HUNSUCKER EPA Region 5 Records Ctr. GOODSTEIN David A ... · EPA Region 5 Records Ctr. 371036 David A. Rabbino Attorney Phone: 925-299-5128 [email protected] Octobers, 2010 VIA

HUNSUCKER GOODSTEIN & NELSON PC H G N L A W . C O M

EPA Region 5 Records Ctr.

371036

David A. Rabbino Attorney

Phone: 925-299-5128 [email protected]

Octobers, 2010

VIA E-MAIL AND FEDERAL EXPRESS

Richard Murawski Office of Regional Counsel U.S. Environmental Protection Agency Region V, Mail Code C-14J 77 West Jackson Blvd. Chicago, IL 60604-3507

James Hahnenberg Superfund Division U.S. Environmental Protection Agency Region V, Mail Code SR06J 11 West Jackson Blvd. Chicago, IL 60604-3507

Re: Lower Fox River and Green Bay Superfund Site - Comments for the Administrative Record on the Explanation of Significant Differences Dated February 25. 2010

Dear Messrs. Murawski and Hahnenberg:

I. Introduction

We represent the Menasha Corporation ("Menasha"), one of the PRPs at the Lower Fox River and Green Bay Superfund Site. On February 25, 2010, without advance notice or opportunity for public comment, the U.S. Environmental Protection Agency ("EPA") issued an Explanation of Significant Differences ("ESD") modifying the remedy selected for OUs 2-5 at the Fox River Site.^ We have reviewed the ESD, the Criteria Analysis Memorandum ("CAM") that accompanied the ESD, and the documents listed in the Administrative Record as supporting the ESD.^ As will be discussed below, Menasha believes:

a) the cost change provided in the ESD was so significant it was required to be accomplished through an amendment to the Record of Decision ("ROD");

^ http://www.eDa.aov/reqion5/sites/foxriver/pdf/foxriver esd 201002.pdf

^ Until now, we have been unable to subnnit these comments because: (1) the ESD referred to documents that were contained in the Administrative Record but not otherwise available online; and, (2) the ESD cross-referenced documents that were not contained in the Administrative Record at all. EPA Region 5 took several months to provide these documents. The last of these documents arrived on or about September 14, 2010. We submit these comments now having had the opportunity to finally review all of these documents.

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3717 Mt. Diablo Blvd., Suite 200, Lafayette, CA 94549 Tel: 925-284-0840 Fax: 925-284-0870 San Francisco Bay Area • Washington, DC • Los Angeles • Indianapolis, Indiana

mailto:[email protected]

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b) even if the use of an ESD had been permitted, EPA should have provided a public comment period given the public interest in the Lower Fox River and Green Bay Superfund Site;

c) the remedy, as modified by the ESD, is not supported by the Administrative Record, and therefore, is not compliant with the National Contingency Plan ("NCP");

d) the rationale in the ESD is inconsistent with the rationale set forth in the 2007 ROD Amendment; and,

e) there continues to be a lack of transparency regarding how the remedial action level ("RAL") for sediments of 1 part per million ("ppm") was selected, and, therefore, this too was not in compliance with the NCP.

Menasha discusses each of these issues in detail below. Menasha requests that the comments contained in this letter be included in the Administrative Record for the Lower Fox River and Green Bay Superfund Site. Menasha believes that a failure to include these comments in the Administrative Record would be a separate violation of the NCP and applicable EPA guidance.

II. Background

The ESD modified three components of the remedy in the 2007 ROD Amendment (also known as the "Optimized Remedy"), which Itself had changed the remedy originally selected in the 2003 ROD. The ESD:

• modified the Monitored Natural Recovery ("MNR") portion of the remedy for operable unit ("OU") 2 by deleting invertebrates and birds from the long-term monitoring program;

• increased the cost estimate for the remedy from the 2007 ROD Amendment^ by $270 million to approximately $701 million, an increase of 62%; and,

• modified the cap thickness requirements for the remedy for OUs 2-5, reducing the thickness requirements in the 2007 ROD Amendment and converting the thickness standards into "targets" rather than requirements.

Menasha is not taking issue with the modification to the MNR portion of the remedy, nor the modification of the cap thickness requirements per se. The dramatic

^ $390 million (2005 USD) which EPA has converted to current dollars of $432 million (2009 USD). (ESD at 10.)

Menasha's Comment to the Lower Fox River ESD Dated February 25, 2010 Page 2


cost increase of the selected remedy, however, indicates that the remedy probably is not the most cost-effective remedy for OUs 2-5.

This is the second time EPA has changed the OUs 2-5 remedy. EPA selected a predominantly dredging/disposal remedy for OUs 2-5 in 2003, with an estimated cost of $579,304,000 (USD 2005) and $957 million (USD 2009)."* Then, in 2007, EPA "fundamentally" changed the original remedy to reduce the amount of dredging and allow for greater use of capping (under certain circumstances), which was supposed to reduce the estimated remedial costs 33% to $390 million (2005 USD) and $432 million (2009 USD). (2007 ROD Amendment 6/26/07 at 26 and 41^ and ESD at 10.) The figure below shows the magnitude of the change in percentage and absolute dollars.

ROD Changes in 2009 Dollars

2010 ESQ

2007 ROD Amendment

62% Change

$0.00 $200,000,000.00 $400,000,000.00 $600,000,000.00 $800,000,000.00

Thus, less than three years after the 2007 ROD Amendment, EPA has "significantly" changed the remedy again, increasing the estimated costs of the remedy by 62%. In the span of six years, EPA selected a remedy, "fundamentally" changed the remedy, and then "significantly" modified the remedy again, lowering and then raising the expected costs of the remedy hundreds of millions of dollars.

This 62% cost increase is dramatically beyond the generous cost estimation range EPA provides in its cost estimation guidance of -30 percent to +50 percent ("-30

* Critical Analysis Memo for ESD, February 26, 2010, at 2. http://www.epa.qov/reqion5/sites/foxriver/pdf/foxriver criteria memo 201002.pdf

^ http://www.foxrivercleanup.com/resources/amendedrod.pdf


http://www.epa.qov/reqion5/sites/foxriver/pdf/foxriver

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to +50 %") normally used at the feasibility stage. {A Guide to Developing and Documenting Cost Estimates During ttie Feasibility Study ("EPA 540-R-00-002")^ at 1-1.) It is debatable whether the -30 to +50% range even applies at this stage of the Lower Fox River remedy development.

As a project progresses and the design becomes more complete (such as at the Lower Fox River), "the cost estimate becomes more definitive." (EPA 540-R-00-002 at 2-3.) In fact, under EPA 540-R-00-002, at the final design stage (which is approximately where the Lower Fox River remedial design is at) the accuracy range for the cost estimate is expected to be -10 to +15%. (Exhibit 2-3, EPA 540-R-00-002 at 2-4.) When viewed against this more accurate estimation range, EPA's 62% cost increase is well beyond that which is appropriate to be done through an ESD.

For reasons discussed in more detail below, an increase of cost of this magnitude is a "fundamental" change in the cost of the remedy, and is appropriately accomplished through an amendment to the ROD, not through the use of an ESD.

III. EPA Improperly Changed the Remedy with an ESD

CERCLA, the NCP, and EPA guidance documents contemplate changes in remedies after a final ROD is issued. Such changes are characterized in one of three ways: (1) "Minor"; (2) "Significant," but not "Fundamental;" or (3) "Fundamental." (A Guide to Preparing Superfund Proposed Plans, Records of Decision, and Other Remedy Selection Documents ("EPA 540-R-98-3ry at 7-1 to 7-2.) "Minor" changes require no documentation of the administrative remedy. "Significant," but not "fundamental" changes require issuance of an ESD. "Fundamental" changes require issuance of a ROD amendment. {Id. at 7-2 to 7-7.) A ROD amendment has three significant requirements that do not apply to an ESD. A ROD amendment requires:

• A new analysis of the remedy selection criteria, including evaluation of cost-effectiveness for the selected remedial alternative;

• Signature of the Regional Administrator;^ and,

• Public comment.

If an ESD is issued, all three of these requirements are avoided.

^ http://www.epa.qov/superfund/policv/remedv/pdfs/finaldoc.pdf

^ http://www.epa.qov/superfund/policv/remedv/rods/pdfs/sectionf.pdf

^ NCP § 300.430(f)(1)(ii)(B)(2).

^ EPA 540-R-98-31 at 7-5.


http://HCNIAW.COM

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http://www.epa.qov/superfund/policv/remedv/rods/pdfs/sectionf.pdf

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Menasha does not question that EPA is permitted to change or modify the Optimized Remedy to take into account information learned during the remedial design process. When EPA does this, however, EPA's guidance requires EPA to comply with the requirements of Section 117(c) of CERCLA, as well as the regulations contained in the NCP, found at 40 C.F. R. § 300.435(c)(2). For the reasons below, Menasha asserts that EPA did not follow these statutory or regulatory requirements.

Under the 2007 ROD Amendment, EPA determined it had "fundamentally" changed the remedy in 2007 by providing greater flexibility for more capping to be performed in OUs 2-5 and because it decreased the cost of the remedy $190 million, or 31%. Under the ESD, EPA is taking the position that it has only "significantly" changed the remedy, notwithstanding modifying the expected remedial costs upward $270 million or 62%. Under Section 300.435(c)(2)(ii) of the NCR a ROD amendment Is required if the differences to the selected remedy "fundamentally alter the basic features of the selected remedy with respect to scope, performance or cost." (Emphasis added.) According to EPA guidance documents, "[f]undamental changes involve an appreciable change or changes in the scope, performance and/or cost or may be a number of significant changes that together have the effect of a fundamental change." (EPA 540-R-00-002 at 7-2 (emphasis added).) Particularly because it exceeds the -30 to +50% estimating range by 12% (or 47% if the more approphate -10 to +15% cost estimation range is used), and because the net increase is $270 million, Menasha believes the increase in remedial costs is an "appreciable change," and thus "fundamental," requiring a ROD amendment.

Menasha further believes a ROD amendment is necessary because neither the ESD nor the CAM contains appropriate levels of data or analysis to support their conclusions. Further, there are contradictory statements between the 2007 ROD Amendment and the ESD regarding critical rationale that EPA relies on to support its remedy decision. All of this, as discussed in greater detail below, belies the propriety of EPA's use of an ESD to modify the OUs 2-5 remedy.

IV. The Administrative Record Is Incomplete

The Administrative Record for ESD as identified and provided by EPA appears to be Incomplete, and not in compliance with the requirements of the NCP. In the Administrative Record index provided by Richard Murawski of EPA Region 5 Office of Regional Counsel on or about July 19, 2010, EPA listed three documents in the Administrative Record update (Update #4, March 18, 2010) pertaining to the ESD: (1) the ESD itself; (2) the CAM, which allegedly provided a detailed analysis of the information relied upon by EPA is deciding to issue the ESD; and, (3) the Lower Fox River Remedial Design 100 Percent Design Report for 2010 and Beyond Remedial Actions: Volume 2 of 2: November 1, 2009. The last document cited was not available online, and took Region V several months to provide.


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The ESD and the CAM also cite to several other documents. These other documents are not separately listed as being part of the Administrative Record.^° By being cross-referenced in ESD and CAM, however, it appears they have been relied upon by EPA in deciding to issue the ESD. The NCP clearly requires that "the explanation of significant differences or amended decision document and all documents that form the basis for the decision to modify the response action shall be added to the administrative record file." (NCP § 300.825(a)(2) (emphasis added).) Because the ESD cites documents which appear not to have been included In the Administrative Record file, EPA has not complied with this provision of the NCP.

V. EPA Should Have Provided an Opportunity for Public Comment

By issuing an ESD, EPA bypassed the public comment process associated with another ROD amendment, precluding any public input In the remedy modification process. Even if the use of an ESD to modify the remedy was permissible, which Menasha believes it was not, EPA should have provided a public comment period. EPA guidance documents allow, and at times recommend, public comment on an ESD. (EPA 540-R-98-31 at 7-5.) In particular, the applicable guidance recommends that public comment on an ESD be conducted when it "may be useful where there is considerable public or PRP interest in the matter . . . In such cases it may be appropriate to delay implementation of the remedy relating to the ESD to allow consideration of possible concerns." (Id.) Given the high public and PRP interest in the Lower Fox River, as well as the magnitude of the expected increased costs of the Fox River cleanup, it certainly qualifies as a site at which public comment should have been held prior to the issuance of the ESD.

The fact that public comment should have been sought at the Lower Fox River is also supported by EPA's 2002 Guidance - Principles for Managing Contaminated Sediment Risks at Hazardous Waste Sites, OSWER Directive 9285.6-08 ("Sediment Site Guidance"). The Sediment Site Guidance specifically provides that:

. . . increased efforts be made to provide the affected parties with the same information that is to be used by the decision-makers and to Include, to the extent possible, all affected parties in the entire decision-making process at a contaminated site. In addition, such information should be made available in such a manner that allows adequate time for evaluation and comment on the information by all parties. . . . ensuring their early and continued involvement in the cleanup process.

(Sediment Site Guidance, 3 (emphasis added).) By issuing the ESD without a public comment period, the EPA and the Wisconsin Department of Natural Resources ("WDNR") have failed to provide the parties and the public with "continued involvement

See, for example. Lower Fox River Baseline Monitoring Plan, Shaw Environmental & Infrastructure, Inc., and Anchor Environmental LLC, June 23, 2006.



in the cleanup process" in contradiction of EPA's own guidance.

VI. The OUs 2-5 Remedy Must Be Cost-Effective to Be NCR-Compliant

The remedies selected for the Fox River Superfund Site must be selected in a manner that complies with the requirements of the NCP. Menasha understands that remedy selection is an iterative process. The first step in the process is to determine if a remedy satisfies the first two "screening criteria" in the NCP, namely, will the remedy: (1) be protective of human health and the environment; and, (2) meet ARARs^- (all relevant and appropriate requirements) (unless waived). (40 C.FR § 300.430(f)(i)(A).) Remedial alternatives that do not pass or meet the screening criteria are eliminated from further consideration.

Assuming a remedy meets the first two screening criterion, the remedies are then evaluated under a set of "balancing" criteria, including cost-effectiveness. Significantly, the cost-effectiveness criterion in the NCP requires that all remedial alternatives be evaluated on the basis of the following cost standard:

Cost. The costs of construction and any long-term costs to operate and maintain the alternatives shall be considered. Costs that are grossly excessive compared to the overall effectiveness of alternatives may be considered as one of several factors used to eliminate alternatives. Alternatives providing effectiveness and implementabllity similar to that of another alternative by employing a similar method of treatment or engineering control, but at greater cost, may be eliminated.

(NCP § 300.430(e)(9)(G) (emphasis added).) In other words, when selecting a remedy, EPA is required to consider cost-effectiveness and eliminate from consideration all remedial alternatives the costs of which are "grossly excessive" compared to the overall effectiveness.

The NCP specifies the categories of costs that must be considered when evaluating a remedial alternative for cost-effectiveness. These include: (1) capital costs, including both direct and indirect costs; (2) annual operation and maintenance ("O&M") costs; and, (3) net present value of capital and O&M costs. (40 C.FR. § 300.430(e)(9)(iii)(G).) A cost analysis that does not include these costs Is not NCP-compliant and provides an insufficient basis for that remedial alternative to be considered and/or selected. The cost analysis must also include a contingency factor "to account for possible cost overruns," and it is supposed to be set as a percentage of overall costs. (EPA-R-00-002, at 1-1 and 3-11.) At the Lower Fox River Site, a project cost contingency was not included in the estimate as a percentage of total costs. (See, Basis of Design Report (June 2006) at 227). Menasha believes this resulted in an

^̂ ARARs are "applicable or relevant and appropriate requirements under federal environmental laws and state environmental or facility siting laws." (40 C.F.R. § 300.430(f)(9)(iii)(B).)



artificially low presentation of the estimated project costs in the ROD, making the dredging/disposal remedy selected appear cost-effective.

Overall cost-effectiveness is determined by evaluating three additional balancing criteria noted in Section 300.430(f)(1)(i)(B) of the NCP: (1) long-term effectiveness and permanence; (2) reduction of toxicity, mobility, or volume through treatment; and, (3) short-term effectiveness. (40 C.FR. § 300.430(f)(ii)(D).) A remedy will be deemed "cost-effective" if its costs are proportional to its overall effectiveness. (Id.) Under EPA guidance documents, the expected accuracy range of a cost estimate at the RI/FS stage is supposed to be -30 to +50% for detailed costs estimates. (EPA 540-R-00-002 at 1-1.) As noted above, the expected accuracy range of a cost estimate at the end of the remedial design stage is supposed to be more accurate, at -10 to +15%. (EPA 540-R-00-002 at 2-4.) Because the remedy is currently at the end of the remedial design stage, the costs should be within this tighter, -10% to +15% range. EPA's revision of costs in the ESD, however, indicates that the cost estimates for the OUs 2-5 remedy are well outside of the recommended -10 to +15% range, and are even outside of the required -30 to +50% range. Based on the fact that these costs are so uncertain, EPA should have provided public comment before issuing the ESD.

The selected remedy for OUs 2-5 is now estimated at $701 million (2009 USD). The capping remedy that was not selected is estimated to cost $484 million (2009 USD), a difference of $217 million. For the selected remedy to be compliant with the NCP,̂ ^ it must be more cost-effective than the capping remedy, i.e., the costs must be proportional to its overall effectiveness. The Administrative Record compiled to date by EPA does not support the determination that the selected remedy is more cost effective than the capping remedy.

VII. The Capping Remedy Meets NCP Criteria

As noted above, a discussion of comparative cost-effectiveness of the capping remedy against the selected remedy is relevant only If the capping remedy meets the initial screening criteria. But, based on the ESD and the CAM, it does.

A. The Capping Remedy Meets The Screening Criteria

The three remedial options "re-evaluated" in the ESD (dredging/disposal. Optimized Remedy from 2007, and primarily capping) all meet the initial screening requirements of being protective of human health and the environment and complying with ARARs. As EPA states in the CAM, "[djredging, capping and sand covering are all feasible and they all can be effective in reducing the risks posed by PCB-contaminated sediments at the Site." (Criteria Analysis Memo at 3.) As such, there is no dispute that the capping remedy meets the initial NCP screening criteha. According to the CAM, the only two balancing criterion re-evaluated in the ESD was: (1) protectiveness and permanence; and, (2) cost effectiveness.

^̂ Assuming the capping remedy otherwise meets applicable NCP criteria.



B. The Capping Remedy Meets the Protectiveness and Permanence Criteria

Having met the screening criteria, the remedial alternatives must then be analyzed under the additional balancing criteria. For the Lower Fox River Site, the remedial alternatives were evaluated against various balancing criteria during the initial remedy selection process. The balancing factors that were considered included: (1) long-term effectiveness and permanence; (2) reduction of toxicity, mobility, or volume through treatment; and, (3) short-term effectiveness. In the ESD, the three remedial alternatives were re-evaluated under only two of the balancing criterion, long-term effectiveness and permanence and cost effectiveness.

With regard to protectiveness and permanence, EPA itself determined that "[a]ll three of the alternatives [including capping] would meet the minimum requirements for long-term protectiveness and permanence under the NCP." (CAM at 5.) As noted in White Paper 6B, In-Situ Capping as a Remedy Component For the Lower Fox River ("White Paper 6B"), a document prepared for EPA and WDNR to address the capping alternative proposed by the PRPs, "[a] well-designed, properly constructed and placed on the contaminated surface, cap, along with effective long-term monitoring and maintenance, can prevent bioaccumulation by providing long-term isolation of bottom-dwelling organisms from the contaminated sediments, and the prevention of contaminant flux into the surface water." (White Paper 6B, at 1-6.) Thus, there is no question that the capping remedy would meet the minimum requirements for long-term protectiveness and permanence under the NCP and would reduce the risks posed by PCB-contaminated sediments at the Lower Fox River and Green Bay Site.

C. No Data Has Been Provided to Prove That The Selected Remedy Is More Cost-Effective Than The Capping Remedy

Since the capping remedy is on similar footing to the selected remedy with regard to the initial screening criteria and the protectiveness and permanence criteria, cost-effectiveness remains the differentiating criteria. There is no question that the capping remedy is more cost-effective to implement. EPA itself acknowledged that "[t]he capping remedy clearly would be less costly than the [Optimized Remedy] in the short-term." (CAM at 7.)

The ESD contains little new Site-specific information to support the revised costs, documented in it. EPA issued the 2007 ROD Amendment based on new information that had been collected after the issuance of the original ROD in 2003, including approximately 10,000 additional sediment samples that had been collected at over 1,400 locations. By contrast, EPA's ESD and the accompanying CAM generically notes that EPA continued the evaluation of the "cost and cost-effectiveness considerations" of the "Alternative Remedial Approaches" (including capping) "in light of new information, including information collected in the OU 2-5 remedial design process" (CAM at 4) and that "additional detailed design activities and the first season of dredging . . . provided a better basis for cost estimation." (ESD at 12.) EPA makes no reference, however, to


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specific data, samples, or other information that form the technical basis for its decision. In the absence of such data, the public is left with little information to assess the appropriateness of the remedy change, including EPA's cost effectiveness analysis.

Using this undisclosed "new Information," EPA Identified several cost-related considerations relevant to the re-evaluation that led to the issuance of the ESD. The "new" considerations included, among other things, that: (1) "[djredging costs depend largely on the volume of sediment removed (such as the number of cubic yards dredged and processed); and, (2) "capping costs depend largely on the amount of area that is being capped (such as the number of acres capped)." (CAM at 4.) It strains credibility to say this is "new information." It has always been the case, including when the remedy was originally selected in 2003, and when it was amended in 2007, that "dredging costs depend largely on the volume of sediment to be removed," and that "capping costs depend largely on the amount of area that is being capped." Nowhere does EPA state what new cost information it has in this regard that it did not have in 2003 or 2007 to justify any modification to the cost of the selected remedy based on this "new" information.

The documented analysis presented by EPA does not comply with applicable guidance or the NCP. EPA's own guidance requires that O&M costs be estimated on an element-by-element basis. (EPA-540-R-00-002.) In other words, EPA is not permitted to rely on generalized statements that O&M costs may approach or exceed a certain amount. Rather, EPA is required to provide actual cost figures with an appropriate contingency applied. (EPA-540-R-00-002, at 3-11 and 5-18.)

EPA's failure to provide an O&M cost estimate on an element-by-element basis, as required by EPA-540-R-00-002, is the continuation of an improper practice started early in the remedy selection process for the Lower Fox River In Its Responsiveness Summary for the June 2003 ROD for OUs 3, 4, and 5, EPA did not provide an element-by-element cost estimate for the O&M for the remedial options evaluated. EPA simply listed O&M as a set figure, $4.5 million for the dredging and capping remedies, and $9.9 for the Monitored Natural Attenuation ("MNA") remedy. (Table 11-8, page 98.) EPA's refusal to quantify the long-term O&M costs that purportedly drove its decision violates the NCP and EPA's own guidance.

In addition to an element-by-element cost estimate for O&M activities, the NCP requires that calculation of the net present value of annual O&M costs be quantified. (40 C.RR. § 300.430(e)(9)(iii)(G).) In the absence of specific, element-by-element cost information, EPA cannot accurately estimate an appropriate net present value for annual O&M costs. In short, by vaguely referencing unspecified long-term O&M costs as a basis for the ESD, instead of providing an element-by-element cost estimate for O&M, EPA failed to comply with the express requirements of its own guidance and the NCP.

Nor is there any explanation or analysis to support the generalized statement that "the long-term needs for cap maintenance, cap enhancement, and potential cap removal cannot be predicted with certainty at this time." (CAM at 6.) The 2007 ROD


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Amendment included preliminary estimated costs for operation and maintenance, with detailed estimates to be completed during the remedial design process. (2007 ROD Amendment at 26.) The 2007 ROD Amendment stated that a "detailed long-term monitoring plan, specifying the types and frequency of monitoring, will be developed during the remedial design process." (2007 ROD Amendment at 42.) EPA provides no indication whether the studies called for in the 2007 ROD Amendment were ever conducted, or if conducted, what the results of such studies showed.

EPA's assertion that the long-term O&M costs for the OUs 2-5 capping remedy "cannot be predicted with any certainty" (CAM at 6), is at odds with the O&M analysis performed for the 0U1 remedy. In the 0U1 Design Supplement of November 2007 submitted to EPA and WDNR by GW Partners LLC,^^ the following assumptions were made when estimating the O&M capping costs for the Optimized Remedy: (1) that cap monitoring would occur in years 2, 7, 12, 17, and 25 and then every 10 years ending at year 95; and, (2) that 10% (20% for a high cost-estimate), 5% (10% for a high cost-estimate), 5%, and 2.5% cap replacement would be required in years 3, 8, 13, and 18 respectively. Applying a three percent (3%) discount rate to arrive at a present net worth, the O&M for the 0U1 Optimized Remedy was estimated to cost between $3.4 million to $5.9 million. GW Partner's ability to provide this level of detailed O&M cost estimation for 0U1 in 2007 shows that quantification of the O&M costs for the OUs 2-5 capping remedy is possible.

The cost differential between the selected remedy and the capping remedy is significant: $217 million. This is almost the size of the increase in estimated cost of the selected remedy from the 2007 Amended ROD to the ESD. Notwithstanding an estimated cost of $484 million (2009 USD), EPA declined to select the capping remedy based on unspecified general concerns of undefined "long-term" risks associated with the O&M of engineered caps.

The fact that the cost differential between the selected remedy and the capping remedy is almost the same as the increase in costs of the selected remedy between the Amended ROD and the ESD, provides even more support for Menasha's position that the NCP requires EPA to provide an element-by-element, detailed cost analysis of the net present value of O&M costs of the capping remedy. Only if these anticipated O&M costs can reasonably be shown to exceed the $217 million cost differential between the capping remedy and the selected remedy over time should the selected remedy be deemed more cost-effective. EPA's assignment of a "cost uncertainty" to the capping remedy of "moderate to high," and then used this "cost uncertainty" as a continuing basis for declining to select the significantly less costly capping remedy is inappropriate. Given the extensive investigation that has taken place at the Site for the past 17 years, and that the 2007 ROD Amendment required such analysis, data should be available for quantification of these costs. Without such analysis, the modified remedy in the ESD cannot be said to be more cost-effective than the capping remedy.

^̂ GW Partners LLC was formed by WTMI Company and P.H. Glatfelter, the performing parties for the 0U1 remedy.



VIII. The ESD Is Inconsistent With the 2007 ROD Amendment

A few categories of costs accounted for the bulk of the $217 million increase in cost estimate from the 2007 Amended ROD to the ESD. These categories included costs for mobilization/demobilization, design and infrastructure of the dewatering facility, and Site support costs. Mobilization/demobilization costs increased $29 million based on the explanation that "these costs were generally underestimated." The same explanation is provided for the $43 million increase for Site support (site and operations support). The estimate for the design and infrastructure of the dewatering facility increased $71 million, because the original design "did not provide for a building complex of the current size, nor did the original estimate anticipate additional work needed for construction of the bulkhead build-out at the dewatering facility." (ESD at 12.) These three categories of costs alone account for approximately $143 million, or just over 50%, of the projected cost increase. These categories of costs appear to be routine construction costs. Given the late stage of the remedial design process of the OUs 2-5 remedy, these costs should be subject to significantly better estimation. No explanation was provided why these issues were not anticipated during the original design, let alone at the time of the 2007 ROD Amendment less than three years ago.

In the ESD, EPA attempted to justify its failure to provide better quantification of these costs in its prior design work by stating that:

• Contaminated sediments targeted for remediation reside in a dynamic, aquatic environment;

• This poses significant challenges for contaminant assessment, design, and construction;

• Many aspects of design and construction have never been encountered because of the scope and complexity of this project;

• This remedy employs a variety of technologies, including dredging, capping, and sand covering. The 2007 ROD Amendment remedy presents unique challenges with coordinating different remedial actions over a time period of 9 years, along 12 miles of river; and,

• Aspects of dredging, capping and covering must consider local river use and conditions, such as water depth, water velocity, propeller wash impact, potential for storm impacts, infrastructure, potential for ice scour, substrate, and local river configuration.

(ESD at 13.)

However, many of these statements directly conflict with the 2007 ROD Amendment. For example, the ESD's statement that the dynamics of the river system



itself create unpredictability that precludes use of a capping remedy is at odds with the 2007 ROD Amendment Responsiveness Summary. In response to public comments, EPA noted that "[t]he agencies have consulted with recognized capping experts having substantial expertise in environmental engineering, modeling, and sediment remediation, including those working on the Wisconsin Department of Natural Resources' oversight team. Capping has been used successfully in river systems for years and the advantages are clearly understood." (2007 ROD Amendment Responsiveness Summary at 19.) EPA further stated that "[f]or decades, the WDNR has been modeling the Fox River, and as a result there is a predictive capability for this river that does not exist for most systems. The modeling has helped understand the dynamics of the river and allows the design to be done with greater certainty." (Id.) EPA provided no explanation as to why modeling that previously provided certainty In 2007 no longer provides the same certainty in 2010.

EPA's statement regarding that the unprecedented scope and complexity of the remedy somehow supports the use of dredging over capping is also at odds with the 2007 ROD Amendment. In the 2007 ROD Amendment Responsiveness Summary, EPA noted that it had "evaluated many other dredging projects throughout the world. . . Experience on these projects has demonstrated the viability and effectiveness of capping as a method to contain contamination and reduce risks to human health and the environment." (Id.)

Indeed, EPA has been involved in many complex dredging projects prior to the Fox River Dredging projects are presently ongoing at the Hudson River (a 200-mile long site), the Housatonic River (approximately 10 miles subject to dredging activities), and Kalamazoo Rivers (an 80-mile long site) to name a few. The issues that have arisen in the Fox River have undoubtedly been faced at these and other sites. EPA has extensive experience in these types of complex dredging and capping projects, and its assertions to the contrary ring hollow.

Additionally, EPA's "concerns" expressed in the ESD regarding the "long-term" risks associated with maintenance of engineered caps contradicts its statements on that topic in the 2007 ROD Amendment and in EPA's Response to Comments. Specifically, EPA noted that "[a]t the Fox River Site, leading experts in the fields of sediment transport, ice flow and propeller wash have been closely involved in evaluating and providing input Into cap design. This will ensure that the caps remain stable in the long term, and effectively contain PCB contamination. The Final Design will have a built-in margin of safety to ensure long-term stability and effectiveness of the caps." (2007 ROD Amendment Responsiveness Summary at 8.) EPA provides no information or explanation in the ESD why the previous plan to address cap maintenance is no longer viable.

Lastly, the result of the remedy evaluation process EPA now espouses in the ESD is at odds with the results of the same process In the 2007 ROD Amendment. The 2007 ROD Amendment lowered the cost of the originally proposed dredging remedy from approximately $580 million to approximately $390 million (USD 2005). The


HUNSUCKER GOODSTEIN &NELSONPC HCNLAW. COM

remedy selected in the 2007 ROD Amendment was found to be more cost-effective than the original remedy because it was $190 million less and was believed to be equal or more protective. (2007 ROD Amendment at 49.) The capping remedy is $217 million less than the dredging/capping remedy and appears to be equally protective. Which begs the question - why is the capping remedy not more cost-effective, too? By falling to adequately address these questions, EPA's selection of the dredging remedy does not comport with the explicit requirements of the NCP and EPA's own guidance.

IX. There Remains a Lack of Transparency Regarding the 1 ppm RAL

Finally, there continues to be a lack of transparency regarding the selection of the RAL of 1 ppm for sediments, which has been carried through the remedy selection process from the first ROD to the ESD. It remains unclear how this RAL was derived, and whether it was selected based on a risk reduction based. According to EPA's 2002 Guidance - Principles for Managing Contaminated Sediment Risks at Hazardous Waste Sites, remedies at contaminated sediment sites are to be risk-based. EPA's policy has been and continues to be that there is no presumptive remedy for any contaminated sediment site, regardless of the contaminant or level of risk. {Principles for Managing Contaminated Sediment Risks at Hazardous Waste Sites, at 7.)

In the December 2002 Final Feasibility Study ("2002 FFS"), the EPA set forth five Remedial Action Objectives ("RAOs") for the remedy in the Lower Fox River. The five RAOs In the 2002 FFS were:

1. Achieve surface water quality criteria, to the extent practicable;

2. Protect humans who consume aquatic organisms (i.e., remove consumption advisories);

3. Protect ecological receptors (i.e., healthy invertebrate, bird, fish, mammal populations);

4. Reduce transport of PCBs from the river into Green Bay and Lake Michigan; and,

5. Minimize contaminant releases during remediation.

(2002 FFS, Executive Summary, at ii-iii)

In the December 2002 ROD for OU 1 and OU 2 ("2002 0U1-2 ROD"), five RAOs were also set forth for the remedial actions in the Lower Fox River The five RAOs in the 2002 ROD were:

1. Achieve, to the extent practicable, surface water quality criteria throughout the Lower Fox River and Green Bay. This RAO is intended to reduce PCB concentration in surface water as quickly as possible. The current



water quality criteria for PCBs are 0.003 ng/L for the protection of human health and 0.012 ng/L for the protection of wild and domestic animals. Water quality criteria incorporate all routes of exposure assuming the maximum amount is ingested daily over a person's lifetime;

2. Protect humans who consume fish from exposure to COCs that exceed protective levels. This RAO is intended to protect human health by targeting removal offish consumption advisories as quickly as possible. DNR and EPA defined the expectation for the protection of human health as the likelihood for recreational anglers and high-intake fish consumers to consume fish within 10 years and 30 years, respectively, at an acceptable level of risk or without restrictions following completion of a remedy;

3. Protect ecological receptors from exposure to COCs above protective levels. This RAO is intended to protect ecological receptors like invertebrates, birds, fish, and mammals. DNR and EPA defined the ecological expectation as the likelihood of achieving safe ecological thresholds for fish-eating birds and mammals within 30 years following remedy completion. Although the FFS did not identify a specific time frame for evaluating ecological protection, the 30-year figure was used as a measurement tool.

4. Reduce transport of PCBs from the Lower Fox River into Green Bay and Lake Michigan. The objective of this RAO is to reduce the transport of PCBs from the River into Green Bay and Lake Michigan as quickly as possible. DNR and EPA defined the transport expectation as a reduction in loading to Green Bay and Lake Michigan to levels comparable to the loading from other Lake Michigan tributaries. This RAO applies only to River reaches.

5. Minimize the downstream movement of PCBs duhng implementation of the remedy. A remedy is to be completed within 10 years.

(2002 0U1-2 ROD, pages 50-51).

The RAOs in the 2002 FFS and the 2002 0U1-2 ROD are almost the same, with the notable exception that between the issuance of the 2002 FFS and the 2002 0U1-2 ROD, a decision was made to use 10 years as the deadline for completion of the remedy and the attainment of the removal of the fish advisory goals. The Administrative Record provides no support for the selection of the ten-year deadline. Indeed, it is not even discernable from the record why this time-period was selected, leading to the conclusion that the selection of the 10-year deadline was not based on a consideration of risk or any other acceptable consideration.

The 2002 FFS notes "that in order to remove recreational fish consumption advisories within 10 years following remediation {WDNR's expectation), remedies



implemented to the 1,000 ppb PCB action level for surface sediments would be required for most of the river reaches." (2002 FFS, Executive Summary, at v (emphasis added)). Other than it being "WDNR's expectation," there is no discussion of why the remedy needed to be completed in 10 years from a risk reduction basis. Nor is there is any discussion that compares the specific risk reduction associated with removing the recreational fish advisories in 10 years against the risk reduction associated with removing the fish advisories in any other period of time. Thus, it seems clear that the selection of the 10-year period was not based on risk reduction. That the selection of the 10-year period was not risk-based is further supported by the statement In the December 2002 Final Baseline Risk Assessment that "[t]he final selection of the remedial action levels is a policy decision left to the response agencies." (Final Baseline Risk Assessment, December 2002, Executive Summary, at viii (emphasis added)). In combination, the statements from the Final Baseline Risk Assessment and the 2002 FFS establish that the desire to remove the fish advisories in 10 years was a "policy decision," which in turn drove the selection of the 1 ppm RAL, rather than any specific risk-based analysis. This "policy decision" is not supported by the NCP or EPA's guidance, which require the remedy to be based on risk reduction.

The "policy decision" to use a 10-year period likely has had significant cost implications. The 2002 FFS notes that:

Remediation costs are directly proportional to sediment volumes; therefore, as the action level decreases (becomes more protective), the sediment volume requiring removal increases and the cost increases. For example, the cost to place an in-situ sand cap (Alternative F) in the Little Lake Butte des Morts Reach will cost approximately $145,200,000 at the 125 ppb action level but only $66,200,000 at the 5,000 ppb action level.

(2002 FFS, Executive Summary, at vii). EPA evaluated RALs of 0.125 ppm, 0.25 ppm, 0.5 ppm, 1 ppm, and 5 ppm. EPA, however, did not evaluate any RAL between the 1 ppm and 5 ppm levels. According to EPA, since "[rjemediation costs are directly proportional to sediment volumes," there is a significant analytical gap between the RAL of Ippm and alternative RALs between 1 ppm and 5 ppm. Without evaluating potential added risk of a higher RAL against the added costs of performing the remedy, EPA and WDNR have failed to perform the requisite cost-effectiveness analysis. Not only is this analysis required by the NCP, but given the magnitude of the costs of the OUs 2-5 remedy, such an analysis should have been performed to allow for a complete cost-effectiveness analysis to be undertaken prior to selection of the remedy.



X. Conclusion

For the reasons set forth above, Menasha believes that the ESD was improperly issued, and the modifications to the OUs 2-5 remedy, particularly the significant upward change in the cost, should only have been determined after a full public comment period. EPA and WDNR's continued use of the 1 ppm RAL for sediment is not supported by the Administrative Record created, and has resulted in the exclusion of a more cost-effective remedy from being selected.

As noted above, Menasha requests that these comments be included in the Administrative Record for the Lower Fox River and Green Bay Superfund Site. Should you have any questions in this regard, please do not hesitate to contact our office. I can be reached at (925) 299-5128.

Very truly yours, Hunsucker Goodstein & Nelson PC

David A. Rabbino

DAR:mm cc: Tom Bender
