Review of the Agreement to Conduct Studies, Scope of Work and

FDEP Memorandum of Understanding

September 1, 2000

Pi-Pa-Tag Board of Directors and members:

Withdrawing the Consent Decree for the Stauffer Chemical Superfund Site in Tarpon Springs, FL. is an important act in this cleanup process. This is an extraordinary event and a credit to the character of Congressman Bilirakis, Ombudsman Martin, and Secretary Struhs.

However, it is not possible to make progress forward by moving backward. This step backward, to where we were this time last year, still leaves the community with a Record of Decision where cleanup of contaminates is vague, the borders of contamination are not logically drawn, and the remedy calls for a technique of dubious safety.

We conclude, after careful study of the documents provided by the EPA, that this cleanup is actually proceeding without a legal Consent Decree. While our position is admittedly pessimistic, we believe that a literal reading of the documents supports just this one conclusion.

On behalf of Pi-PA-Tag and the community we have reviewed the “Agreement to Conduct Studies to Include: Geophysical, Studies, Treatability Studies, and Groundwater Characterization Studies,” signed August 20, 2000 (the “AGREEMENT”); the appended “Scope of Work,” (undated); and the attached “Superfund Memorandum of Understanding Between the Florida Department of Environmental Protection and the U.S. Environmental Protection Agency, Region 4” effective July 28, 2000. Unfortunately, these documents contradict one another on several points, omit important studies, and supplant earlier commitments to the community. In fact, Atkemix Thirty-seven, Inc. is given the “green light” to implement the “Mound and Cover” remedy through demolition, grading, and site preparation regardless of the outcome of any study and without a Consent Decree signed by the Department of Justice.

The remedy criteria under Superfund are:

            Cost Effectiveness

            Meets All Laws

            Implementation

Reduction of toxicity, mobility or volume

            Protectiveness of Human Health and the Environment

            Short-term Effectiveness

            Long-term Effectiveness

            State Acceptance

            Community Acceptance

The existing Record of Decision (ROD) has failed outright on state and community acceptance. Implementability is called in question by both the Shattuck decision and geophysical experts. Protectiveness of the environment and any reduction in toxicity has not been demonstrated by any study. In fact, the plan was, and still is, to implement the treatment and then see if any protectiveness is obtained. Long-term effectiveness is in doubt based on testimony during the Ombudsman Town Hall meetings. Short-term effectiveness is nonexistent since the site is known to pollute the Anclote River. This new Scope of Work does not address these issues adequately or, in some cases, at all. In many instances there are nonsensical contradictions within the Scope of Work and between the Scope of Work and the ForidaDepartment of Environmental Protection - Memorandum of Understanding.

The following discrepancies between the three documents sent for review are noted to the attention of the Pi-Pa-Tag Board of Directors and its members:

1)     Fate and transport of solutes and plume analysis are not covered by the Scope of Work. A note on page 3, following Site Objective 10 of the Scope of Work, specifically excludes all groundwater effects on the Anclote Rriver. The report states that “The determination of the offsite extent of groundwater contamination…” will not be performed as part of this Scope of Work [Emphasis added]. “Offsite extent” is another term for “plume” so plumes are not evaluated within this Scope of Work.  Note the following contradiction: Page 3 of the FDEP Memorandum of Understanding, subsection C.2: “This characterization will also determine the potential migration of groundwater in the aquifers to offsite areas.” [Emphasis added]. Clearly, the Florida Department of Environmental Protection Superfund Memorandum of Understanding says one thing; the Scope of Work says something entirely different.

2)     Repeatedly, the Scope of Work and Memorandum of Understanding qualify all groundwater work with a phrase that limits studies to only those that directly relate to in situ stabilization or Mound and Cover. For example:

a.      “The purpose of the groundwater studies described in this order are to address groundwater only to the extent that it impacts the effectiveness of the selected remedy.” (Note following Site Objective 10, page 3 of the Scope of Work. [Emphasis Added].)

b.     “The respondents shall prepare a plan for evaluating the groundwater characteristics in those aquifers, and the hydraulic communication between those aquifers under all reasonably anticipated Site conditions over the long-term to the extent these groundwater issues impact the effectiveness of the selected remedy.” (Task II Studies, Page 7 of the Scope of Work.  [Emphasis Added].)

c.      “Under the enforceable agreement, groundwater in the surficial and Floridian aquifers will be evaluated to determine its flow characteristics and any connectivity between aquifers as it pertains to the effectiveness of the source control remedy.” (FDEP Memorandum of Understanding, C.1, Page 3. [Emphasis Added].)

These qualifying comments render null and void much of the characterization expected by the community, or leave groundwater characterization to be performed under the non-existent Operable Unit 2 Remedial Investigation.

3)     Task II, Studies Section 1. g. directs Atkemix Thirty-seven, Inc. to initiate the remedy selected in the  ROD: “A description of any necessary Site preparation work which may include building demolition, relocation of utilities, clearing, grubbing and grading.” Clearly there is no interest on the part of Region 4 EPA in waiting for the results of any study as part of the FDEP Memorandum of Understanding, Scope of Work, or Operable Unit 2 Remedial Investigation.

4)     Objective 9, on page 3 of the Scope of Work directs Atkemix Thirty-seven, Inc.  to commence demolition activities consistent with the Mound and Cover implementation of the Record of Decision: “The Respondents (Atkemix Thirty-seven, Inc.) may commence demolition activities…” Since no Consent Decree has been signed by the Department of Justice, moving forward with remedial actions may not be legal.

5)     Since the ROD is still in place this Scope of Work is, in fact, merely a Remedial Design phase. Previously, Region 4 has promised the community that documents related to the Remedial Design phase would be reviewed and commented on by the community, no such inclusion is made in the Scope of Work or the Memorandum of Understanding.

6)     The Black and Veatch Data Evaluation Report (May 8, 2000) is incorporated by reference on page 2 of the FDEP Memorandum of Understanding. Specifically, the evaluation of geology as conducted within the Scope of Work is directed to address “data gaps” identified in the Black and Veatch report.  However, the Black and Veatch report was by no means comprehensive. The following discrepancies in the Black and Veatch report are noted to the attention of the Pi-Pa-Tag Board and members:

a.      The report failed to consider well-known incidents of ground subsidence in foundations around the site.

b.     The report states on report page 9 that a 1987 Geophysical survey was “unsuccessful due to proximity of saline groundwater.” However the 1987 report does not state that in fact. The 1987 report clearly indicates that anomalies found in the Pond 47 area appeared to be a buried drum field and potential plume, and that further investigation was needed.

c.      The report fails to emphasize a hydraulic connection between the river and the surficial aquifer, and a hydraulic connection between the surficial and Floridian aquifer; both of which are adequately described in the Remedial Investigation. This connection is important to consider in any in situ remedy, but will be ignored in this Scope of Work since that is an Operable Unit 2 research function.

7)     There is a reference to effects of buried drums on the remedy in Task II, Ssection C., on page 10 of the Scope of Work. However it is very unclear if there is to be remediation of the drums, or only if it is to be determined if drums will interfere with the in situ stabilization. Either way, it does not appear that sampling is planned, since no such sampling activity is discussed under the Statement of Work Task I, Scoping, or within the Task II, Studies, Section 3., Sampling and Analysis Plan. Nor was any such buried drum sampling characterization indicated anywhere within the FDEP Memorandum of Understanding.

8)     The monthly progress reports defined on page 7, Section VII D., of the AGREEMENT will be not be made available to either the state or the community as a matter of right by this agreement. Further, there is a simple “loophole” provided in this agreement allowing Region 4 EPA to exclude from state and public scrutiny any information that does not agree with the Mound and Cover remedy. The FDEP Memorandum of Understanding, on page 9 C, defines as mandatory deliverables only the three reports in the Scope of Work, Task II C. Studies Reports Section. No reports are mandated for community oversight. However, Section XII. Confidentiality of Submissions, on page 12 of the AGREEMENT indicates progress and other reports may be kept confidential if they do not contain raw data. The community should note the extreme difficulty in obtaining correspondence between Region 4 and any PRP when the written correspondence provides information contrary to Region 4’s chosen remedies. Other communities in Region 4 have required litigation to force memoranda covered by such loopholes as this.

9)     There is no provision anywhere within this document for performing the Operable Unit 2 studies, either concurrently or even timely. However, much of the data desired by the community is to be performed under the Operable Unit 2. Note on page 4 of the FDEP Memorandum of Understanding, and elsewhere, “Existing groundwater contamination and selection of appropriate remedies will be addressed in Operable Unit 2 as expeditiously as possible.” This is no different than before the submission of the Consent Decree. According to the text of the Statement of Work, the ROD remedy of in situ stabilization with Mound and Cover will proceed unchecked, and then any impacts will be evaluated under Operable Unit 2.

10)    The attention of the community is directed to Page 3 of the AGREEMENT, Section IV. EPA’s Findings of Facts, subsection D: “In accordance with 40 CFR 264(b)(7)(ii)(E), phosphate slag is a solid waste but not a hazardous waste.” [Emphasis added]. The original Feasibility Study cost estimates treated all of the slag as radioactive waste. This designation was the basis for removal to be dropped as a potential remedy. The designation has been questioned formally several times during this process, both in writing and in public meetings. Region 4 has always insisted the slag was too toxic to move and too toxic to be anywhere but in a special waste facility or in a Tarpon Springs neighborhood. Now that cleanup has begun, Region 4 has declared the material to be a solid waste, and will not require any treatment other than bulldozing onto a corner of the site. Clearly, Region 4 has planned this move for years and has been completely untruthful with the community.

To be sure, Congressman Bilirakis, Ombudsman Martin and Secretary Struhs have expended a tremendous amount of time and effort on behalf of the Tarpon Springs community. We have not seen such dedication on the part of public officials at any other site in Florida or Georgia. Their unprecedented coordination created the leverage that brought about the withdrawal of the Consent Decree.  But, brinkmanship has not reopened the ROD, and withdrawal of the Consent Decree appears to be a deception.

What if? What if the Consent Decree was signed? Atkemix Thirty-seven, Inc. and EPA would now be proceeding with demolition and site grading. Atkemix Thirty-seven, Inc. and EPA would be testing concrete formulations for the stabilization. Atkemix Thirty-seven, Inc. and EPA would be selecting areas for the mounds. However, the Consent Decree was not signed, and yet, Atkemix Thirty-seven, Inc. and EPA are proceeding with this remedy exactly as if it were.

Since we are not lawyers we cannot make a legal recommendation. It is by no means clear if site activities planned within the Statement of Work, but without a Consent Decree, are legitimate. Perhaps, Pi-Pa-Tag should seek a legal opinion as to whether or not remedy implementation activities without a Consent Decree constitutes an illegal activity under CERCLA/SARA law.

We recommend the Pi-Pa-Tag Board continue to urge the EPA to reopen the ROD and insist EPA treat the geophysical studies as a genuine Remedial Investigation with a new formal public commentary period. We recommend that Pi-Pa-Tag require that all non-characterization activities at the site be suspended until safety is assured. We suggest that Pi-Pa-Tag urge EPA to fulfill its earlier promises to provide community access and oversight of documents. Further, we submit to Pi-Pa-Tag, that to exclude studies on any plumes to the Anclote River renders this Scope of Work frivolous and unscientific. Finally, we fail to see how this document-- with its contradictions, loopholes, and missing elements-- can serve to restore the community’s faith in this the EPA. Overall, despite the Congressman’s, Ombudsman’s and Secretary’s strong efforts, this document appears to be EPA Region 4 business as usual.

Sincerely,

Dr. R. Kevin Pegg                                                       Dr. Mary Starnes Saunders