab

people and that, they were always glad for somebody to teach

somebody what they were doing. And what they were -- as I

came to find out from looking at these results from. these -

tests, that some of the by-products of the manufacture of

Fenac, when the product -was not 100 percent pure, the

remaining ingredients in it were a variety of chemicals and

the only two that really popped to my mind is 2,4-D,

dichlorophenoxy, and also -2, 4, 5-T, which as I came, to find

out, in searching the Merck Index and that, that was like

silvex was the compound. And these were unwanted waste

products. ..And this was a real- concern,

.Q ,Do you recall whether EPA took any position during

the early years of their investigation in the 1982- '84

period, to your personal knowledge , as to whether or not

dioxin would be expected as a- contaminant on this site?

A Yes.

OFFICIAL COURT REPORTER • • *

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Q What position did EPA take, to your knowledge? "

A It's kind of a -- I'm trying to think of the best

way to explain this to you. In '83, in April of '83, because

of the Super --of that site having became a Superfund site,

I was instrumental in organizing a citizens group to secure'

medical screening for the former employees of Drake, and also

to help at that point, EPA and the Pennsylvania -- as it was

known then was DER -- Department of Environmental Resources,

because they did not seem to be finding what we knew was

already there and were not aware of'the history nor of the

manufacturing processes. So we wanted to make sure that this

information was relayed to them so that the cleanup would be

done and be done properly.

So what occurred was is, one of the things and In

the statements that I made to Mr.-William Hagel, who was the

site coordinator for EPA, was warned him that there could be

dioxin present, there could be a lot- of other compounds,

another one which has some very adverse health effects which

was foeta-Naphthylamine, and he agreed and had consequently,

because of that, they began testing for dioxin on a certain

percentage of their samples that were being taken from the

site.

We also gave them the location qf the drums that

were buried on the site, where they would find them, and

probably what 'they could expect to find in them.

OFFICIAL COURT REPORTERAR3I968U

I Q All right. Thank you. Now,;I want to show you a

2 document which has been previously marked as plaintiffs'

3 exhihi-t ..number 1 and ask if. you. can" identify it.

4 - THE COURT: It's already been identified. -That'si

S okay. = . ----_ :- - - ..-_-_-._::...... • .- -

6 MR., HARRISOW: I understand.

7 BY MR. HARRISON:

8 Q Just .ask if you have ever seen it before?

9 A Yes, I have. •

10 Q And do you recall the first time you saw it?

11 A Well, to be right honest about.it, no. I know it

12 was some years ago.

13 ' Q It was some'years ago?

14 A Yes.

15 Q I see* If you'll take a moment to look over the .

16 results. Do you see there that there are numbers given as

17 test results for dioxin sampling?

18 A Urn-hum.

19 Q And do you understand the quantities represented

20 there? ' . '

21 A Yes.

22 Q Do 'those numbers surprise you?

23 A - No, they don't surprise me. And the main reason is

24- because that was one of our main concerns that it was on

25 site. - .


AR3I9685

33

1 -Q All right. Now, Mr. Furl, did you have occasion in

2 your employment at Drake to become familiar with the waste

3 disposal practices at the site?

4 A Yes.

5 Q All right. And, in your opinion, if this level of.

6 contamination was found ac the locations indicated on exhibit

7 number 1 --

3 MR. BURNS: Objection, Your Honor. Are you finished

9 with your question, Mr. Harrison?

10 MR. HARRISON: No, the question wasn't finished.

11 'MR. BURNS: I'll let him finish.

12 THE COURT: All right, start it over.

13 MR. HARRISON: Yes.

14 BY MR. HARRISON:

15 Q Mr. Furl, if you -- based on-your experience at the

16 Drake site and your familiarity with their waste disposal

17 practices, given the information on this exhibit regarding

18' the extent of contamination on.the tanks, in the tanks,

19 drippings on the floor-, in the rafters, and so forth, .

20 assuming that this represents an accurate test, would you

21 expect that these same chemicals would be found in the soil

22 on the site?

23 MR, BURNS: Objection, Your Honor.

24 THE COURT: Now just a second. If you see defense

25 counsel rise just hold your answer until we see- whether it'sfOFFICIAL COURT REPORTER

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proper for you to answer "the question.

What is- the objection?

• - MR. BURNS: The objection is there's no foundation

for the testimony that counsel is attempting to elicit. He's

asking a question .that would properly be directed to an

expert, who understands the behavior of dioxin in the

environment, and there isn't any foundation laid for that

kind of testimony here. .

. MR. HARRISON: -Your Honor, I'm not attempting to

have this witness explain how" dioxin moves, through soil or

air or water in any technical sense. All I want to know is,

from this witness, based on how he knows waste was handled at

this site, and what he knows about chemicals found in one

location either being found or not, being found in another

location, whether he would expect this same type of

contamination in the soil.

THE COURT: We'll sustain the objection. You may

ask another question.-

MR. HARRISON: All right,.

BY' MR. HARRISON: /

Q Mr. Furl, can you explain how Drake handled their

chemical waste at the site during your employment:?

MR. BURNS: Objection, Your Honor, that's an

ambiguous question.

THE COURT: What's your response to that?

OFFICIAL 'COURT REPORTER

flR3!9687

35

1 MR. HARRISON: Seems clear to me, Your Honor. I

2 don't know his -~

3 THE COURT: It doesn't seem ambiguous to me either

4 so I'll overrule the objection.


6 BY MR. HARRISON:

7 Q Mr. Furl, could you explain the practices used by

8 Drake Chemical during your employment to dispose of chemical

9 waste?

10 , A Yes. And to give a background, that is what I was

11 hired originally at Drake for was to be a waste treatment

12 plant operator, which involved a primary treatment of our

13 . waste before it was sent into the city sewer system.

14 And working as an assistant production manager and

15 in other positions within the facility, I worked with and

16 even actually made most everything that was ever made there

17 during that period of time. •

18 And basically the waste distribution would be, the

19 bulk of the waste would just go into the-open sewers, which

20 would go to a collection sump, which would be then pumped

21 into a rubber lined pond to be treated. 'And when I say

22 treated I don't mean a fancy treatment system, basically all

23 that we were required to do at the time was to neutralize the

24 acid in the waste so that it "would be acceptable to the

25 cityvs sanitary sewer system.

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In the manufacture of the herbicides,- many of those

wastes, as I've said.before, had the chlorinated

hydrocarbons, which were detrimental and .literally would eat

holes in the liners of our holding ponds. So those were not

sent into the sewers directly. Now, whenever there was a

spill or.a pipe broke, and believe me that was a common

everyday occurrence, it would go in those sewers, but

normally it-was drummed off. And in the case of the Fenac --

THE COURT: Normally it was what?

A . Drummed off. .

THE COURT: You mean put into drums?

A Fifty-five gallon drums. '

THE COURT: All right.

A To which we tried to reclaim a lot of materials to

keep_ the cost of manufacture down.

The material was drummed off, taken to another

vessel, and we tried to reclaim the monochlorobenzene that we

used to strip the impurities out of the product with, those

ended up being called tar, because that's exactly what they

looked like, and they were very aromatic. They would cause

profuse tearing of the eyes, burning of the skin, the fuines

" from it. Those were put in 55-gallon drums and stored on the

site.

When they began to fill in the sludge ponds at thac

plant/ these drums were bulldosed right in and were covered

OFFICIAL COURT REPORTERAR3I9689

•37

.1 with the demolition debris.

2 BY MR. RARRISON:

3 Q All right, let me be clear. The drums of

4 accumulated waste were put into the pond on the site?

5 A Yes.

6 Q And basically covered over?

7 A. Yes.

8 Q All right. So in your opinion, from your experience

9 there, would you expect to find the dioxin contaminant: in the j-

10 soil at the Drake site?

11 A From the period of time that has went by, which has

12 been considerable -- and they were not put into plastic lined

13 drums or anything, they were just a normal steel drum, that

14 had always been my concern. And in discussions with Mr.

15 Hagel had --we had told him exactly where to look for. these

16 drums because the final product that was shipped by Drake, I

17 never suspected to be a major problem because I'm sure that

18 if it would have been Union-Carbide would have been very .

19 upset. So I was concerned about the waste product. That's

20 where I felt the' danger would be at.

21 Q All right. Do you recall, from your knowledge of

22 being an employee on the Drake Chemical site, whether there

23 were ever any explosions on the site?

24' A Yes. - '

25 Q Do you recall the nature of the explosions?

OFFICIAL COURT REPORTER M „

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A Are we talking about . any particular explosion --

Q" Any ones that .come to your mind.

A-- - --: because they were numerous.

Q Not any particular, just as much as you can recall

about explosions.

A . In the manufacture of herbicides, it did cause us

one week and one Sunday to lose probably three quarters of

our plant.

Q Three quarters_of the plant?

A, Yes. It was a massive --

• Q Was it a single explosion?

A It was a massive explosion, huge fireball in the

sky, spread contamination and acid waste and product waste ,

all over the area. The fire companies that came to the scene

had a lot of their material damaged.

The ensuing fire probably wiped out three quarters

of the plant, I would imagine, that would be my guess.

Q So do I understand your testimony that the explosion

caused waste,to be spread all over the site?

" A Yes. And-also, in the -- with the --in respect to

the tars and so forth that we stripped off of the Fenac

compound, that material, the vessel that it was stored in,

somebody inadvertently, allowed a drum of mixed acid, which

was 50 'percent sulfuric and 50 percent nitric acid, to. run

into there, and consequently it decided to formulate another

OFFICIAL COURT REPORTER•™™~ ™ -,.,„,, AR3I969I

39

1 compound which was very explosive, took the top off and again

2 covered the site. It didn't do any damage to the plant

3 itself but it left a black residue all over the property,

4 Q I see. Do you have any personal 'knowledge of•

5 whether the substance phosgene was ever found or would be

6 found on the site?

7 A Yes. When I first started my employ there, it

8 had -- they were just discontinuing operations where they

9 used phosgene as a raw material. They'had ic in the, like a'

10 two ton oval cylinder that they used on site.

11 My memory does not -- I do not know what they were

12 making. I do know that the final steps of it was outdoors

13 because of the fumes. And my only knowledge of it at that

14 time was, when they said phosgene, I said, didn't they use .

15 that during the war, and, you know, yeah.

16 The cylinders were on site. • I cannot honestly state

17 what the disposition of those cylinders were.

18 Q I understand. Do you recall, from-your experience

19 at the site, whether there was any use or presence of a nerve

20 gas-like substance?.

21 A As far as the use, no, I''m not aware of any.

22 However, in -- when EPA submitted the reports from the NUS

23 Corporation of monitoring wells and soil borings that had

24 been done, I normally was in the habit of .going down each of

'25 the compounds to try and see, you know, did we do this, make

OFFICIAL 'COURT REPORTER

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this or didn't we, you know, because we weren't.sure of a lot

of "things. We had a lot of strange names attached to some

pretty nasty chemicals and it wasn't until after we weren't

4 employed there we found out what we were-working with.

'So I would always go down the list. And one of the

soil borings or monitoring wells by our warehouse, I came

across an odd chemical that I could not identify, to which I

went to the Merck. Index to look it up and I was floored.at •

that time because it said that it was a nerve gas, And I

thought, how did that ever get there.

Well, in further reading of the Merck's explanation,

it stated that it can be manufactured; and it gave the list

of the compounds that are-necessary, which were all present

at our plant, but that it can occur in nature by itself if

it's in a," like a .chemical soup, it can start to form

itself.

My first reaction was is I called Mr. Hagel of EPA

and asked him if he was aware of what he had found.

MR. BURNS: Objection, Your fionor, this is a

narrative response. It's not responsive to the question.

that?

THE COURT: All right. What is your view about

MR. HARRISON: Your Honor, 'I think that's a fair

objection and we can follow up with another question.

THE COURT: .Okay. It would be helpful because if


AR3I9693

41

1 something --if there's a question asked which is

2 inappropriate, then there's an opportunity to object. But if

3 it's a narrative statement, then it comes out and it's too

4 late to object.

5 MR. HARRISON: I agree entirely, Your Honor.

6 BY MR. HARRISON:

7 Q So Mr. Furl, if you'll try to contain.your answer to

8 the precise question and then I can follow up if we need

9 additional information.

10 Now, in this particular case, following your inquiry

11 to determine that a nerve gas-like substance was present, did

12 you have occasion to follow up on that discovery with EPA? •

13 A Yes, I did.

14 Q And what did you do?

15 A I contacted Bill Hagel, the project coordinator for

16 the Superfund site.

17 Q With what result?

18 A Which result was to ask him, first of all, if he

19 knew what the compound was, which he had not examined every

20 little detail as he was accustomed to us doing. And-he said

21 no. And I explained it to him. His reply to me was, how did

22 it get .there. And I said, I have no idea. But I asked him

23 to be -- to let the people from NUS know exactly what was

24 there.

25 Q All right.

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MR. HARRISON: We have nothing further from this

witness, Your Honor..

THE COURT: All .right. . You may cross-examine.

CROSS EXAMINATION

BY MR. BURNS:

Q Good morning, Mr. Furl.

A Good morning. -

Q Would you spell out for us the chemical name, of

Fenac? • .

A The .chemical name?

Q Yes.

A .... Do... you want the 2,4,5-tri C-H-L-O-R-O-P-H-E-N-O-L

acetic, A-C-E-T-I-C, A-C-I-D, acid.

Q Mr. Furl, do you know whether it's 2,4,5 or 2,3,6?

A As I came to understand, it can be all. It can

be -- I mean it was a mixture and we isolated specific ones.

2,3,6 was another isomer on that.

Q Of Fenac? .

A Yes.

Q Did you 'get this 'information' from the chemist who

.you were talking to about this information?

A This came from the chemist, -plus the information

that was available, even written literature that was there

at --. in the office itself.

Q The portion of the name that .you just 'spelled out

OFFICIAL COURT REPORTERAR3I9695

43

1 was,'one of the portions was P-H-E-N-0-L?-v

2 A Yes.

3 Q Do you know whether it's P-H-S-N-0-L or

4 P-H-E-N-Y-L?

5 A To the best of my knowledge it was P-H-E-N-O-L, and

6 I know there is a difference. I realize there is a big

7. difference in the name.

8 Q 'How do -you understand 'that difference?

9 A Basically it depends where the --on the molecule

10 itself, the chlorine is attached.

11 Q Does it have anything to do with the attachment of

12 oxygen on the molecule?

13 A That I can't answer.

14 Q Do you know the difference between a hydroxyl group

15 and an acetic acid group?

16 A At this point in time, no, because I've not been'

17 involved with it for ten years. At one time I was -- I

18 understood the different aspects of that..

19 Q Earlier you spoke about spikes in samples of Fenac

20 that were described 'to you as 2,.4-D and 2 r 4,5-T, is that

21 correct?

22 A Yes.

23 Q Would you spell out those names?

24 A 2,4-D would be 2,4-dichlorophenol and 2, 4, 5-T was

25 the -- trichlorophenoxy acetic acid.

I

tOFFICIAL COURT REPORTER

flR3!9696

44

.1 Q- What concentration in the Fenac was accounted for fay

2 these spikes? . . - . .

3 A Our, our standards for a good batch to be sent to

4 Union-Carbide .was that Fenac .must be 80 percent of. the isomer

5 that they wanted. . .

6 Q What isomer was that?

7, A And that would be either the 2,3,6 or the 2f4,5f the

8 phenol, not the phenoxy. And a lot of times our batches

9 would be, maybe 40 percent pure, 50 percent pure, and it would

10 all depend upon how the .process had been run. And then, in

11 all honesty, who had run.the process through, because we

12 nitrated it, and if it wasn't done properly, at.the proper

13 temperatures, we did not get the yield that we needed.

14 So as far as to answer your question, what the

15 spikes on there, it would all depend upon the purity.

16 Sometimes they were. There was occasions, one or two that I

17 ' can.think of, that we had a yield, the isomer we were looking

18 for was like 20 percent, and the other spikes, it' looked like

19 we were setting out to manufacture them.

20 Q You earlier described 2,4,5-T as something, I

21 believe you said, silvex?

22 A Yes.

'23 Q Would you spell that for us, please?

24 A S-I-L-I-V-E-X, I. believe. .Silvex. I'm not the best

25 speller in the world some days with these names.

OFFICIAL COURT. REPORTER

'45

1 Q What color was Fenac when it contained impurities?

2 A It would be orange, pale yellow to orange, depending

3 upon the amount of impurities. Pure Fenac would-be white.

4 Q Thank you. To your knowledge -was Agent Orange.ever

5 made at this site?

6 A To my knowledge, no.

7 Q You worked at the site from I believe you said the

8 middle of 1970s until, for about'a five year period, 'is that

9 right?

10 A Yes.

11 - Q And in your work with the citizen group, did you

12 have occasion to review production records for a larger

13 period than the time you 'worked at the site?

14 A Yes.

15 Q Couldn't a layperson observer looking at an impure

16 sample of Fenac that was orange in color mistake that for

17 Agent Orange? t . -

18 A Yes, and I can --

19 Q Thank you. Are you aware of anything ever being

20 made for the government at the Drake site?

21 A No.

22 Q When you reviewed the Merck Index that you

23 referenced earlier with regard to the compound that was found

24 in the monitoring well? " ,

25 'A Yes.

OFFICIAL.COURT REPORTERAR3I9698

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Q Based.on your reviewJof that, did you reach the

conclusion"that it would have arisen there as a result of the

chemical soup that was present in the lagoon?

A Yes, that was the explanation, that was the only-one

that could-be, because the compound itself, I had never seen

anything ever, being manufactured on that site by that name.

Q Thank you. Is there a common name for the term

phosgene that you used earlier?. . - - _ - 4

-A No. That's all I had ever known it by was just

phosgene.- . ; . ' . .

Q Now, you spoke earlier about a concern that you

expressed to EPA about the possible presence of dioxins on-

the site.

.A Yes.

Q To your recollection did EPA act on that concern?

A Yes.

Q Do you recall what EPA's conclusions were?

A The conclusions. -- the- first conclusions were that

there was not dioxin present. When the dioxin task force

came through and took samples, then it was present. It was

present in the buildings but I have not seen any lab results

showing any of the studies made as*.far as any of the debris

or anything that was dug up on the site, so I don't know

whether any was discovered there.

Q' I'd like to show the witness plaintiffs' exhibit


AR3I9699

47

1 number 2.

2 Would you just take a moment and familiarize

3 yourself with that document

4 (Pause.)

5 Q Thank you. Do you recognize this document? Have

6 you seen it before?

7 A No. May I ask -- I don't-see a date on this. I

8 just -- just curious. I don't see a date.

9 Q We discussed the date yesterday and I believe

10 reached the conclusion it was a 1984 document.

11 THE COURT: That's not quite what Mr. Schrock said..

12 He said it's probably 1984.

13 BY MR. BURNS:

14 Q Have you read this document sitting here .just now?

15 A Yeah, I've looked down through it.

16 Q In the --in the fourth paragraph under the heading

17 Analytical Data, the third sentence of that paragraph

18 beginning on the third line,' would you read that sentence.

19 aloud, please?

20 A (Reading.) A study of the data indicates no

21 indication of presence of 2,3,7,8-TCDD. in the soils and

22 sludges and also no anomalies in the data. (End of reading.)

23 Q Does that indicate to.you, sir, that EPA did examine

24- the site for the presence of dioxin in the soils and found

25 none?

OFFICIAL COURT REPORTERAR319700

48

1 A Yes, at that time, yes.

2 Q -Thank you. During your.work with.the citizen

organization, did you have occasion to observe some file r

cabinets, that were sealed in a building on the 'site?

5 A As you worded that, no.

•6 Q ' Did you observe file cabinets on the site at all?

7 A Yes.'

8 Q Could you describe those, please?

9 A I had been on the site in contamination gear with

10 EPA^ and the file cabinets /that I saw on the site were files•

11 that were in.Mr., Dyon's (phonetic) office and in that area.

12 I was not in the trailer area.

13 Q Did you ever observe the contents of those file

14 cabinets? -

15 A" Yes. When they were removed from the site to the

16 Clinton County --it was actually at that time the civil

17 defense area where they also have their communications

18 center, ..that's where they were stored, and I was asked to go

19 through and to help copy all'of the documents there.

20 Q Had you reviewed those documents when you -- I'll

21 withdraw the question.

22 . Are you familiar with the citizen organization by

23 the name of. Arrest the Incinerator Remediation, Incorporated?

24 A '-Yes. -

25 " Q ^Have you ever been invited to join or otherwise

OFFICIAL COURT REPORTER- SR3I970

49

1 participate with this group?

2 A Yes.

3 Q Did you accept the invitation?

4 A No. .

5 Q Have you heard claims by people in the area that

6 Agent Orange was made at this site?

7 A Yes.

8 Q Based on your knowledge and experience at the site,

9 what is your view of-those claims?

10 A My personal view is that they're mistaken. I've

11 never, in all of my investigation and work with it, I've

12 never found any'direct link that says that they specifically

13 made, quote unquote, Agent Orange.

14 I can further explain why many people felt we did.

15 And that was basically because the employees from day one,

16 when we first started to make Fenac and that, it was orange,

17 another herbicide that we made, it was orange, and when there

18 was all the hoopla in the papers about Agent Orange but

19 nobody ever told them what Agent Orange was,, they just said

20 Agent Orange, so everything that was orange, everybody

21 immediately suspected of being that.

22 Q And so these people who worked at the site were

23 uneducated in terms'of the actual chemistry of the substances

24 being.made?

25 A . Many of them were.

OFFICIAL COURT REPORTER fl R 1 I Q 7 fi ?

so

1

2

3

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5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Q Many of them were?.

A Yeah, as far as the actual production workers

themselves." " - , ~ ." -~~"

Q "Based on yo'ur knowledge of the site and your

activities in the citizen organization that you were a part

of, ""do" you think the site should be- cleaned up without

further delay?.

MR. HARRISON: Excuse me. Your Honor. ,

THE COURT: Yes, sir.

MR. HARRISON: I believe that' s- outside the scope of

direct

THE COURT: What's your view about it?

MR. BURNS: Our 'view is. Your Honor, that the

witness has been asked about contamination present on the

site, and that's within the scope of direct, and he probably

has a view about the subject.

THE COURT: I've already heard you. I'm. about to

rule in your favor. • . .

MR. HARRISON: Thank you. Your Honor.

THE COURT: If you want to say something, I'll

listen to it.

<. MR'. HARRISON: That's fine.

THE COURT: I do think it's inappropriate and will

sustain the objection.

BY MR. BURNS:

OFFICIAL COURT REPORTER319703

o j.

1 Q Mr. Furl, did you testify today voluntarily or were

2 you subpoenaed? • .. .

3 A , I was-subpoenaed. _. .

4 MR. BURNS: Thank you. I have .nothing further.

5 THE COURT: All right, sir,

6 Do' you have any redirect?

7 MR. HARRISON: Just a few points, Your Honor.

8 THE COURT: Go ahead.

9 REDIRECT EXAMINATION

10 BY MR. HARRISON:

11 Q Mr. Furl, you were asked on cross about the

12 concentrations of 2,4-D and other impurities in the Fenac

13 product.

14 A Yes.

15 Q And you identified some batches were substantially

16 impure?

17 A Yes.

18 Q Do you know what happened with those batches that

19 were impure?

20 A Those batches would have --.actually the impurities

21 would have been stripped out with monochlorobenzene'and would

22 have ended up in the 'drums of tar.

23 Q ' All right. . These were the same drums you testified

24 earlier eventually went into the pond on site?

25 A Yes.


flR3i970f*

5

6

7

9

10

11

.12

13

14

15

16"

17

18'

19

20

21

22

24

25

Q All right. Now, you were asked whether Agent Orange'

was manufactured at the site and you gave your answer. Is it

your position that the employees were always informed by .

management as to what was happening at the site in terms .of

chemicals used?

A . No.

Q So your answer is they were not always informed?

A No, they were not.

Q All right. Did employees .ever take any action

against the company based in part on that concern?

A Yes.

Q And what action was that?

A I'm trying to- think of the time frame. I'm going

back, reaching a little, I would say approximately 1975, I

was instrumental in organizing the plant and putting the

teamster's union in. '

• • And we filed various complaints with OSHA concerning

the product in the .manufacturing at the plant, to which OSHA

did respond. One .of our concerns was Sronner's acid, which

we manufactured, because in reviewing some of the literature

on Bronner's acid and looking at OSHA's standards, we

realized that beta-Naphthylamine and Bronner's acid were --

they looked very much alike. And we were concerned that

BNA -- I'm sorry, beta-Naphthylamine was being produced as a

by-product. •


- AR3I9705

O J

1 Q .All right, let me .interrupt.' At that time was•"

J A NO.

4 Q Why not?

5 A It had been banned in the state back in the 1960s.

6 Q All right. Proceed with your answer if you had

7 more.

S A Okay. To which OSHA said that there was a very good

9 possibility that this could be occurring, and that it

10 warranted further studies. And their answer to these further

11 studies in reality never came until after-the. plant was

12 closed.

13 Q So is it your conclusion -- what is your conclusion

14 about the possibility that there may have been contamiriants

15 in the products that the company did not inform the'employees

16, about? Could that have happened?

17 • A Yes. .

18 Q All right. Let me. show you the plaintiffs' exhibit

19 2 that you were just shown on cross, or do you have a copy

20 still?

21 A There's a copy still here.

22 Q If you'll examine that. If you'll direct your

23 attention to the first paragraph under the Background

24 heading?

25 • A Yes.


AR3I9706

2

3

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5

,6"

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22.

23

24

25

Q And if you would read that again for your own

benefit and for the record. "If'you'd read it out loud,

please? " " ~"~~ " • • • ,

A Okay. (Reading.) Drake Chemicals was originally on

the reg;ion 3 dioxin' listing as a tier 6 site because of itsV

listing is,the EPA.publication Dioxins. Information

available revealed that Drake Chemicals at one time

manufactured 2,5-trichlorophenol and therefore was -- {End'of

reading.

THE COURT: . Sir, I don't believe you read that

correct. It's 2,4,5.

A I'm sorry. (Reading.) 2,4,5-trichlorophenol.and

therefore was more correctly identified as a tier 1 dioxin

site. (End of reading.)

BY MR. HARRISON: . ' . .

Q Now, do you see the reference there that says Drake

Chemicals at one time, manufactured 2,4,5-trichlorophenol?

A Yes.

Q Does that surprise you?

A No,

Q So do you know whether in fact that occurred?

A I would believe that it had..

Q . All right.- -

A Mostly because there was a.lot of different -- so

many different isomers of that same product.


AR3I9707

1 Q Now, on that same document, if you could pick it up

2 one more time, plaintiffs' exhibit number 2. You were

3 directed to the text referring to testing,for 2,3,7,8-TCDD.

4 Do you recall that?

5 A Yes, in the Analytical Data?

6 Q Yes, thank you, that's where that is in that

7 document.

8 Now, can you conclude from that paragraph -- you

9 were asked by counsel for EPA whether this seemed to indicate

10 that EPA had tested for dioxin and not found it. Does this

11 document, give you any indication of the, presence or absence

12 of the types of dioxins or furans other than 2,3,7,8-TCDD?

13 MR. BURNS: Objection, Your Honor, there is no

14 foundation for this question. The witness, again, is not a

15 chemist and tHis calls for specialized knowledge in the area

16 of chemistry.

17 THE COURT: Well, I thought it was, a question

18 relating to the document itself. I could be. wrong about

19 that. Read back the question, will you please?

20 (Question read.) , '

21 THE COURT: I don't see that you have to be a

22 graduate chemist to answer that question, so I'll overrule

23 the objection. . -


25 BY MR. HARRISON:


RR3I9708

56

Q Do'you recall the question,. Mr. Furl, or should I

restate, it? . ....._ - ... .. . .-..„. _ .r_."."l.""... -l..."._'_.,....... ..

A --Yes, I understand what you're saying.

- ' What this document is saying that the 2,3,7,8-TCDD,

that's what they looked "for-. That's what they didn't find,

but it doesn'-t.say whether they looked for the other forms of

dioxin.. '

, Q All right. You were asked by counsel for EPA

9 whether.-- .or you were, asked about the filing cabinets on the

10 site and .how they were disposed of. Do you recall that?

11 A (Witness nods.)

12 Q Within your personal knowledge can you say with

13 certainty whether any of the documents retained on the Drake

14 site'during your tenure were ever classified by the federal,

15 government .or removed from the site?

16 . MR. BURNS: Objection, leading.

17 . MR. HARRISON: I don't know the answer, Your Honor.

18 . THE COURT: \I don't see that it's leading. I can't

19 tell whether he thinks it should be answered one way or

20 another. So I'll overrule the objection. You may-answer it,

21 sir. - - ' . - -

22 A .I'm not aware of any of them being, quote unquote,

23 classified by .anybody. I know there was' a problem because

24 our group also wanted the records off because -we didn't know

25 everybody that had ever worked there. And to get them

______________ . _______________________;_________________„——.———OFFICIAL COURT REPORTER

AR3I9709

57

included into a screening we had to have'access. And there

was a big question between the Department of Health, DER, and

3 Environmental Protection Agency as are these filesi • •- • --s •4 ] contaminated, so forth, et cetera, but they eventually did go

off site. - "

BY MR. HARRISON:

Q I understand. I.guess what I'm trying to get at is,

do you know with your personal knowledge what happened to all

the records that were on' the site at one point? Do you know

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

what eventually happened to them?

A To the .best of my knowledge all of .the files, that

were on site were taken and stored at the county facility.

Q r understand. But my question is, would you know if

someone removed some of those files?

A No.

Q t Okay.

MR. HARRISON: Nothing further, Your Honor.

THE COURT: Any recross?

MR. BURNS: Yes, Your Honor. I'll be very brief.

THE COURT: Okay.

RECROSS EXAMINATION

BY MR. BURNS:

Q Mr. Furl, going back to the file cabinet documents.

Isn't it possible that those were needed by EPA for its

investigation? .


A R 3 I 9 7 I O

58

'•••1

2

3-

A ' Yes, that's'entirely possible.' -

Q Did anyone at EPA ever indicate to you that that was

the nature.of their need .for the documents?

A I have been told by Mr. Hagelr that the documents --

because we were'concerned about getting -- basically all I

was concerned about at that point in time was-getting a list

of former employees. That was my main concern.

„ Q Thank you. Did you in fact get access to those

9 documents.? ' - - - - -'

10 A , Yes. -

11 Q ' . Now, going back to the impurities in Fenac, we were

12 discussing earlier the -- there were a wide variety of

13 impurities, weren't there? It was not all 2,4-D and 2,4,5-T?

14 "A Correct.

15 Q - Can you define isomer?f

16 A " Right off -- no, I -- I'm not going to attempt it,

17 I understand it but I cannot explain it.

18' ' MR. BURNS: Thank you. I have nothing further.

19 THE COURT: All right. Before -- you may step down,

20 sir, and you may be excused. Thank "you very much, Mr. Furl.

21 I would ask both counsel this and you may not know *

22 the answer to it, but we'd like'you .to inquire about it.

23 We've received proposed findings of fact'from the government,.

24 which are substantial. I think they run -- let me get the

25 correct figure here -- well, at least ISO paragraphs. And

. ' . . . - OFFICIAL COURT REPdRTER

:/./;;:::;::;"•;:::::-; - AR3I97I i

APPENDIX C

flR3l97!2

CLINTON COUNTY COMMRS ID = 71789340? JflNU'SS 12 :35 No ;001" P .02

ittMtrr KIc*NiTd*«u tews wttOL*

b. MMNtTON WU f JUN K UK iww

Jwuwy 13, 1998

The Honorable Carol M. BrowucrAdministrtttcrEnviromntaal Protection Agency401 M Start

dznimctxator

I am writing to you conconlUK (be ongoing remediation or the DmkeSup«fund site iu lick Haven* Pennsylvania.

A* yoo ksww, at the i*que*r of Sen«tnr Rftntnnim and myselt; the HnvironmantftlPtx>tflcilon Agency's national ombudsman* Robert Martin, chaired 4 public meeting regardingthe Drake Cbwnkal S scrfuisl site <m September 19, 1990. On October 3, 1996, 1 wrote yourequoiti&$ that Mr. Mania submit a formal report on hia thoughto concerning th* iioues raised attin public meeting. I r*c«iv«d the interim copy of this report on August 19, 1997 and understandthnt ihfi Hnnl copy ot'the report will be rtUasod ID Match of thil year.

I aro iafijTtafid that yo\u- agcacy intends to allow operation of the incinerator at thisSuptduad ait* in Ftbnatry, nocwi etanfiing the numetouc htafth eoncernt that have arisen withthe operation of an mdnenrtor n» T /»cV Haven, t believe it is inappropriate m begin furthertemediatioa before the final Ombudsman icport Is released particularly if the report sheds new

lingly,! rtqiiMt that no further cleanup activity occur at this Superfund site untilthe Environmental Protection Agency releases Mr. Martin's f nal report and all interested partie*sra able to analyze die recommendation*.

Aa alwayv, I appreciate your prompt aisifttncc on this matter.

Sincerely,

AS/Vwn

SR3I97I3

APPENDIX D

AR3I97U


The Honorable Alien SpecterCommittee on AppropriationsUnited States SenateWashington, D.C. 20510-6025

Dear Senator Specter:

Your Letter to Administrator Carol Browner, dated January 13, 1998, requesting a delay inthe operation of the incinerator at the Drake Chemical Superfund Site, was referred to us for aresponse. We wish to thank you for your inquiry and advise you that we have given your requestpriority consideration. However, after carefully reviewing all of the facts surrounding this matterwe regret to inform you that we are not able to comply with the request to postpone the scheduleset for operation of the incinerator.

Our decision to proceed with the Superfund process at the Drake Chemical SuperfundSite is based on the best information available to us. As you know, Regional personnel have hadsubstantial involvement in all aspects of this matter and are most familiar with risks associatedwith the operation of the incinerator. In November of 1997, the Region completed a riskassessment which evaluates the potential human health and ecological, risks associated with full-scale operation of the incinerator. This risk assessment indicates that there are no significantrisks associated with the full-scale operation of the incinerator while it is destroying the highlycontaminated soils and sludges found at the Site. The Region has released the risk assessmentfor public review, and the risk assessment has also undergone peer review by a panel ofindependent scientists. In addition, the Agency for Toxic Substances and Disease Registry(ATSDR) has reviewed the risk assessment, and indicated its preliminary conclusion that theremedial cleanup burn is not likely to create exposures to incinerator emissions which wouldresult in adverse health effects. The draft Ombudsman's report, issued by Bob Martin, hasalready been reviewed. The Agency wishes to stress, however, that while it is proceeding with.the Superfund process, it still has not made its final decision to proceed with the actualincineration of the contaminated soils and it will consider all the above information, the results ofthe public meeting held on February 10, 1998, in Lock Haven, Pennsylvania, and consider anypublic comments before deciding whether it is safe to proceed with incinerating the contaminatedDrake Site soils. '

A R 3 I 9 7 I 5Pintec & Zec-scted Pscer

EPA's decision to proceed forward with the Drake Site incineration process does take -into consideration a review of iVfr..Martin's Draft Final Report on the Drake Chemical SuperftindSite"(August'8,. 1997). Perhaps putting Mr. Martin's report in its proper context would providesqme additional .background on Why it is undesirable to hold up the decision on start-up of the '.contaminated hazardous waste and Superfund soil burn at this point.

Mr. Martin is the Agency's Ombudsman. -This Ombudsman function was meant toaugment the Agency's already significant commitment to community involvement in and accessto the Superfund decision-making process. Most important, the communication function of theOmbudsman is not, nor was it ever meant to be, part of the critical path in the site cleanupdecision-making process. Nonetheless, the Superfund program'vaiues the information providedby Mr. Martin, and believes that it has fully responded to questions raised in his draft report, andwill continue to respond to any further issues raised by his office.

In the case of the Drake Chemical Superfund Site, Mr. Martin completed a draft of hisSurvey of community issues concerning the Site in May of 1997, We responded to the report andthe questions raised in the report in June of 1997. These responses were provided to the publicas well. It should be noted that many of .the issues documented in Mr. Martin's draft report hadbeen previously addressed by the Regional office through other mechanisms, such as independentinvestigations and public meetings. The Region had also issued a Technical Assistance Grant tothe community and with that grant money the community hired its own expert who was on Sitethroughout much of the trial burn stage of the incinerator project. Any issues raised by thatindependent expert were addressed during that phase-of the project.

As noted above, Mr. Martin issued his draft report nine months ago and we responded'tothe questions raised. In September of 1996, EPA explained the results of its June 1996 riskassessment for the trial burn, at a public meeting in Lock Haven. At that meeting, Mr. Martintold members of the audience he would look into questions some raised at the meeting. In Mayof 1997 he issued his draft report From the time of that 1996 public meeting to the present, tothe besr of our knowledge, Mr. Martin has not even interviewed or consulted with the key EPAor contractor personnel who are actually running the incineration cleanup project. We haverequested that Mr, Martin hold a public meeting on bis report, both in an effort to close the loopon any outstanding issues regarding the operation of rhe incinerator and to avoid amisunderstanding that the final report is critical to the decision to start incinerating thecontaminated soils at the Site. We are now faced with a cleanup schedule that calls for adecision to start the actual remedial cleanup bum or not within the next few weeks.

You may recall that the original cleanup schedule for completion of the incineration ofrhe contaminated soils at the Site was February 1998. For a variety of reasons, including endlesslitigation and die fact that the Agency wanted to address ail reasonable questions raisedconcerning .the safety" oFthe incinerator project, that schedule was act met. We believe that theoperation and public health issues that have been raised about the incineration remediation

AR3197I6

project had been addressed and that the incinerator can be operated safely without harm to thepublic or the environment. We reiterate, however, that Mr. Martin's draft report raised no issuethat we could discern which pertained to the existence oFa potential threat to the public as aresult of the operation oFthe incinerator during cleanup oFthe soils. The Superfund decisionmaking process For the ultimate cleanup oFthe Drake Site should not be delayed at this pointbecause Mr. Martin's report is still considered a draft. OF course, once Mr, Martin's report isdeemed complete, the Agency will carefully review it and take any appropriate^ action.

We are sorry that we cannot comply with your request at this time. However, should youhave any questions regarding this decision, please feel free to contact us directly.

Sincerely,

TT Jj* * // //

Ids, Jr.Acting Assistant Administ&torOffice of Solid Waste and Emergency Response

W. Michael MKCsbeRegional AdministratorReaion III

A R 3 I 9 7 I 7

united states environmental protection agency … · to: timothy fields, jr., acting assistant...

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