What’s old is new again…...
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A variation on an issue that has developed repeatedly throughout the duration of the cleanup effort at Picatinny Arsenal has arisen again. This issue, a source of contention between the Army and the U.S. Environmental Protection Agency (USEPA), revolves around the applicability of land use controls (LUCs) and applicable or relevant and appropriate requirements (ARARs). On this occasion the matter has not been elevated to the legal dispute level but it has been the topic of correspondence between the Army and the USEPA. For example, this topic was the subject of discussion at the September 2, 2010 technical project meeting with representatives of Picatinny Arsenal, the USEPA, and the NJDEP. At the October 2010 PAERAB meeting, Mr. Ted Gabel provided a handout detailing the timeline for development of the issue. The following timeline is excerpted from Mr. Gabel’s document with additional information from supplemental correspondence including the following: a letter from Mr. Walter Mugdan of the USEPA to Ms. Irene Kropp of the NJDEP dated May 12, 2010; the September 2, 2010 meeting minutes; and a letter from Ms. Angela Carpenter of the USEPA to Mr. James Daniel of the Army dated October 7, 2010. August 2008: PICA 01 Feasibility Study (FS) for 25 Sites submitted to regulators by Picatinny Arsenal August 2009: FS approved by USEPA. According to Picatinny Arsenal the document includes “...sites with acceptable levels of risk based on current land use and only LUCs” December 9, 2009: Technical meeting. Picatinny Arsenal discussed sites and agreed to adjust remedies to include soil removal for lead. December 13, 2009: Picatinny Arsenal provided a statement |
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regarding ARARs in an e-mail to regulators. This passage was intended to be included in pending and future documents concerning ARARs. The statement is as follows: “Risks and hazards to human health and the environment at these sites are within the generally accepted risk range for the current and reasonably anticipated future use. However, the risks and hazards are not low enough to allow unrestricted use. Additionally, contaminant levels exceed the promulgated industrial NJSRS which are recognized as applicable chemical standards. Alternative SL-2/SD-2 (LUCs) meets these chemical specific ARARs by controlling exposure through institutional and engineering controls as necessary. These LUCs also control future changes in land-use thereby ensuring no unacceptable risks to humans.” December 17, 2009: The USEPA replied as follows in correspondence: “…EPA is currently reviewing the NJ soil remediation standards to determine their applicability as ARARs so we cannot at this time agree with the proposed ARAR language… Other issues of concern that need to be further discussed with the state are the extensive use of existing vegetative covers as engineering controls, 6 inch soil covers (constructed), averaging of contaminants, and hot-spot lead removals to the 5X cleanup standard (i.e. are these methods consistently applied at other Superfund sites in the state).” May 12, 2010: Letter from Mr. Walter Mugdan of the USEPA to Ms. Irene Kropp of the NJDEP. In the letter Mr. Mugdan discusses two issues – 1) “whether the USEPA should or must rely on theSRS [soil remediation standards] when deciding whether a remedial will be taken at a Superfund site in New Jersey” and 2) “whether the SRS are potential applicable or relevant and appropriate requirements (‘ARARs’) “ under the provisions of CERCLA. The USEPA concluded |
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with the following: “EPA will not rely on the SRS to make the threshold decision of whether to take a response action at a Federal-lead Superfund site. As a matter of policy, EPA generally uses the results of the baseline risk assessment to establish whether to take a remedial action using either CERCLA Section 104 or 106 authority.” Regarding the second issue, the May 2010 letter stated that “EPA has evaluated all the SRS and we have concluded that the numerical soil remediation standards for the ingestion/dermal exposure pathway are potential ARARs under CERCLA (except the standard for lead, and except when the future use of a site will be limited to recreation), to the extent they are more stringent than federal standards. In contrast, the SRS for the inhalation pathway are not ARARs .” The USEPA concluded with the following : “Finally, New Jersey’s methodologies for determining impact-to-groundwater soil remediation goals are not ARARs.” The rationale stated was that New Jersey relies on guidance documents to responsible parties to develop site-specific IGW soil cleanup goals and that the methodologies have not been promulgated. As such the “EPA may treat the New Jersey guidance documents as ‘to be considered’ (‘TBC’) materials or, alternatively, EPA can develop site-specific cleanup objectives using its own methods.” July 1, 2010: USEPA comments on the 25 Site FS revised April 2010 included |
