USEPA COMMENTS ON PICA 001 FS (CONT’D)
|
|
return usable ground waters to their beneficial uses wherever practicable, within a timeframe that is reasonable given the particular circumstances of the site” (40 CFR Section 300.430(a)(1)(iii)(F)). Since all groundwater located below Picatinny is classified as a current source of drinking water, EPA expects that it will returned to drinking water quality standards within a reasonable timeframe.” Refer to comment 2 above. CERCLA Response Actions and LUCs: The last two sentences of the sixth paragraph of the executive summary state the following: “At the 24 sites addressed in this FS, the contaminant levels, risks and hazards at the sites are not low enough to allow unrestricted use. Therefore, administrative (non-CERCLA) or CERCLA actions were evaluated, as appropriate, for these 24 sites.” The USEPA comment is as follows: ‘EPA does not agree with the Army’s parsing of what constitutes an “action” in determining whether the implementation of land use controls (LUCs) constitutes a CERCLA action or not. “Action”, as expected, has a range of meanings that are not necessarily limited to “the bringing about of an alteration by force or through a natural agency” (second definition of action in Webster’s Ninth Collegiate Dictionary). Other definitions include 4) “an act of will” and 5)b “the accomplishment of a thing usually over time, in stages, or with the possibility of repetition”. Clearly, the implementation of institutional controls requires an “act of will” and constitutes “the accomplishment of a thing usually over time, in stages, or with the possibility of repetition”. The NCP refers to institutional controls as a “remedy” in: “The use of institutional controls shall not substitute for active response measures (e.g., treatment and/or containment of source material, restoration of ground waters to their beneficial uses) as the sole remedy unless such active measure are determined not to be |
|
practicable, based on the balancing of trade-offs among alternatives that is conducted during the selection of remedy” (40 CRF Section 300.430(a)(1)(iii)(D)). In addition, the Army accepted the Navy principles which appeared in a DoD memorandum dated January 16, 2004 that represented the end of the LUC dispute between EPA and DoD. In Attachment 1 of that memorandum entitled Navy Principles and Procedures for Specifying, Monitoring, and Enforcement of Land Use Controls and Other Post-ROD Actions the Preamble stated: “Since the Department of Defense (DoD)/Environmental Protection Agency (EPA) Model Interagency Agreement (IAG)/Federal Facility Agreement (FFA) was developed in 1988, EPA and the Navy have gained considerable knowledge and understanding about post-Record of Decisions (ROD) activities, especially Land Use Controls (LUCs). Thinking, policies, regulations and procedures concerning LUCs have evolved considerably since DoD and EPA developed the 1988 FFA model language. New statutes and regulations related to LUCs are being considered in many states. Accordingly, EPA and the Department of the Navy (DON) believe that a set of Principles will assist the Navy field commands and EPA Regions to better implement our respective Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) responsibilities [emphasis added]. The Principles described below do not replace or substitute for any existing CERCLA statutory or regulatory requirement. Rather they provide a mutually agreeable framework to provide a more efficient process to implement LUCs at National Priority List (NPL) installations.” The second of the Principles referenced above states: “At sites where contaminants are left in place at levels that do not allow for unrestricted use, LUCs are used to |
|
ensure that the contaminants do not pose an unacceptable risk to human health or the environment. LUCs consist of engineering controls and/or institutional controls.” (Memorandum from Alex Beehler, Assistant Deputy Under Secretary of Defense (Environment, Safety and Occupational Health), to the respective Deputy Assistant Secretary of the armed services entitled: Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) Record of Decision (ROD) and Post-ROD Policy dated January 16, 2004). Furthermore, where in the NCP, CERCLA or EPA guidance does it make the distinction between administrative (non-CERCLA) and CERCLA actions for addressing contamination at a CERCLA operable unit (OU)? The only situation where this remotely occurs is when a CERCLA OU is suitable for no further action (NFA) and no post-ROD activity whatsoever is required. The criterion for NFA is that contaminant levels allow for unrestricted use and unlimited exposure. Failing that, LUCs are required which clearly constitute a CERCLA action. Based on the foregoing, the implementation of land use controls at a CERCLA site plainly constitutes a CERCLA response action. Therefore, EPA will not approve any feasibility study or other primary document that refers to LUCs as an administrative action not subject to CERCLA.’ The USEPA’s sixth comment further elaborates on LUCs as follows: ‘…….if LUCs are required at an operable unit, then an active remedy will need to be assessed to determine that implementation of such a remedy is impracticable. Please refer to Specific Comment 5.’ Refer to comment 2. Soil reuse: ‘Section 3.21.2, Previous Investigations, Building 1071, Crystallizing Building, sixth paragraph, page 136 – It is stated in this paragraph: “The concrete sump associated with |
