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ADEMALABAMA DEPARTMENT OP ENVIRONMENTAL MANAGEMENT

POST OWCB BOX 301463 36UO-1403 « 1400 COUSEUM BLVD. J»110-2089

.. MONTGOMERY. ALABAMAJAMES W. WARR WWW.AOEM.STATE.AL.US DON &EGELMAN

(334)271-7700 GOVBBNCR

7, 2002Genoa Corner.

Ain 270OM*

Certified Mail #7001 2510 0008 7928 1092 ,£* *•*»Return Receipt Requested F«SS£S m£*

Utxxilwy 177-671SMning:

Assistant Attorney General xfor the Environment and Natural Resources DivisionU.S. Department of JusticeP.O. Box 76 ItWashington D.C. 20044

RE: United States v. Pharmacia Corporation(p/k/a Monsanto Company) and Solutia, Inc.D.J.Rcf. 90-11-2-07135/1Civil Action No. CV-Q2-PT-0749-E

To Whom It May Concern:

On April 4, 2002, the Department of Justice (DOJ) announced that, on March 25,2002, aproposed Partial Consent Decree in United States v. Pharmacia Corporarton(p/k/a MonsantoCompany) and Solutia. Inc. was lodged with the United States District Court for the NorthernDistrict of Alabama. The Alabama Department of Environmental Management (ADEM) hasreviewed the proposed partial consent decree and is providing an analysis of pertinent issues forconsideration by the DOJ and the federal district court ADEM's primary concerns surround thescope of the proposed consent decree, the impact it has on its federally authorized correctiveaction program, its purpose, and the timing of its submittal to the courts.

First, it should be noted that ADEM has not taken the position that there is no role for CERCLArelated to the Anniston PCB Site. To the contrary, it was ADEM who requested CERCLAinvolvement for those areas outside the reach of the state RCRA permit, primarily in certainresidential areas of West Anniston. However, in its request to the agency, ADEM specificallydelineated the scope of the requested CERCLA involvement. The proposed partial consentdecree completely ignores the requested concept of CERCLA augmentation of the on-goingRCRA activities, and instead seeks unilateral control. Such action yields a number ofunacceptable consequences, which are explained below.

RCRA / CERCLA Coordination Issues

The proposed partial consent decree requires the Respondents to conduct a RemedialInvestigation / Feasibility Study in accordance with the Comprehensive Environmental ResponseCompensation and Liability Act (CERCLA) for any areas in and around Anniston, Calhoun

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County, Alabama that contain or may contain polychlorinated biphenyl (PCB) impacted soil.This broad scope imposes EPA CERCLA oversight for areas that are already being addressedpursuant to a permit issued by AJDEM under its federally authorized RCRA Correction Actionprogram (a.k.a., State RCRA program), which is implemented pursuant to the AlabamaHazardous Wastes Management and Minimization Act (AHWMMA).

In a September 24,1996 memorandum (attached), EPA outlined its national policy regardingcoordination between the RCRA and CERCLA programs. This policy states, "it has long beenEPA's policy to defer facilities that may be eligible for inclusion on the National Priorities List(NPL) to the RCRA program if they arc subject to RCRA corrective action." By including areasof the site already being addressed pursuant to RCRA, the proposed partial consent decree is inconflict with the agency's long-standing national policy. In response to questions by ADEMregarding the proposed conflict with this policy, one Region 4 official indicated that the Regiondoes not consider the current action to be in conflict with the established policy, since-the agencyis not proposing to list the site on the NPL. Another Region 4 official has indicated that theagency has chosen not to adhere to the policy in this case. If this is indeed the view of EPA andDOJ, this is even more alarming, since that would indicate that the federal agencies areknowingly negotiating an agreement with a facility currently subject to a federally authorizedstate RCRA program in a manner that intentionally sidesteps established national policy. Todate, the agency has not indicated why it believes that it is inappropriate to adhere to thecoordination policy for this case.

It lias been ADEM's experience that dual regulation of the same investigation or remediationproject is unproductive, primarily due to the amount of time it takes to coordinate the review ofregulatory submittals and responses between multiple agencies, and many times, multipledivisions within each agency. Furthermore, this dual response is unnecessary given EPA's long-standing position that the remediation requirements between the RCRA and CERCLA programsare.substantively equivalent. EPA recognized both of these issues in its 1996 deferral policy.Therefore, the proposed consent decree should not include any areas already covered by the StateRCRA corrective action permit.

In Alabama, there are a number of sites, in addition to the Solutia site, that are being addressed inpart by both the State hazardous waste program and the federal CERCLA program. Theseinclude the Ciba Specialty Chemicals and Olin Corporation sites in Washington County, theformer Stauffer Chemical Company sites in Mobile County, and the Marshall Space FlightCenter (MSFC) and Redstone Arsenal facilities in Madison County. In the case of Ciba, Olin,and Stauffer, the sites were listed on the NPL in the early 1980's, before a federal policy onRCRA/CERCLA coordination was developed. In the case of MFSC and Redstone, the siteswere listed on the NPL in the early 1990'$ a$ a part of a federal initiative to list major federalfacilities (i.e., DOD and DOE) on the NPL to facilitate coordination between the federalagencies. At each of these facilities, each regulatory program has primary jurisdiction overdifferent areas of the site. Solutia is the only facility in Alabama, and to ADEM's knowledge theonly facility in the nation, where the CERCLA program is proposing to execute a new CERCLAcleanup authority at an active industrial facility which is already being addressed by an effectiveRCRA Corrective Action program implemented by an authorized staie.

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It has also been ADEM's experience that the RCRA Corrective Action program provides muchquicker, more effective, and more streamlined approaches to environmental investigations orcleanups. For example, the interim measures process has been utilized many times in Alabamaand around the nation to secure more immediate, short-term remedies in advance of the morecomplex final remedy evaluation process. An equivalent procedure does not exist under thecurrent CERCLA remediation program. It should also be noted that the RCRA CorrectiveAction program tends to provide more flexibility and streamlined oversight of remediationprojects. In State efforts to realize timely and appropriate remediation at this site, ADEM hasroutinely utilized innovative regulatory methods since taking the lead oversight role in 1993.Many of the innovations pioneered by ADEM on the Solutia project are now advocatednationally by EPA headquarters as RCRA Corrective Action Reforms for all sites. Region 4 hasroutinely commended the ADEM corrective action program for its outstanding work on this andother sites, as a part of the annual RCRA program review process. Conversely under theCERCLA program, there are many instances where responsible parties have been precludedfrom taking immediate response actions without following the cumbersome linear process forwhich EPA has received much criticism for inefficient management of cleanups.

At EPA's request, ADEM and EPA staff have held conference calls and meetings related to theAnniston PCB contamination between project staff and management personnel from bothagencies on a weekly basis for several years. The purpose of these conference calls andmeetings, as expressed by EPA, was to provide for the efficient coordination and implementationof issues between State RCRA/CERCLA staff and their counterparts in the RCRA, CERCLA,TSCA, Athens Lab, and Enforcement programs at EPA to ensure timely implementation ofresponse activities related to PCBs and Lead in the Anniston area. Representatives from the state(ADPH) and federal (ATSDR) health agencies are periodically included in these calls andmeetings 10 coordinate health related issues.

In spite of this level of coordination initiated by EPA, ADEM has experienced a number ofcoordination challenges associated with the Annision PCB site. An example of such involves theChoccolocco Creek Waste Water Treatment Plant (CCWWTP). This was the subject of anumber of discussions between the State and EPA where EPA personnel expressed a reluctanceto address the site under CERCLA because it would take 3 to 5 years before the CERCLApersonnel could begin to evaluate it due to project backlog. This is a sharp contrast to recentpublic statements by EPA and the Department of Justice that the quickest route to a.comprehensive cleanup is for the CERCLA program to address the entire Anniston PCB site. Asa result of the referenced discussions, ADEM agreed to assume the lead oversight role for thissite under the State hazardous waste program. Prior to that time, ADEM had to individuallyresolve regulatory conflicts and coordinate the review of regulatory submittals between as manyas six regulatory programs of EPA (RCRA, CERCLA Removal, CERCLA Remedial,Stormwater, Wetlands, and TSCA), since there was no consistent, consolidated position from thevarious EPA programs. These challenges were the primary reason for & two (2) year delay inaddressing the remediation issues related to the CCWWTP. These challenges have also resultedin a more than two (2) year delay of necessary expansions of the CCWWTP required by State

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and federal water pollution control laws and regulations. Since ADEM's determination toproceed with the lead role, EPA has re-evaluated its position which led to the two-year delay,and determined that ADEM was correct from the outset (C. Brown to S. Story, 6 March 2002."CCWWTP Spoils Pile," personal e-mail).

Investigation into on-site areas has also suffered delays due to coorduiation challenges. Theinitial RCRA Facility Investigation (RF1) Report for the plant-site areas was submitted to ADEMand EPA in January 1999- Although the need for timely EPA comment and review of this reportwas regularly communicated in the weekly conference calls, ADEM did not receive commentsfrom the agency until October 2000, twenty months from the receipt of this report by EPA. Arevised RFI Report was developed in response to AJDEM and EPA comments and resubmirted toboth agencies in August 2001. ADEM received EPA's comments on the revised report in May"2002, eight months from its receipt by EPA. For several years, ADEM and EPA havemaintained a Memorandum of Agreement (MOA), most recently updated in 1998 (attached), forpurposes of facilitating the EPA's oversight of ADEM's authorized RCRA program. For anycorrective action document that the agency wishes to review and comment on, the MOA (EPA,1998) requires a response time of 30 days from the receipt of the document. The agency'sresponse times for the On-site RFI Report were inconsistent with this MOA and have contributedto over 2 years of delays in moving this investigation forward. Similar coordination delays havebeen experienced with other reports and workplans related to RCRA activities at this site, as wellas with reports and assessments prepared by ADEM for the CERCLA program under its existingCooperative Agreement Prior to EPA CERCLA involvement at this site, such delays weregenerally not observed.

EPA's assertion that CERCLA is a more efficient process to address a complex site is notsupported by ADEM's experiences in Alabama. As noted above, the EPA CERCLA programdeclined to address the CCWWTP due to EPA's assertion that the CERCLA program would notbe able to devote the necessary resources to this project for at least'3-5 years. As a result,ADEM agreed to take the lead, and interim and final remedial measures are currentlyproceeding, and construction of required treatment plant upgrades are now moving forward. Asanother example, in 1993 EPA prepared a Record of Decision (ROD) for the Stauffer ChemicalCompany site in Mobile County. EPA took over the remedial design investigation and theremediation project from the facility under the premise that the Agency could complete theremediation at a faster pace than the facility. The original ROD for Operable Unit (OU) 3 calledfor the excavation of approximately 650 acres of wetlands, virgin timber, and areas of significanthistorical and archeological significance. Furthermore, the agency proposed to assess monetarypenalties to the responsible parties for National Resource Damages associated with its selectedremedy. Six years later, in 1999, when no progress had been made, a local citizens group andADEM requested that the ROD be amended to allow implementation of a remedy lessdestructive to the wetland (J. Wan- to J. Hankinson, 9 April 1999, Correspondence). Only afterinquiries from the offices of Alabama Senator Richard Shelby did the Agency reluctantly agreeto re-evaluate its selected remedy in. favor pf this less intrusive, less damaging approach.Although some additional sampling and evaluation has been conducted, up date, some three (3)additional years later, the ROD has yet to be amended, and remedial action has yet to begin. Athird example is the case of OU-2 at the Olin Corporation iacility in Mclntosh, AL which

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involves mercury contaminated sediments in the Olin Basin, an oxbow lake on theTombigbeeRiver. Though listed on the NPL in 1984, a Record of Decision has yet to be issued on this site.

Finally, in accordance with the provisions of the National Contingency Plan (NCP), any short- orlong-term remedial action taken pursuant to CERCLA must address and adhere to appropriate,relevant and applicable requirements (ARARs) associated with other environmental statues (e.g.?RCRA, the Clean Water Act, the Clean Air Act, etc.). ADEM has experienced reluctance on thepart of EPA to address State ARARs .in CERCLA response actions. For example, duringimplementation of a ROD for a portion of the Interstate Lead Company (ILCO) site located inShelby County, wastes (used tires) were discovered during the remediation effort which were notanticipated at the time of ROD approval. Only after repeated demands by ADEM over severalmonths has EPA agreed to consider that the excavated tires must be properly disposed pursuantto state solid waste requirements. EPA's position has been that, since the tire issue was notidentified prior to ROD approval (due to the fact the tires were buried)., the state solid wasteregulations were not considered to be applicable, relevant, and appropriate requirements(ARARs) under the CERCLA action. ADEM is hopeful that this issue will be satisfactorilyresolved soon, since EPA has verbally agreed to re-evaluate the matter.

ADEM is concerned that placing the Solutia facility under EPA CERCLA oversight will result ineven more delays in adequately addressing the environmental issues at the facility. In the case ofState-led RCRA corrective action, EPA plays an important role in overseeing the state action andensuring timely and appropriate responses through the state program and grant evaluationprocess. However, in the case of an EPA-led response through a device such as the proposedconsent decree, there is no direct outside oversight to ensure the community that EPA'sresponses are timely and appropriate.

Effect on Federally Authorized State RCRA Programs

ADEM operates a fully authorized RCRA hazardous waste program, which means that the stateprogram operates in lieu of the federal program. Pursuant to RCRA, a state program must beconsistent with, and can be-no less stringent than the federal RCRA program implemented byEPA. EPA has a long-standing position that the federal RCRA corrective program is equivalentto the CERCLA remediation program, as evidenced by various written policy documents,specifically including, but not limited to, the 1996 deferral policy (attached). Also, most EPAcorrective action and remediation guidance, including risk assessment guidance, has beendetermined by EPA to apply to both the federal RCRA and CERCLA programs. Given thesefacts, it would appear that the remedial elements of a federally authorized RCRA CorrectiveAction program are by definition no less stringent than the federal CERCLA program (i.e.,RCRA and CERCLA are equivalent, and a state hazardous waste program must be consistentwith and no less stringent than RCRA).

ADEM's program has routinely been determined by EPA to be an adequate program in the areaof RCRA Corrective Action and EPA has never attempted to withdraw ADEM's AHWMMAcorrective action program authorization. As part of its oversight of ADEM, EPA also conducts aformal review of Alabama's hazardous waste program at least once per year. EPA has not

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identified any significant deficiencies with ADEM's hazardous waste corrective actionauthorities, or its implementation of those authorities. AD EM was recently provided a draftreport of the annual review for the fiscal year 2001 (attached). This draft report states, "Inaddition to handling a number of large and complex corrective action projects, the program ismanaging two of the most complex and controversial RC&4 facilities within Region 4 (referringto the Anniston PCS site as well as the Annision Chemical Weapons Demilitarization Facility].These facilities require a lot of technical resources for normal program requirements and a lotof managerial resources to deal with a continuing stream of questions and issues raised by newsmedia and citizen groups. Despite all of this, ADEM's RCRA program has been able to continuedoing high quality work and made excellent progress toward meeting national goals set for theRCRA program,"

The only circumstances where the takeover of an authorized state hazardous waste correctiveaction facility by federal CERCLA would be appropriate is in a case where either: (1) the staterequests and agrees to such action on a facility specific basis; or (2) EPA makes a formaldetermination pursuant to the RCRA authorization statutes and regulations, that the authorizedstate program no longer qualifies for authorized program status, and formally withdraws suchauthorization, affording the state all applicable due process. Neither is the case here.In a situation such as the one in Anniston, it would therefore appear that EPA would in fact beprohibited from attempting to enter into an agreement with a RCRA regulated facility (such asthe Monsanto/Solutia facility), or otherwise attempting to wrest control of the remediation ofsuch a facility from the state hazardous waste program and move it to the federal CERCLA,especially where a corrective action requirement is already in-place and being enforced by thestate, because such action would: (1) constitute an attempt to usurp the state's authorizedprogram status without the due process afforded under the RCRA authorization statutes andregulations; (2) usurp the state's right under RCRA to be more stringent (or different, but no lessstringent than RCRA), as guaranteed pursuant to the RCRA statute; (3) shield the regulatedentity (responsible party) from legal enforcement by a state duly authorized by EPA and federallaw to conduct such enforcement; (4) constitute EPA's forcing an issue of unequal treatment ofregulated RCRA facilities in the subject state; and (5) serve to undermine the legitimate,effective enforcement of the duly authorized state hazardous waste program by creating asituation where regulated entities would seek shelter pursuant to CERCLA from a state whichchooses to use its right to be more stringent, or different but no less stringent, than RCRA asallowed by long-standing federal law. The effect of such an undermining of the RCRAauthorization process, whether intentional or not, would have a devastating effect on the abilityof all authorized state programs (not just Alabama's) to implement an effective hazardous wasteprogram.

It would also appear that the CERCLA program would be permitted to act only in a secondaryrole ai sites which historically are jointly regulated by an authorized state hazardous wastecorrective action program. The extent to which deferral to CERCLA under the established EPAdeferral policy occurs would be, first and foremost, at the discretion of the authorized statehazardous waste program.

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Effect on Current Progress toward Implementing Final Remedies

Unlike the comprehensive state permit requirements it seeks to pre-empt, the proposed consentdecree only addresses the Remedial Investigation and Feasibility Study (RI/FS). Although theproposed decree expresses the intent to give credit for work already performed, it requires anumber submittals which have already been provided and reviewed under the State RCRApermit. For example, conceptual site models, RFI work plans (which are equivalent to RJ/FSwork plans), and sampling and analysis plans have already been completed for many of the areasaddressed by the State RCRA permit. This can only result in considerable effort that will bewasted re-creating existing information about the site. This is consistent with ADEM's pastexperience with the RCRA and CERCLA programs. For example, at the time EPA placed theMSFC and Redstone Arsenal federal facilities on the NPL, it was estimated by the facilities thatthey spent approximately one to two years re-conducting and re-documenting work that hadpreviously been conducted under their on-going RCRA corrective action program, which at thetime was jointly administered by EPA and ADEM. Much of this seemingly unnecessary effortwas reportedly not due to changes in the content or breadth of information, but merely to put itinto the form preferred by the CERCLA program. Similar experiences have been relayed byother facilities faced with over-lapping RCRA and CERCLA authorities.

Further, since the proposed consent decree only addresses the RI/FS, any needed short- or long-term remedial actions identified during the course of this investigation would require thenegotiation of at least one, and likely multiple, additional agreements in the future. Given thatthe current proposed decree has taken more than a year to negotiate, and the historical reviewtimes for remedial documents, this does not bode well for an expeditious PCB cleanup in theAnniston area. As previously discussed, ADEM's experience demonstrates that the RCRAcorrective action program is better positioned to expedite cleanup due to its increased flexibilityand more comprehensive coverage'of the issues. The Department notes that under both thecurrent state RCRA permit and in the proposed consent decree, the facility directly bears theburden and cost of conducting the investigation and cleanup, so there is no advantage of theconsent decree over the permit in this regard. EPA's ultimate oversight of the cleanup would notbe diminished by staying with the current RCRA permit, since EPA retains oversight authority ofthe authorized state program, as prescribed by federal law and regulation.

Effect on Legitimate Common Law Public Nuisance and Liability Claims

The timing of this consent decree is questionable. Entry of the decree at this time, and in themanner proposed, will place EPA hi position to be used as a shield to protect a responsible partyfrom the legitimate implementation of a federally authorized state program, as well as from thelawful jurisdiction of a state court addressing pollution liability and common law public nuisanceissues. Such a consequence is untenable. It would appear that the needs of the Annistoncommunity would be better served by continuation of the investigation and remediationmomentum currently being achieved via the comprehensive state RCRA permit to address PCBcontamination attributable to releases from the facility, with EPA continuing to provide strongfederal oversight and support of the authorized state hazardous waste program. If it isdetermined that there are areas of contamination which cannot be effectively addressed by the

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existing permit, then EPA and ADEM should work together to implement appropriate measuresto specifically address such areas. As a parallel course of action, the current and pending civillawsuits by affected citizens can run their course in the state and federal courts. If changes ro theactions of ADEM and EPA are subsequently required to address the ultimate decision(s) of thecourts in these cases, then these changes could be addressed once the lawsuits arc final. Thetiming of the entry of the consent decree sends an inappropriate message to the regulatedcommunity - that "CERCLA is a safe haven from state regulations and civil proceedings, and theanswer to one's legal problems".

Issues Surroundingthe

Small Business Liability Relief and Brownfields Revitalization Act

On January 11,2002, the President signed into law the Small Business Liability Relief andBrownfields Revitalization Act (the Brownfields Act). The Act's official title as introducedstates its purpose:

"To provide certain relief for small businesses from liability under the ComprehensiveEnvironmental Response, Compensation, and Liability Act of 1980, and to amend such Act topromote the cleanup and reuse of brownfields, to provide financial assistance for brownfieldsrevitalization, to enhance State response programs, and for other purposes (emphasis added)."The takeover of a federally authorized State response program is contrary to the statedcongressional intent of this act, which was to bar EPA from "second-guessing" a legitimate Stateresponse action.

No where is this more clear than on the floor of the United States Senate and House ofRepresentatives during debate over this Act. Senator Voinovich of Ohio stated "What we do notneed are delays caused by the U.S. EPA's second-guessing State decisions....States are leadingihe way in cleaning up sites more efficiently and cost effectively. " As indicated previously,delays in moving the Anniston PCB site investigation forward have already been experienceddue to CERCLA review of State response actions. ADEM agrees with Senator Voinovich that,for the areas covered by the State RCRA permit, the State can move forward on remediationmuch faster and more cost effectively. Senator Bond of Missouri stated "If we are going to givethe responsibility to the State, EPA must step back and let the States run the programs and EPAmust first work with the State before overstepping and taking enforcement actions." Thisposition was echoed by Representative Duncan of Tennessee who stared, "Nothing in this billshould be read to encourage Federal intervention when brownfields sites are being cleaned upunder State programs. The intent of this bill is to prevent unnecessary Federal involvement."ADEM concurs with the advice of Senator Bond and Representative Duncan, and believes thatEPA should defer CERCLA actions to the State program for areas that are currently beingaddressed by the State RCRA permit Senator Boxer of California stated "....if a State'soversight of a cleanup fails to protect our citizens or our environment, the Federal Governmentcan intervene. We are clear that we want the State to be responsible, but if there is a problemwhich will result in an immediate threat to people's health, the EPA can enter. " She furtherstated that "we need to preserve the federal government's ability to use Superfimd authorities to

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deal -with dangerous situations at sites cleaned up under state programs in the rare case in whichthe cleanup is inadequate and there is a threat to human health or the environment. " EPA hasnever alleged that the State of Alabama's oversight of its RCRA Corrective Action has failed,and ADEM is confident that Senator Boxer would agree that EPA's takeover of this site isinappropriate. Senator Crapo of Idaho stated "To effectively encourage more brownfieldsredevelopment programs, we have to provide the necessary resources, give the Stares themanagement and oversight responsibility within their borders... " The CERCLA takeover of asite being addressed under a federally-authorized State response program could discourage otherStates from developing similar programs and from taking the lead oversight role. Senator Levinof Michigan stated "... ihe bill provides greater certainty to developers and parties conductingthe cleanup, ensuring that decisions under state programs will not be second-guessed, " EPA'sactions with the proposed consent decree weakens the "certainty" of which Senator Levin speaksof. If a federally authorized hazardous waste corrective action program, which has regularlyreceived favorable reviews (and even praise for its actions related to the site in question) is to beusurped in the manner proposed in the partial consent decree, what confidence can any developeror other party have that EPA will recognize any state cleanup program decision? Such an actionwould destroy the very basis of Congressional intent before the legislation even has anopportunity to succeed. Senator Smith of New Hampshire said "Simply stated, our bill providesan element of finality that does not exist today in current law. While allowing for Federalinvolvement under specific conditions, current law allows EPA to act whenever there is a releaseor a threatened release. Again, current law allows EPA to act whenever there is a release orthreatened release This bill changes that requirement, ups the ante a little bit, and providesfour things: One, EPA to find that "the release or threatened release may present an imminentand substantial endangerment to public health, welfare or the environment" and after taking intoconsideration response activities already taken, "additional response actions are likely to benecessary to address, prevent, limit, or mitigate the release or threatened release. " SenatorLevin stated "one of the protections built into this bill was the provision that if, as the Statemoves forward, an imminent and substantial endangerment is found to the environment or publichealth, then the Federal Government, through the EPA, can siep in and take some remedialactions. Short of that imminent and substantial endangerment, it is the State's responsibility foraction. " Senator Crapo stated "The language included in the bill says imminent and substantialendangerment must be found by the Federal Government before it can step in and supersede aState's actions, which is the intent of all of us who have worked on this legislation That gives theStates truly an opportunity to have finality to their decisions about how to implement this law. "ADEM has addressed, with EPA's direct concurrence, imminent and substantial threats to humanhealth and the environment in areas subject to the State RCRA permit, hence the responsibilityfor oversight of final remediation on these areas must remain with ADEM, as Senators Crapo,Levin, and Smith suggest.

Portions of the City of Anniston have been designated a Brownfields Assessment Pilot. ThePilot targets three specific city-owned abandoned sites in West Anniston which are also withinthe scope of the proposed consent decree, as well as other sites to be named in the future inaccordance with priorities determined by the community. These areas, and the overall PCB site,appear to meet the definition of a 'brownfield site' as that term is defined by §101(39)(A throughC) of CERCLA (as amended). Under § 128(b) of CERCLA (as amended), EPA is barred from

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taking any administrative or judicial enforcement actions at these sites being addressed under aneffective State response program. For this reason alone, the proposed partial consent decreeshould be withdrawn.

Furthermore, the consent decree, as currently proposed, jeopardizes any future brownfieldsrevitalization funding to eligible parties for areas within its scope. Under CERCLA (asamended) the President may authorize brownfields revitalization funding to eligible parties on asite-by-site basis (§ 101(3 9)(C)). However, a facility that is the subject of an administrative orderon consent or judicial consent decree that has been entered into under CERCLA, are specificallyexcluded from this site-by-site determination provision. Therefore, the President would beprohibited from distributing brownfields revitalization grants to the City of Anniston, CalhounCounty, the State of Alabama, or any other eligible party for any areas within the scope of the •proposed consent decree, if entered in its current form. This prohibition does not apply to areassubject to permits issued pursuant to RCBA- It would therefore seem that the citizens of the Cityof Anniston and surrounding areas would be in a better position to receive much needed federalgrant dollars, which can be used to facilitate industrial revitalization, fund medical monitoring,and fund long-term maintenance of institutional controls, if remediation of these areas wereallowed to continue under the lead oversight of ADEM in accordance with the State RCRApermit and in accordance with EPA's established deferral policy.

As EPA and DOJ are aware, the Anniston community has repeatedly requested medicalmonitoring assistance tor those persons exposed to PCBs and other contaminants in the area ofthe site. In the April 16,2002 public meeting regarding the proposed consent decree, EPAofficials noted that they had no statutory authority to require the facility to provide suchmonitoring. ADEM finds it interesting that EPA is promoting a course of action which wouldappear to specifically exclude the Anniston community from a source of federal funding for suchmonitoring. The importance of such federal funding has been recognized by members ofCongress. In its report to the Senate regarding amendments to Senate Bill 350 (BrownfieldsRevitalization and Environmental Restoration Act of 2001), members of the Committee onEnvironment and Public Works noted that "It is important that a brownfields bill maximize theassistance provided to communities that have been disproportionately impacted by brownfields;in particular, low-Income minority communities that are least able to address the problems ontheir own. " Thus, §104(k)(4)(C)(i) of the brownfields legislation authorizes the award of grantfunding for medical monitoring of affected citizens, but only to those eligible for brownfieldsfunding under the act. As discussed above, entry of the proposed partial consent decree wouldrender this community ineligible for such funding.

Finally, it would appear that EPA has failed to comply with §128(b)(l)(D) which requires anotification to the State of its intent to carry out action that may be barred, and wait 48 hours inorder for the State to reply. There are a number of exceptions to this provision stated in§128(b)(l)(B), all of which are inapplicable to this site. It should also be noted that under§128(b)(l)(E), EPA's actions in this case must be reported to Congress within 90 days from theinitiation of the enforcement action. This report must describe the basis for the enforcementaction, including specific references to the facts demonstrating that enforcement action ispermitted under §!28(b)(l)(B). The agency's report to the Senate Subcommittee on Veterans

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Affairs, Housing and Urban Development, and Independent Agencies on April 19, 2002 did notaddress these requirements.

Conclusions and Recommendations

ADEM stands ready to continue working with EPA to address the environmental issuessurrounding the Anniston community. But this must be done in a manner that maximizes thespeed, efficiency and effectiveness of the cleanup efforts without comprising the integrity andauthority of the State regulatory programs or judicial system. The Department respectfully asksthe agency and the Department of Justice to consider not only the issues raised by ADEM in thisanalysis, but those of the pubic as well. The Department specifically asks that the consentdecree be withdrawn until sue h time as the State civil proceedings in this matter are allowed toconclude, thus avoiding any interference with the legitimate common law claims of our citizens.In addition, we ask that any future agreements developed under CERCLA between EPA, DOJ,and the responsible parties sp jcifically exclude those areas previously designated as brownfieldsites as well as areas addressed by the State RCRA permit, so as to ensure consistency with long-standing EPA policy and to e isure compliance with federal and State law.

Attached to this letter is a list of references usedconsent decree. Copies of seljected referencesDOJ.

Thank you for your attentionanalysis of these issues, pleas(334)271-7700.

Respectfully,

in this matter. Should you have any questions regarding ourcontact Mr. Chip Crockett or Mr. Stephen Cobb of my staff at

Wm. Gerald Hardy, ChiefLand Division

WGH/VHC:\\File_serverMani

cc: Craig Kneisel,Senator Max BaucusSenator Christopher BondSenator Barbara Boxe •Senator Hillary ClintonSenator Jon CorzineSenator Michael CrapiSenator Tom DaschleSenator Joe LiebermauSenator Carl Levin

in the Department's analysis of the proposedare also attached for consideration by EPA and

L\Scotf 3 SolutiaNCD CorrunentsNCD Coraments_Final.doc

Alabama Attorney General's Office (with attachments)

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Senator Barbara MitcujlskiSenator Jeff SessionsSenator Richard SheltyySenator Bob SmithSenator Trent LottSenator George VoincivichRepresentative Bob RileyRepresentative John puncanMarianne Horinko, EPA OSWERMichael Shapiro, EPA OSWERElizabeth Cotsworth, EPA OSWBarry Breen, EPA OSREElaine Davies, EPA OERRStan Meiburg, EPA Region 4Richard Green, EPA Region 4 WMDBill Anderson, EPA Region 4 EADASTSWMO Board of DirectorsSenior Cleanup CouncilOlivia Jenkins, ADEM OGCJames Wright, ADEM OGC

Attachments

File: Solutia, Inc.; Calhoun CountyALD004019048Type H, Correspondence

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REFERENCES

ADEM (John A. Poole Jr.).. Letter to United States Environmental Protection Agency (James S.Rutzman). March 21, 1996.

ADEM (Jim Grassiano). Memorandum to USEPA, Region 4 (Russ McLean). February 9, 1999.p

ADEM (James W. Warr). Letter to United States Environmental Protection Agency (John H.Hankinson). April 9, 1999.

ADEM (Wm. Gerald Hardy). Letter to United States Environmental Protection Agency (RichardD. Green). July?, 1999.

ADEM (Wm. Gerald Hardy). Letter to United States Environmental Protection Agency (RichardD. Green). June 29,2001.

ADEM. Summary of Activities Solatia Inc. -Anniston Facility. Januajy 30, 2002.

Small Business Liability Relief and BrovmfieldsRevitalization Act. (P.L. 107-118, H.R. 2869).January 11,2002.

Solatia, Inc. (Alan G. Faust). Letter to ADEM (Wm. Gerald Hardy). January 14.1999.

Solutia, Inc. (Craig R. Branchfield). Letter to ADEM (Stephen A. Cobb). August 7,2001.

United States Environmental Protection Agency (Steve A. Herman and Elliott P. Laws).Memorandum to RCRA/CER.CLA National Policy Managers. September 24,1996.

United States Environmental Protection Agency. "Memorandum of Agreement Between theState of Alabama and the United States Environmental Protection Agency Region 4.October 19, 1998.

United States Environmental Protection Agency (Narindar M. Kumar). Letter to ADEM (GeraldHardy). October 10, 2000.

United States Environmental Protection Agency. "EPA Brownficlds Assessment DemonstrationPilot" April 2001. <httpy/www.epa.gov/swerosps/b£litml-doc/'aannist.htm>.

United States House of Representatives. Small Business Liability Protection Act Debate.December 19, 2001. Retrieved from < http://thomas.loc.gov/cgi-bin/query/C?rl 07:./temp/~rl07rLqSjO

United States Senate. Committee on Environment and Public Works. Brownfields Revitalizationand Environmental Restoration Act of 2001. (to accompany S. 350). (S. Rpt.107-2).March 12,2001.

.05/28/2002 10:14 FAJ 236 231 8451 SOLUTIA ALLAN TOPAL 21015/015

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United States Senate. Bro-wnfields Revitalization and Environmental Restoration Act of 2001Debate. April 25,2001. Retrieved from <http://thomas.loc.gov/cgi-bin/query/R?rl07:FLD001:S03880>

United States Environmental Protection Agency (Jewell Grubbsj. Letter to ADEM (Win. GeraldHardy). March 6,2002.

United States Environmental Protection Agency (Craig Brown). CCWWTP Spoils Pile. Emailto ADEM (Scott Story). March 6, 2002.

United States Environmental Protection Agency (Richard D. Green). Letter to ADEM (StephenA. Cobb). May 8, 2002.