SITE: BREAK: to OTHER- 5&58(2 SULLIVAN©

Superfund Records Center SITE BREAK to OTHER- 5amp58(2

Sullivan amp Worcester LLP T 202 775 1200 1666 K Street NW F 202 293 2275WORCESTER Washington DC 20006 wwwsandwcom

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July 10 2014

Via Electronic Mail

Ms Anna Krasko Remedial Project Manager United States Environmental Protection Agency 5 Post Office Square Suite 100 Mail Code OSRR07-1 Boston Massachusetts 02109 KraskoAnnaepagov

Re Centredale Manor Restoration Project Superfund Site - Administrative Order for Remedial Design Remedial Action and Operation and Maintenance (US EPA Docket No CERCLA-01-2014-0024)

Dear Ms Krasko

Pursuant to Section VII of the Administrative Order for Remedial Design Remedial Action and Operation and Maintenance (the Order) Emhart Industries Inc (Emhart) and Black amp Decker Inc (Black amp Decker) (collectively Respondents) hereby provide written notice of their intent not to comply with the terms of the Order and assert that they have sufficient cause defenses under Sections 106(b) and 107(c)(3) of the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA) 42 USC sectsect 9601 etseq The factual and legal bases for Respondents sufficient cause defenses may be found in the pleadings filed and in the fact record and scientific evidence developed as part of the discovery in the consolidated cases of Emhart Industries Inc v New England Container Co Inc et al CA No 06-218-S (DRI) and Emhart Industries Inc v United States Dept of the Air Force et al CA No 11-023-S (DRI) (Consolidated Cases) to which EPA is a party and also in the administrative record developed as part of EPAs Administrative Proceeding concerning the Centredale Manor Restoration Project Superfund Site in North Providence Rhode Island (the Site)

Moreover EPA has invoked the authority of the Court to determine Emharts responsibilities if any Having done so its action in purporting to issue an executive order is unlawful and raises constitutional issues concerning the right of the Article Two executive agency to issue orders on a matter presently before the Article Three court Such action is an impertinent attempt to usurp rights under the US Constitution In addition the issuance of orders and the making of findings by an administrative agency of the executive in contravention of the right to notice hearing and opportunity to be heard by an independent hearing officer on a defined record violates Emharts and Black amp Deckers rights under the Administrative Procedure Act and the US Constitution The entire proceeding suffers from major procedural administrative and constitutional violations in derogation of Emhartsand Black amp Deckers rights under law and the US Constitution In sum EPA would attempt to usurp the province of the Court that will shortly be deciding whose dioxin is on the site That decision will be binding on EPA potentially rendering its order a nullity

The only factual information known to Respondents regarding the Site was collected through discovery in the Consolidated Cases and as part of EPAs Administrative Proceeding This record conclusively demonstrates that there is no factual evidence witness testimony or scientific evidence of

W0269328 11 1

BOSTON LONDON NEW YORK WASHINGTON DC

any releases of dioxins furans or other hazardous substances into the environment at the Site from Metro-Atlantic Incs operations including its hexachlorophene (HCP) manufacturing process Moreover the US Government failed to identify any such evidence in response to Respondents interrogatory requests

Conversely the factual evidence witness testimony and scientific evidence demonstrate that dioxins furans and other hazardous substances were released at the Site as a result of the New England Container Companys (NECC) drum reconditioning operations and waste disposal practices over the span of approximately 20 years from 1952 to 1972 Despite the overwhelming fact record to the contrary EPA has ignored compelling factual and scientific evidence to develop a set of unsupportable Findings of Fact and legal conclusions As demonstrated by Respondents responses below EPA has engaged in conduct that is arbitrary and capricious and otherwise not in accordance with the law which has undermined the validity of EPAs analysis throughout the Administrative Proceeding and has carried over to the Record of Decision selected remedy and the issuance of this Order Further having sought relief in the Court EPA ignores that under the case management order the issues will be decided in trial in the first half of 2015

EPA perhaps because of a conflict of interest between two agenciesof the United States ignores the overwhelming evidence that the likely source of the dioxin contamination alleged to have been found on the Site is the U S Government itself First the scientific evidence shows that the 2378-TCDD alleged to be on the Site could not have originated in the raw material supplied to Metro-Atlantic but rather it originated from a purified product in use in the period subsequent to 1965 for tactical military herbicides and possibly other herbicides used by the US military It also ignores the total lack of explanation from the US Department of Defense parties It does not even consider the fact that the congener profile of the 2378-TCDD detected on the Site matches almost identically the congener profile of 2378-TCDD defected where tactical military herbicides were used in Vietnam

Finally there is an inherent conflict qf interest in one executive agency making findings relating to another executive agency in favor of the executive and against a private party There is no lawful or constitutional way that that the US Government can adjudicate a claim against itself which is what the EPA Order purports to do by virtue of issuing the Order to Respondents

In support of Respondents sufficient cause defenses selected factual and legal bases are set forth below and in the documents attached hereto as Exhibit A This is not meant to be an exhaustive list Rather Respondents rely on the entire fact record developed in the Consolidated Cases and in EPAs Administrative Proceeding Because the fact record in the Consolidated Cases is still being developed and remedial pre-design studies are being conducted Respondents reserve the right tosupplement this response as appropriate

As a preliminary matter and as set forth in further detail in Paragraph 4 below Black amp Decker denies that it is the corporate successor to Atlantic Chemical Company Metro-Atlantic Inc and Crown-Metro Inc and therefore has sufficient cause for declining to comply with the Order Moreover for reasons including those set forth in detail below Enihart has sufficient cause for not complying with the Order because (I) there is no factual basis to support EPAs claim that Metro-Atlantic released dioxin or any other hazardous substances at the Site (2) there is no scientific evidence to support EPAs claim that Metro-Atlantic released dioxin or any other hazardous substances at the Site (3) the fact and expert scientific evidence demonstrates that dioxin and other hazardous substances released at the Site were the result of NECCs incineration operations and the handling Of its customers drums (4) even if dioxin was released from the HCP manufacturing process which the evidence shows it was not the release was only in the Area B portion of the Site and is therefore divisible and (5) the EPA Findings of Fact misunderstand the issues and applicable law regarding the case of Enihart Indus Inc v Home Ins Co el

tVV0260328 11 2

u CA No 02-053-ML (DRI) (Home Insurance Case) and in any event ignore the weight of evidence

Emhart and Black amp Decker further respond to EPAs Findings of Fact as follows

A Description of the Site and Sources of Contamination (1113-34)

3 In response to Finding No 3 of the Order Emhart and Black amp Decker assert that the Site is geographically divisible into four separate areas (A B C D) based on operational history nature and extent of contamination fate and transport mechanisms physiography and the locations of EPAs interim response actions and thus Respondents have a divisibility defense under relevant case law

4 In response to Finding No 4 of the Order Black amp Decker denies that it is the corporate successor to Atlantic Chemical Company Metro-Atlantic Inc and Crown-Metro Inc based on applicable principles of corporate law and the relevant corporate history In 1989 The Black amp Decker Corporation a publicly traded holding company through its wholly-owned subsidiary Black amp Decker Inc acquired through a tender offer the publicly traded shares of Emhart Corporation At the time Emhart Industries Inc was a wholly-owned subsidiary of Emhart Corporation Emhart Corporation and Emhart Industries Inc accordingly became indirect subsidiaries of The Black amp Decker Corporation The 1989 transaction was not a merger and the aforementioned entities continued to exist and their respective liabilities remained legally distinct and separate thereafter

5 In response to Finding No 5 of the Order the fact record developed as part of the discovery in the Consolidated Cases and as part of EPAs Administrative Proceeding do not support Finding No 5 that [a]s a part of its operations EmhartBlack amp Decker used andor generated hazardous substances including dioxin (including 2378-tetrachlorodibenzo-p-dioxin (2378-TCDD)) polychlorinated biphenyls (PCBs) pesticides volatile organic compounds (VOCs) semi-volatile organic compounds (SVOCs) (including polycyclic aromatic hydrocarbons (PAHs)) andor metals at the Site Specifically Metro-Atlantics product lists and product sheets from the 1950s do not support the assertion that Metro-Atlantic used andor generated hazardous substances including PCBs pesticides SVOCs and metals2 As further detailed below even if it could be established that Metro-Atlantics operations at the Site did use andor generate any of these substances there is no evidence of releases to the environment from the Metro-Atlantic manufacturing operations See also Response to Finding No 6

Respondents do not dispute that Metro-Atlantic manufactured hexachlorophene from trichlorophenol shipped to the Site and that 2378-TCDD is a contaminant present in trichlorophenol Simply asserting this fact is not sufficient to demonstrate that the 2378-TCDD identified in Site samples came from the trichlorophenol (245-TCP) that Metro-Atlantic used as a starter material to produce its HCP There also must be evidence of a release As further detailed below no 2378-TCDD or any other dioxin or furan was released to the environment from the Metro-Atlantic I ICP manufacturing process or otherwise from Metro-Atlantics operations at the Site See also Response to Finding No 6

See eg Expert Report of John R Kastrinos PG PHG LSP (Jan 15 2009) (describing the four separate areas) Expert Reports of John R Kastrinos PG PHG LSP (Dec 24 2009 Mar 31 2010 Jan 102011 and Nov 112011) See eg Emhart Industries Inc v New England Container Co Inc el al CA No 06-218-S (DRI) (NECC Case) Dep of J Buonanno (Jan 142009) Ex 3

W02A932XI I 3

6 In response to Finding No 6 of the Order the fact record developed as part of the discovery

in the Consolidated Cases and as part of EPAs Administrative Proceeding do not support

Finding No 6 that Respondents engaged in activities that led to releases or threats of

releases of hazardous substances including dioxin PCBs VOCs SVOCs pesticides andor

metals at the Site as part of its operations First there is no evidence from historical records

expert reportstestimony or testimony of former workers and others with knowledge of

Metro-Atlantics operations that establish that any releases occurred On the Site from Metroshy

Atlantics manufacturing operations1Second Metro-Atlantics operations including its

HOP manufacturing facility were connected to the municipal sewer system and all aqueous

waste would have been disposed in the scwcr4 Further starting in 1963 Metro-Atlantics

operational practice was to put solid wastes including any Nuchar (activated carbon) from

its HCP manufacturing process into dumpsters and haul it offsite5 Third according to the

deposition and written sworn statement of Thomas Cleary releases during the HCP

manufacturing process would have been unlikely given the manner in which chemical

materials were handled and the equipment used6 Fourth expert technical analysis shows that

the dioxin and furan congener and homologue profiles present in soil and sediment at the

Site are inconsistent with the polychlorinated dibenzo-p-dioxin (PCDD) and

polychlorinated dibenzofuran (PCDF) congener and homologue profiles that would have

been present in the crude Na-245-TCP solution obtained by Metro-Atlantic exclusively

from the Diamond Alkali Company (Diamond Alkali) as a raw material for use in the HCP

manufacturing process7 Expert technical analysis further shows that spatial and temporal

patterns of 2378-TCDD dioxin contamination on the Site are inconsistent with and cannot be

explained by a release from the HCP manufacturing process8

7 In response to Finding No 7 of the Order it is not relevant in the context of this proceeding for EPA to rely on the assertion that documents from legal proceedings related to the Site contain information to support that Emhart engaged in activities that led to releases or threats of releases of hazardous substances including dioxin PCBs VOCs SVOCs pesticides andor metals at the Site Emhart is not bound by the factual understandings or arguments set forth in documents or stated in oral argument in the Home Insurance Case9 Nor is Emhart bound by the reports or

3 See eg Expert Report of William W Locke PE (Oct 28 2013) pp 1-3 - 1-6 4 See eg Home Insurance Case Exhibit 106 (North Providence Town Council Meeting Minutes July 6 1964) Home Insurance Case Test of J Buonanno (Sep142006) v 2 p 85 Home Insurance Case Dep of D Paterson (Dec 202002) p 9 Home Insurance Case Dep of J Priest (Jan 172003) pp 25-26 Home Insurance Case Dep of J Buonanno (Jan 172003) pp 15-17 116 Consolidated Cases Dep of J Buonanno (May 13 2013) pp 70shy73 124-126 Consolidated Cases Dep of C Maine (May 222013) p 28 Expert Report of Lawrence R Smith (Sept 192013) pp 158 5 See eg Home Insurance Case Dep of J Nadeau (Dec 172002) p 66 In Re Matter of Centredale Manor SvperfundSite North Providence Rhode Island Dep of JTurcone (Nov 30 1999) pp 13-15 Home Insurance Case Dep of J Turcone (Dec 162002) pp 44-45 NECC Case Dep of J Nadeau (Nov 242008) pp 82-83 NECC Case Dep of J Buonanno (Jan 14 2009) p 54 Consolidated Cases Dep of J Buonanno (May 132013) pp 118-120 Expert Report of William W Locke PE (Oct 282013) p 3-8 6See eg Statement ofT Cleary (Apr 82008) 7 See eg Expert Reports of James R Kittrell PhD (Jan 72011 and Nov 72011) Expert Reports of Gregory C Fu PhD (Jan 720II and Nov 42011) See eg Expert Report of William W Locke PE (Oct 282013) pp 5-1-5-23 9 SeeAlternative Sys Concepts v Synopsys Inc 374 F3d 23 33 (1st Cir 2004) see also 1500 Mineral Spring Assoc LP v Gencarelli 355 BR 771 784 (DRI 2006) (where defendant was unsuccessful in a prior proceeding in showing that he terminated certain leases he was not precluded from asserting a contrary position in the current proceeding) Martel v Stafford 992 F2d 1244 1248 (I st Cir 1993) URI Cogeneration Partners LP v Bd of Governorsfor Higher Educ 915 F Supp 1267 1288 n 6 (DRI 1996) (Legal suppositions advanced by counsel

W0269328 11

testimony by its experts from that matter relied on by EPA because the experts were not Emharts employees or agents and will not be testifying further in the instant matter10 Moreover the Home Insurance Case was an entirely separate proceeding with different facts and different legal questions The question in an insurance coverage context was whether there was a reason to test for contaminat ion at the Site during the insurance policy period and if so would that investigation have led to the discovery of contamination EPA is now improperly attempting to repurpose that litigation for its use in creating Findings of Fact to support its issuance of the Order

Further Finding No 7 ignores the fact that the positions advanced by Emhart in the Home Insurance Case were ultimately rejected by the jurys findings which were subsequently entered as judgment and affirmed on appeal The jury instructions and verdict suggest that there were no releases at the Site from Metro-Atlantics HCP manufacturing operations and therefore no reason to test for contamination existed during the policy period12 Moreover in denying Emharts Motion for Summary Judgment in that matter Magistrate Judge Lovegreen specifically noted that thatthe EPA is not clear about which of the many PRPs contributed to the contamination at the Site or to what extent10 Finally Magistrate Judge Lovegreen found that there is no clear attribution of the contamination solely to Emharts predecessors to the exclusion of other suspected causes14 Thus Finding No 7 contains no proven facts upon which EPA can rely without an independent basis for making such a finding EPA has not provided this basis

Finally the documents expert reports testimony and trial presentation in the Home Insurance Case occurred before Emhart had the benefit of an additional ten (10) years of investigations conducted of the Site and the discovery in the Consolidated Cases The factual record in this proceeding supports Emharts current understanding that there is no evidence of releases on the Site from Metro-Atlantics operations including its HCP manufacturing facility See also Response to Finding No 6

8 In response to Finding No 8 of the Order see Response to Finding No 7

9 In response to Finding No 9 of the Order see Responses to Finding Nos 6 amp 7 Moreover Emharts expert in the Home Insurance Case stated that [industrial operations like [EmhartBlack amp DeckersJ (emphasis added) could result in accidental releases Emharts expert stated this as a general proposition applicable to industrial operations as a whole and did not attribute any releases directly to Metro-Atlantics manufacturing operations By using this statement as a Finding EPA ignored the courts instructions in the Home Insurance Case The court specifically limited the scope of experts testimony to their opinions on general industry practice and did not allow the experts to opine as to what may have happened during Metroshy

are not binding on the parties and have no evidentiary weight) see also Portela-Gonzalez v Sec y ofihe Navy 109 F3d 74 78(1st Cir 1997) (Equitable doctrines of estoppel apply in administrative and judicial fora ) 10 See Kirk v Raymark Indus Inc 61 F3d 147 163 (3d Cir 1995) (holding that an expert witness does not act as an agent of the party because an expert is not controlled by a party but is charged with the duty of giving his or her expert opinion regarding the matter before the court) see also Poriela-Gonzalez v Secy of the Navy 109 F3d 74 78 (1st Cir 1997) (Equitable doctrines of estoppel apply in administrative and judicial fora ) 1 1 See Emhart Indus Inc v Century Indemnity Co et al 559 F3d 57 (1st Cir 2009) 12 See Jury Verdict Emhart Indus Inc v Home Ins Co et al CA No 02-053-ML (DRI Oct 19 2006) FCF No 454

See Report and Recommendation Emhart Indus Inc v Home Ins Co el al CA No 02-053-M1(DRI Feb 15 2005) ECF No 220 i i I I

|W026932X 111

Atlantics specific operations15 This type of generalized opinion has been held to have little probative value in a case brought pursuant to CEROLA

10 In response to Finding No 10 of the Order see Responses to Finding Nos 6 amp 7 Moreover the experts statement in the Home Insurance Case is one of a general proposition regarding [n]ormal spills and leaks at former manufacturing sites in the 1980s and not one in which the expert attributes any such practice resulting in releases directly to Metro-Atlantics manufacturing operationsSee also Response to Finding No 9

11 In response to Finding No 11 of the Order see Responses to Finding Nos 6 amp 7

12 In response to Finding No 12 of the Order see Responses to Finding Nos 6 amp 7 Moreover the

experts statement in the Home Insurance Case is one of a general proposition of common and

acceptable practice at industrial manufacturing plants and not one in which the expert attributes

any such practice resulting in releases directly to Metro-Atlantics manufacturing operations See

also Response to Finding No 9 Also there is no evidence in the fact record to support a finding

that Metro-Atlantic utilized the Woonasquatucket River (River) water to dilute industrial

wastewaters Conversely there is evidence in the fact record of a drainage way leading from an

earthen pit used by NECC to wash drums towards the River and a waste disposal area used by

NECC to dispose of drum residue that had a drainage way and ditch outlets to the tail race and

impoundment17

13 In response to Finding No 13 of the Ordersee Responses to Finding Nos 6 amp 7 Moreover the experts statement in the Home Insurance Case is one of a general proposition and not one in which the expert attributes any such practice resulting in releases directly to Metro-Atlantics manufacturing operationsSee also Response to Finding No 9

14 In response to Finding No 14 of the Ordersee Responses to Finding Nos 6 amp 7 Moreover the

experts statement in the Home Insurance Case is one of a general proposition and not one in

which the expert attributes any such practice resulting in releases directly to Metro-Atlantics

manufacturing operationsSee also Response to FindingNo 9 Additionally there is undisputed

evidence in the fact record that Metro-Atlantics operations including its HCP manufacturing

facility were connected to the municipal sewer system thus any aqueous waste would have been

disposed in the sewerSee also Response to Finding No 20 Also there is no evidence in the fact

record to support a finding that still bottoms were disposed of on the land from Metro-Atlantics

operations Rather the testimony shows that there were no still bottoms created from the HCP

manufacturing process and any still bottoms from Metro-Atlantics other operations were

disposed of in a dumpster and hauled off the SiteiS See also Response to Finding No 6

Conversely testimony shows that NECC often disposed of drums and drum residue on the land19

15 See Emhart Indus Inc v Home Ins Co et al CA No 02-053-ML (DRI) Trial Transcript (Oct 6 2006) v 14 pp 66^67 bullSee NJ Tpk Aiith v PPG Indus Inc 197 F3d 96 108-09 (3d Cir 1999) 17See eg Expert Report of John R Kastrinos PG PHG lSP (Jan 152009) p 10 NECC Case Dep of R Nadeau (Nov 242008) pp 82-83 18 See eg Home Insurance Case Dep of J Nadeau (Dec 17 2002) p 66 In Re Matter of Centredale Manor SuperfundSite North Providence Rhode Island Dep of J Turcone (Nov 30 1999) pp 13-15 Home Insurance Case Dep of J Turcone (Dec 162002) pp 44-45 NECC Case Dep of J Nadeau (Nov 242008) pp 82-83 NECC Case Dep of J Buonanno (Jan 142009) p 54 Consolidated Cases Dep of J Buonanno (May 132013) pp 118-120

See eg In Re Matter of Centredale Manor SuperfundSite North Providence Rhode Island Dep of K Neri (Jun 30 1999) p 14

W0269328 111

15 In response to Finding No 15 of the Order see Responses to Finding Nos 6 amp 7 Also there is

no evidence in the fact record to support a finding that Metro-Atlantic buried drums20 and that

these drums exploded or burned on occasion In fact testimony shows that Metro-Atlantic did

not use steel drums in its manufacturing operations nor were drums seen in the HCP building21

According to Mr Vincent Buonanno the HCP building did not consume or generate drums so

NECC had no relationship with the HCP building22 Further it was Metro-Atlantics customers

that sold the empty drums back to NECC for reconditioning^ not Metro-Atlantic23 Conversely

testimony shows that NECC often buried drums on the Site24

16 In response to Finding No 16 of the Order see Responses to Finding Nos 6 amp 7 Also testimony

shows that there were numerous Fires at the NECC facility including the fires in I97225 By 1968

Metro-Atlantic had merged with Crown Chemical Inc (to form Crown-Metro Inc) and moved

its operations from the Site26

17 In response to Finding No 17 of the Ordersee Responses to Finding Nos 6 amp 7


19 In response to Finding No 19 of the Order minutes from meetings of the North Providence Town

Council and a 1956 newspaper article in the Providence Journal relate to an investigation

prompted by the North Providence Town Council regarding the possible pollution of waters and

burning of rubbish in the vicinity of the Site27 During the North Providence Town Councils

initial meeting on this topic on June 22 1964 the General Manager of Metro-Atlantic stated that

Metro-Atlantic did not dump chemicals into the river28 A committee appointed by the North

Providence Town Council during its June 22 1964 meeting met with officials of Metro-Atlantic

to investigate the possible pollution of waters and burning of rubbish in the vicinity of the Site

Upon its investigation and tour of the Site the appointed committee reported that all chemical

waste was deposited through the sewer system and did not note any observations of the burning

of rubbish on the Site29

20 See eg Russell-Stanley Holdings Inc v Vincent Btionanno CA No 01-8218-WK (SDNY) Dep of G Zeoli (Nov 82002) pp 29-30 2 1 See eg NECC Case Dep of V Buonanno (Oct 22 2008) p 96 Consolidated Cases Dep of V Buonanno (May 15-162013) p 45 Statement ofT Cleary (Apr 102008) H 17 Consolidated Cases Dep of J Buonanno (May 132013) p 82 Consolidated Cases Dep ofGZeoli (Sep132013) pp 27-31 (stating that it was MetroshyAtlantics customers that sold the empty drums back to NECC for reconditioning not Metro-Atlantic) 22 See eg Home Insurance Case Dep of V Buonanno (Mar 252003) p 27 Consolidated Cases Dep of V Buonanno (May 15-16 2013) pp 45 359 2j Consolidated Cases Dep of G Zeoli (Sept 13 2013) pp 27-30 24 See eg In Re Matter of Centredale ManorSuperfundSite North Providence Rhode Island Dep of K Neri (Jun 30 1999) p 14 25 See eg Home Insurance Case Dep of J Lane (Aug 112005) Ex A Collection of Fire Records from Centredale and N Providence Fire Departments ~6 See eg NECC Case Dep of J Buonanno (Jan 14 2009) Ex 43 at 36 In Re Matter of Centredale Manor Superfund Site North Providence Rhode Island Decl of L Bello (May 22 2001) p 2 27 See eg North Providence Town Council Meeting Minutes (Jun 22 1964) The Providence Journal State Engr Disclaims Public Health Menace (Nov 22 1956) 28 See eg North Providence Town Council Meeting Minutes (Jun 22 1964) The river is not named in the meeting minutes but assumed to be the Woonasquatucket River 29 See eg North Providence Town Council Meeting Minutes (July 6 1964)

W026932S 11) 7

20 In response to Finding No 20 of the Order the fact record developed as part of the

discovery in the Consolidated Cases and as part of EPAs Administrative Proceeding do

not support Finding No 20 that [ojther waste disposal activities including the dumping

of black sludge were conducted by EmhartBlack amp Decker at the southern dump

Starting in 1963 Metro-Atlantics operational practice was to put solid wastes into

dumpsters and haul it offsite30 The only solid waste product known to have been

generated through the HCP process was Nuchar (activated carbon) There is no testimony

or other evidence that Nuchar was disposed of at the southern dump or elsewhere at the

Site Moreover any aqueous waste from the main operations and from the HCP building

was disposed in the sewer31 At the time the local plumbing code required sewer

connections where they were available32 The existence ofa sewer connection was

confirmed when pipes from the former location of the HCP plant extending east toward

the location of an existing sewer main were unearthed during a removal action that was

conducted at the Site in 20093

21 In response to Finding No 21 of the Order historical aerial photographs indicate that the

alleged waste disposal activities dumping and associated earthmoving occurred at the

dump in connection with NECCs drum reconditioning operations at the Site Historical

records and testimony along with environmental sampling data collected from

environmental media at the Site clearly demonstrate that NECCs drum reconditioning

operation was by its nature and character the locus of significant chemical and solid

waste disposal activities that led directly to the release of numerous hazardous substances

to the environment through NECCs period of active operations and afterward 4

The section of the Site occupied by NECCs operations included portions of a forested wetland or swamp used as an onsite waste disposal or dump area near the south end of the peninsula35 Accounts describe NECCs practice of disposing materials into the dump including [t]he material dumped on to the ground was left there and never buried[]36 and [t]he dump area was also used for the disposal of barrels which could not be reconditioned F urther NECC had a practice of dumping materials from drums prior to the incineration process whereby this material was shoveled into a pile adjacent to the

0 See eg Home Insurance Case Dep of J Nadeau (Dec 17 2002) p 66 In Re Matter of Centredule Manor SuperfundSite North Providence Rhode Island Dep of J Turcone (Nov 30 1999) pp 13-15 Home Insurance Case Dep of J Turcone (Dec 162002) pp 44-45 NECC Case Dep of J Nadeau (Nov 242008) pp 82-83 NECC Case Dep of J Buonanno (Jan 142009) p 54 Consolidated Cases Dep of J Buonanno (May 13 2013) pp 118-120

See eg Home Insurance Case Exhibit 106 (Town ofNorth Providence Town Council Meeting Minutes July 6 1964) Home Insurance Case Test of J Buonanno (Sept 142006) v 2 p 85 Home Insurance Case Dep of D Paterson (Dec 202002) p 9 Home Insurance Case Dep of J Priest (Jan 17 2003) pp 25-26 Home Insurance Case Dep of J Buonanno (Jan 17 2003) pp 15-17 116 Consolidated Cases Dep of J Buonanno (May 13 2013) pp 70-73 124-126 Consolidated Cases Dep of C Maine (May 222013) p 28 Expert Report of Lawrence R Smith (Sept 192013) pp 1 5 8 52 See City of ProvidenceT956 Building Ordinance Article 17 Plumbing Drainage and Gas Piping Section 17103 33 See eg NECC Case Dep of D Scotti (2010) Ex 29 and 32 Expert Report of Lawrence R Smith (Sept 19 2013) p 6 34 See eg Expert Report of William W Locke PE (Oct 282013) p 1-6 Expert Report of John R Kastrinos PG PI IG LSP (Jan 152009) p 4 gt5 See eg Expert Report of William W Locke PF (Oct 28 2013) p 3-1 36See eg Aff of E Izzo (Oct28 2000) H 2 37 See eg Id

[W026932811 8

4 1

barrel furnace8 The pile was a sludge of various colors including yellow green and

red39 When so much sludge had accumulated it was shoveled into barrels and taken to the

plant landfill and dumped onto the ground90

NECCs drum reconditioning operations reportedly continued until at least the summer of

1971 or possibly into 1972 Aerial photographs of the Site from the 1970-1972 time

frame indicate that NECCs drum reconditioning activities remained very active after

Metro-Atlantics 1968 departure from the Site with 16 drum storage areas onsite

containing an estimated 10000 to 15000 drums in April 19724 A portion of these 16

drum storage areas identified in an April 30 1972 aerial photograph were located on the

southern end of the waste disposal area on the Site93

Further based on an analysis of an aerial photograph taken on April 26 1970 a conveyance ditch

running from the back of the building in which NECCs drum washing operations occurred

appears to be carrying liquids towards an impoundment with a man-made constructed bcrm44

The April 26 1970 aerial photograph also shows numerous trucks and other vehicles indicative of

continued business activity on the Site in this period45

22 In response to Finding No 22 of the Order the fact record developed as part of the discovery in the Consolidated Cases and as part of EPAs Administrative Proceeding do not support Finding No 22 that [t]he testimony of numerous former area residents volunteer fire fighters and former employees of EmhartBlack amp Decker and New England Container Company Inc (NECC) indicate that EmhartBlack amp Decker disposed of wastes on the ground at the Site and directly and indirectly to surface waters adjacent to the Site [and] that it buried drums at the Site No solid or aqueous wastes were disposed of on the ground at the Site or directly and indirectly to surface watersSee Response to Finding No 20 Additionally there was no evidence of observation in Area B of structures such as dry wells or leaching fields intended to dispose of liquid waste into the ground46 Finally the HCP building did not consume or generate drums so none would have been buried at the Site however testimony shows that NECC often buried drums on the Site See Response to Finding No 15

The fact record does support Finding No 22 that numerous fires occurred at the Site mdashincluding at the on-site dump The fires were a direct result of NECCs drum incineration operations and dumping activities The Centrcdale and North Providence Fire Departments responded to several reports of fires burning in the dump at the southern portion of the Site and received reports

n See eg Id at H 3 See eg Id at f 3 10 See eg Id at H 3

See eg Expert Report of William W locke PF (Oct 28 2013) p 3-1 NECC Supplemental Response to CKRC1A sect104(e) Information Request Centredale Manor Superfund Site (Feb 8 2002) p 5 NECC Case Dep of f Lussier (Apr 302009) p 48 42 See eg Expert Report of William W Locke PE (Oct 282013) p 3-10 Expert Report of Robert D Mutch Jr PHG PE (Jan 132009) p 2-11 48ee eg Expert Report of William W Locke PE (Oct 282013) p 3-17 Expert Report of Robert D Mutch Jr PHG PE (Jan 132009) p 2-10 41 See eg Expert Report of William W Locke PE (Oct 282013) p 3-13 NECC Case Dep of R Mutch (Mar 2 2010) pp 166-181 45 See eg Expert Report of William W Locke PE (Oct 282013) p 3-17 46 See eg NECC Case Dep of J Kastrinos (Apr 9 2010) p 269

W02(gt9i2X 11 9

of smoking or burning 55-gallon drums47 NECC incinerated drums in its cleaning operations and then dumped among other things ash and residue from NECCs drum incineration process dust residue generated from the sandblasting operation mixtures of paint methyl ethyl ketone toluene and mineral spirits generated from operations unsalvageable drums drum liners and contents of drums with significant amounts of residue48 There is no documentary evidence Or testimony that Metro-Atlantic used the southern dumpSee Response to Finding No 20

On August 29 1972 there was also a large general alarm fire at the NECC facility which required all available equipment from North Providence to respond49 Drums were on fire and explosions sent drums hurtling up to 150 feet into the air50 Prior to the time of the fire in 1972 Metro-Atlantic had merged with Crown Chemical Inc (to form Crown-Metro Inc) and moved its operations from the Site51 Following Metro-Atlantics departure from the Site around 1968 NECC took over control of the areas formerly occupied by Metro-Atlantic for drum storage and

stockpiling52

23 In response to Finding No 23 of the Order the fact record developed as part of the discovery in the Consolidated Cases and as part of EPAs Administrative Proceeding do not support Finding No 23 that (r]ecords of the Centredale Fire Department also indicate that explosions dump fires building fires and spills occurred at the EmhartBIack amp Decker facility and in the southern dump area during the period of EmhartBIack amp Deckers operations Fires did not occur at Metro-Atlantics facilities See also Response to Finding No 22 Fires that may have occurred in the southern dump area were a direct result of NECCs drum incineration operations and dumping activities

24 In response to Finding No 24 of the Order NECCs 104(e) Supplemental Responses identified more than 50 companies that were customers during its period of operations at the Site from 1952 to 1971 or 197253 The drums received by NECCs drum reconditioning facility at the Site contained chemicals including but not limited to turbine oil residues and oiljet fuel dye powder residues dust from various dyes solvents and chemical liquid packed in galvanized closed-head drums toluene naptha methyl ethyl ketone ammonia residues solvents liquid soap residues alcohol residues and chemical residues54 A former NECC employee has stated that NECC did not receive many drums from Metro-Atlantic because Metro-Atlantic was not a very big company and

47 See eg Home Insurance Case Dep of J Lane (Aug 112005) Ex A Collection of Fire Records from Centredale and N Providence Fire Departments 48 See eg Statement of R Nadeau (Aug 142002) Home Insurance Case Dep of R Nadeau (Dec 172002) p 19 Consolidated Cases Dep of R Nadeau (Jun 12 2013) pp 104-105 49 See eg Home Insurance Case Dep of J Lane (Aug 112005) pp 13-17 Home Insurance Case Dep of J Lane (Aug 112005) Ex 3 Providence Evening Bulletin Explosion and Fire Light Up Centredale (Aug 29 1972) Home Insurance Case Dep of J Lane (Aug 112005) Ex A Collection of Fire Records from Centredale and N Providence Fire Departments 50 See eg Home Insurance Case Dep of J Lane (Aug 112005) pp 46 51 See eg NECC Case Dep of J Buonanno (Jan 14 2009) p 58 In Re Matter of Centredale ManorSuperfund Site North Providence Rhode Island Deck of L Bello (May 222001) p 2 52 See eg Expert Report of William W Locke PE (Oct 282013) p 3-17 Expert Report of Robert Mutch Jr PHG PE (Jan 132009) p 2-10 53 See eg NECC Supplemental Response to CERCLA sect104(e) Information Request Centredale Manor Superfund Site (Feb 82002) pp 5 7 13 NECC Supplemental Response to CERCLA sect104(e) Information Request Centredale Manor Superfund Site (Aug 222002) Attach A 54 See eg Expert Report of William W Locke PE (Oct 282013) p 3-10 Expert Report of J Richard Aspland PhD (Jan 142009) pp 7-68 Expert Report of J Richard Aspland PhD (Jan 272009) pp 7-70 Expert Report of J Richard Aspland PhD (May 212009) pp 2^24

j W0269328 11 i 10

did not deal with many drums55 Further it was Metro-Atlantics customers that sold the empty

drums back to NECC tor reconditioning not Metro-Atlantic56 Aerial photographs of the Site from

the 1970-1972 time frame indicate that NECCs drum reconditioning operations remained very

active after Metro-Atlantics 1968 departure from the Site with an estimated 10000 to 15000

drums remaining onsite in April 197257

Dioxins and furans were present as impurities in various chemical residuessent in drums to NECC

by customers other than Metro-Atlantic58 Additionally the onsite incineration of drums by NECC

and Other burning of chemical residues that occurred in connection with NECC s onsite waste

disposal activities generated dioxins and furans at the Site59 NECCs generation of dioxins and

furans at the Site through onsite incineration and other burning throughout NECCs period of

operation from approximately 1952 to 1971 or 197260

Spatial and temporal patterns of 2378-TCDD contamination in sediment downstream from the

former NECC and Metro-Atlantic operating areason the Site as shown by EPAs own analysis

indicate that releases of 2378-TCDD began no later than the early 1950s and continued over a

period of decades which is inconsistent with and cannot be explained by Metro-Atlantics

operation periods on the Site61

25 In response to Finding No 25 of the Order the fact record developed as part of the discovery in the Consolidated Cases and as part of EPAs Administrative Proceedingdo not support Finding No 25 that Metro-Atlantic sent drums containing chemical residues and hazardous substances to NECC for reconditioning See Response to Finding No 15

26 The fact record developed as part of the discovery in the Consolidated Cases and as part of EPAs Administrative Proceeding do not support Finding No 26 First with regards to reconditioning of Metro-Atlantics drums there is testimony from a former NECC employee that NECC did not receive many drums from Metro-Atlantics operations because Metro-Atlantic was not a big company and did not deal with many drums62 Further it was MetroshyAtlantics customers that sold the empty drums back to NECC for reconditioning not MetroshyAtlantic6 Moreover Metro-Atlantic used fiber drums not steel drums that would require reconditioning64 See also Response to Finding No 24 Second there is no evidence that Metro-Atlantics manufacturing operations including its HCP manufacturing process used andor generated any of the listed hazardous substances except for certain VOCs See also response to Finding No 5 Even if Metro-Atlantics operations used andor generated any of these hazardous substances there is no evidence of releases to the environment from the

35 See Consolidated Cases Dep of J Cifclli (May 212013) p 41 56 See eg Consolidated Cases Dep of G Zcoli (Sept 132013) pp 27-30 57 See eg Expert Report of William W Locke PE (Oct 282013) p 3-10 Expert Report of Robert D Mutch Jr PHG PE (Jan 132009) p 2-11 See eg Expert Report of Gregory C Fu PhD (May 212009) pp 5-45 59 See eg hi 60 See eg Expert Report of William W Locke PE (Oct 282013) p 1-7 Expert Report of Gregory C Fu PhD (May 212009) pp 5-6

See eg Expert Report of William W Locke PE (Oct 28 2013) p 1-6 Expert Report of John R Kastrinos PG PHG LSP(Jan 15 2009) p 41 Expert Report of Court D Sandau PhD (Oct 102013) p 101 62 See Consolidated Cases Dep of J Cifelli (May 212013) p 41

See eg Consolidated Cases Dep of G Zeoli (Sep132013) pp 27-30 64 See eg Statement of T Cleary (Apr 8 2008) f 17 Emhari Indus Inc v New England Container Co Inc et a CA No 06-218-S (ND III) Dep of V Buonanno (Oct 222008) p 96 Consolidated Cases Dep of V Buonanno(May 15-16 2013) p45

W026lB28 111 II

Metro-Atlantic manufacturing operations See also response to Finding No 6

27 In response to Finding No 27 of the Order the fact record developed as part of the discovery in the Consolidated Cases and as part pf EPAs Administrative Proceeding do not support Finding No 27 that [njumerous complaints and fires were reported to local and state authorities during the time chemical manufacturing operations were conducied on the Source Area As discussed above a major fire in 1972 destroyed most of the structures and remaining buildings were then demolished The referenced fires were a direct result ofNECCs drum incineration operations and dumping activitiesSee Response to Finding No 22

28 In response to Finding No 28 of the Order the fact record developed as part of the discovery in the Consolidated Cases and as part of EPAs Administrative Proceeding do not support Finding No 28 that hazardous substances from EmhartBlack amp Deckers operations (including associated drum reconditioning) were released directly to the ground discharged directly or indirectly into the River emitted into the air or were otherwise released There is no evidence that Metro-Atlantics manufacturing operations including its HCP manufacturing process used andor generated hazardous substances See Responses to Finding Nos 5 amp 26 Even if MetroshyAtlantics operations used andor generated any of these hazardous substances there is no evidence of releases to the environment from the Metro-Atlantic manufacturing operations See also Response to Finding No 6

Further expert analysis does not support the premises that contaminantsare migrating to the River and its floodplain in groundwater65 EPAs data is insufficient to evaluate facilitated transport by co-solvency or colloidal transport66 The fact record and expert analysis do support the premise that [transport of contaminated Source Area soil by surface runoff and during flooding from NECCs waste- and drum-handling and disposal practices resulted in contaminant migration into surface water and sediment in the adjacent Woonasquatucket River and its floodplain downstream from the Source Area of the Site67 The fact record and expert analysis does not support however a finding that the contamination was caused by MetroshyAtlantics operationsSee Responses to Finding Nos 5 amp 6

31 In response to Finding No 31 of the Order the available facts and data do not support a finding

that Metro-Atlantic caused a release of2378-TCDD to the environment from its HCP

manufacturing operation at the Site68 Within the available historical records and testimony of

former workers and others with knowledge of Metro-Atlantics HCP operation there is no

historical information that shows any spill discharge or other release of 2378-TCDD to the

environment ever occurred from the Metro-Atlantic HCP facility69 Any spills of sodium 245shy

trichlorophenol (Na-245-TCP) 245-trichlorophcnol (245-TCP) or HCP to the environment

from the Metro-Atlantic facility wouid have been unlikely given the manner in which chemical

materials were handled and the equipment used70

65 See eg Expert Report of John R Kastrinos PG PHG LSP (Jan 15 2009) p 47 66 See egbdquo Expert Report of William W Locke PF (Oct 28 2013) p 1-10 Expert Report of John R Kastrinos PG PHG LSP (Jan 152009) p 37 AMEC Summary of Findings Regarding Cosolvency at MW-05S (Aug 15 2007) (AR 285154) pp 178 67 See eg Expert Report of John R Kastrinos PG PHG LSP (Jan 152009) p 47 M See eg Expert Report of William W Locke PF (Oct 282013) pp 1-5 3-6 Expert Opinion of Francesco Stellacci PhD (Jan 122009) pp 4 5 69 See eg Expert Report of William W Locke PE (Oct 28 2013) p 1-5 70 See eg Statement of T Cleary (Apr 82008) H 9

W0269328 II) 12

Further there is no sound technical basis for speculating that spills or leakage of the crude Na-

245-TCP solution delivered to the HCP facility occurred nor that waste streams or finished

product generated in the HOP manufacturing and formulation processes were ever discharged to

soil andor surface or groundwater at the Site the HCP manufacturing process generated

drummed waste or other drummed materials that were never sent to NECCs drum reconditioning

and the onsite waste disposal operation71 Moreover Metro-Atlantics HCP building was

connected to the existing sewer system72 and no evidence has been observed in the vicinity of

Metro-Atlantics HCP facility of structures such as dry wells or leaching fields intended to

dispose of liquid waste into the ground73

The dioxin and furan congener and homologue profiles present in soil and sediment at the Site are

inconsistent with the polychlorinated dibenzo-p-dioxin (PCDD) and polychlorinated dibenzofuran

(PCDF) congener and homologue profiles that would have been present in the crude Na-245shy

TCP solution obtained by Metro-Atlantic exclusively from the Diamond Alkali Company as a

raw material for use in the HCP manufacturing process74 Therefore Diamond Alkali TCP could

not be responsible for the dioxin congener profile found at the Site and could not have been the

origin of the 2378-TCDD found on the Site75 In addition spatial and temporal patterns of

2378-TCDD contamination in sediment downstream from the former NECC and Metro-

Atlantic operating areas on the Site as shown by EPAs own analysis indicate that releases of

2378-TCDD began no later than the early 1950s and continued over a period of decades which

is inconsistent with and cannot be explained by a release or releases from the HCP manufacturing

plant during its brief period of operation for less than one year in 1964 andor 196576

2378-TCDD along with other dioxins and furans and numerous other hazardous substances were released at the Site by and from NECC over a span of many years coinciding with NECCs drum reconditioning and onsite waste disposal operations on the Site from approximately 1952 to 1971 or 197277 Historical records and testimony along with environmental sampling data collected from the environmental media of the Site clearly demonstrate that NECCsdrum reconditioning operation was by its nature and character the locus of significant chemical and solid waste disposal activities that led directly to the release of numerous hazardous substances to the environment throughout its period of active operations and afterwards78 A diverse mix of compounds not related to the HCP manufacturing process has been detected in soils in the former location of Metro-Atlantics HCP manufacturing facility79 These conditions are evidence of chemical releases from other sources likely in connection with NECCs uses of this area over

71 See eg Expert Report of William W Locke PF (Oct 282013) p 1-5 72 See eg Expert Report of Lawrence R Smith (Sept 192013) pp 1 58 Home Insurance Case Dep of J Buonanno (Jan 172003) pp 124-125 NECC Case Dep of J Buonanno (Jan 14 2009) pp 38-39 Consolidated Cases Dep of J Buonanno (May 13 2013) pp 99-100 North Providence Town Council Meeting Minutes (July 6 1964) 73 See eg NECC Case Dep of J Kastrinos (Apr 9 2010) p 269 74 See eg Expert Report of William W Locke PO (Oct 282013) p 1-6 Expert Report of James R Kittrell PhD (Jan 72011) p 2 Expert Report of James R Kittrell PhD (Nov 72011) p 2 Home Insurance Case Dep of T Cleary (Feb 10 2003) p 48 75 See eg Expert Report of James R Kittrell PhD (Nov 7 2011) p 2 76 See eg Expert Report of William W Locke PE (Oct 28 20)3) p 1-6 Expert Report ofJohn R Kastrinos PG PHG LSP (Jan 15 2009) p 41 Expert Report of Court D Sandau PhD (Oct 102013) p 101 71 See eg Expert Report of William W Locke PE (Oct 282013) p 1-6 78 See eg Id Expert Report of John R Kastrinos PG PHG LSP (Jan 152009) p 4 79 See eg Expert Report of William W- Locke PE (Oct 282013) p 1-7

IW0269328 111 13

many years for parking or storage of vehicles and storage and staging of tanks drums and other

equipment80

Dioxins and furans were present as impurities in various chemical residues sent in drums to

NECC by customers other than Metro-Atlantic81 Combustion is a major source of dioxins and

furans in the environment including the incineration of a variety of wastes the burning of various

fuels smelting or metal recoveiy and poorly controlled combustion such as backyard burning or

wildfires82

The onsite incineration of drums by NECC and other burning of chemical residues that occurred

in connection with NECCs onsite waste disposal activities generated dioxins and furans at the

Site throughout NECCs period of operation from approximately 1952 to 197281

For further discussion regarding NECCs activities in the dump area on the Site see the response to Finding of Fact 21

32 In response to Finding No 32 of the Order the highest reliable concentration of PCE in Area B is

250 mgKg wh ich is an order of magnitude less than the concentration of PCE detected in Area C

(1700 mgKg)84 Further PCE is among the chemicals delivered to or generated in NECCs

drum incineration facility and in the dump area on the Site85

Metro-Atlantics manufacturing processes are not the source of PCE detected on the Site86 Nevertheless the contaminants including PCE detected in Area B are characteristic of NECCs operations based on contaminants detected in AreaC87 Therefore the contaminants including PCE likely resulted from releases from drums stored by NECC in Area B both prior to and after the period of Metro-Atlantics operation of the ancillary chemical manufacturing building

34 In response to Finding No 34 of the Order EPA mischaracterizes and misinterprets technical information and data within the conceptual site model framework to conform to its prior hypotheses speculation and beliefs regarding contaminant sources release mechanisms and transport pathways including but not limited to data and information from radiometric age dating studies ofsediments in the River and from studies conducted to evaluate the potential for mobilization of dioxins and furans in groundwater in Area B of the Site 89 Dioxins and furans

have very low solubility in water and when released to the environment bind strongly to organic matter in the soil90 Any dioxins and furans released to the soil below the surface would not migrate and would remain in the place to which it was released91 EPAs hypothesis of subsurface

80 See eg Id

81 See egbdquo ld Expert Report of Gregory C Fu PhD (May 212009) pp 5-45 82 See eg Expert Report of William W Locke PE (Oct 282013) p 4-2 Expert Report of John R Kastrinos PG PHG LSP (Jan 152009) p 24 53See eg Expert Report of William W Locke PE (Oct 282013) p 1-7 Expert Report of John R Kastrinos PG PHG LSP (Jan 152009) p 4 84 See eg Battelle Database (May 2013) CMS-451-F CMS-417-B 85 See eg Expert Report of John R Kastrinos PG PHG LSP (Jan 15 2009) p 25 NECC Case Dep of M Robinettc (Oct 21 2010) Ex 21 86 See eg Expert Report of John R Kastrinos PG PHG LSP (Jan 15 2009) p 41 87 See eg Id 88 See eg Id w See e g Expert Report of William W Locke PE (Oct 282013) p 1-3 90 See eg Id 91 See eg Id at p 1-10

i W0269328 11 14

transport of dioxins and furans to the River in groundwater as the result of cosolvency effects or

colloidal transport is not supported by data collected from theSite92 Furthermore the conditions

necessary for cosolvency effects to occur which are well described in peer-reviewed published

scientific studies do not exist in groundwater at the Site92 Any contributions of dioxins and

furans to the River from erosion of surface soils in Area B would be negligible94

Erosion of surface soils and their subsequent transport to the River is much more likely to have

been a significant transport mechanism in Area C than Area B93 The overall concentrations of

dioxins and furans reported in soils within both Area B and Area C are not high enough for

erosion and transport of these soils to have been the dominant release and transport mechanism

for the dioxins and furans reported in downstream sediments and floodplain soils96 The primary

source of dioxins and furans to the waterway was more likely than not direct releases of

chemical wastes from NECCs drum reconditioning operations in Area C occurring overan

extended period of time97

C Characteristics of the Contamination (OT46-60)

46 In response to Finding NO 46 of the Order while dioxin as well as the other compounds listed in paragraphs 46 through 60 can be toxic at certain concentrations toxicity is dependent not just on the presence of the compound in the environment but on the degree of exposure and resultant absorbed dose experienced by the organism or human The factors that most affect the dose of a toxicant that an organism (including humans) receives are the magnitude frequency and duration of exposures the organisms body weight the bioavailability of the toxicant in the environmental media and several individual organism-specific characteristics related to chemical sensitivity These are exactly the factors that when estimated from Or measured in site-specific circumstances inform a site-specific risk analysis9 The statements in paragraphs 46 through 60 refer to multiple endpoints and effects that have been observed in studies of highly-exposed animals or humans but provide no context as to how these results should be evaluated in terms of exposures to these compounds in environmental media at the Site The environmental risk paradigm prescribed in countless EPA guidance documents99 and integral to the National Contingency Plan (NCP) regulations100 provides the framework for characterizing risks associated with exposures to these compounds but is entirely absent from EPAs broad and general statements delivered in its Findings of Fact

92 See eg Id at p 1-10 Expert Report of John R Kastrinos PG PHG LSP (Jan 15 2009) p 37 AMEC Summary of Findings Regarding Cosolvency at MW-05S (Aug 15 2007) (AR 285154) pp 1 7 8 9 j See eg Expert Report of William W Locke PE (Oct 282013) p 1-10 AMEC Summary of Findings Regarding Cosolvency at MW-05S (Aug 15 2007) (AR 285154) pp 1 7 8 94 See eg Expert Report of William W Locke PE (Oct 28 2013) p 1-10 Expert Report of John R Kastrinos PG PHG LSP (Jan 15 2009) pp 35 42 47 93 See eg Expert Report of William W Locke PF (Oct 28 2013) p 1-10 Expert Report of John R Kastrinos PG PHG LSP (Jan 15 2009) pp 1745 47 96 See eg Expert Report of William W Locke PE (Oct 282013) p I-I I Expert Report of John R Kastrinos PG PHG LSP (Jan 15 2009) pp 45 97 See eg Expert Report of William W Locke PE (Oct 282013) p I -11 Expert Report of John R Kastrinos PG PHG LSP (Jan 15 2009) pp 4547 98 EPA Risk Assessment Guidance for Superfund Volume I - Human Health Evaluation Manual (Part A) Interim Final EPA5401-89002 (Dec 1989) pp I-6 to 1-8 55 Fed Reg 8710vee also Expert Report of Russell E Keenan PhD (Oct 82013) pp 2-1 and 2-2 (listing relevant EPA guidance documents)

40 CFR sect 300430(d)(4)

W0269328 II 15

47 In response to Finding No 47 of the Ordersee Response to Finding No 46

48 In response to F inding No 48 of the Order as prescribed in EPA ecological risk assessment guidance1 central to determining ecological risks associated with the presence of chemicals at waste sites is the measurement and assessment of site-specific ecological community- or population-level effects Many of EPAs statements in paragraphs 46 through 60 regarding the potential toxicity and bioaccumulation of chemicals in organisms are gleaned from or refer to the results of laboratory or controlled-exposure studies While the information from these types of toxicity and environmental fate studies inform the development of ecological toxicity criteria and can contribute to the modeling of ecological exposures this information is meaningless to the quantification of site-specific ecological risks until it is combined with considerations and measurements of site-specific ecological exposures and potential population-level effects Responses to paragraphs 62 65 67 and 68 provide further detail on how EPAs failure to evaluate site-specific ecological exposures and risks has rendered EPAs conclusions regarding ecological health at the Site to be meaningless

49 In response to Finding No 49 of the Order see Responses to Finding Nos 46 and 48












D Routes of Exposure and Exposure Pathways (1161-62

101 EPA Ecological Risk Assessment Guidance for Superfund Process for Designing and Conducting Ecological Risk Assessments Interim Final EPA 540R-97006 (Jun 1997) EPA Issuance of Final Guidance Ecological Risk Assessment and Risk Management Principles for Superfund Site OSWER Directive 92857-28P (Oct 1999)

W0269328 111 16

61 In response to Finding No 61 of the Order as discussed in previous comments10 EPA failed to

follow NCP regulations103 appropriate EPA guidance101 and objective science when conducting

the baseline human health risk assessments for the Site Moreover EPAs baseline human health

risk assessments are founded on insufficient and inadequate Site-specific environmental data

incorrect and invalid exposure assumptions and models that have resulted in overestimates of

potential risks to human health EPAs failure to measure and apply relevant Site-condition data

in their risk assessments and to incorporate Site-specificity in their exposure models has

ultimately resulted in a distorted Remedial Investigation (RI) and unnecessarily broad and

excessively costly remediation plans105 These failures resulted in EPA computing potential

health risks that are not siterspecific are unrealistic or implausible and largely exaggerate current

and potential future human exposures and risks Consequently the need for a costly and

environmentally-damaging remedial action is overstated for all five action areas and is not

legally-supportable106

61ai EPA failed to comply with NCP requirements or to follow EPA guidance in developing estimates of hypothetical residential exposures to soils above the water table107 EPAs flawed analysis portrays multiple implausible soil exposure parameters for the Source Area Allendale Pond floodplain and Lyman Mill Pond floodplain soils108 Due to these flaws EPA inappropriately targeted the Allendale Mill Pond Floodplain Soil action area and the Lyman Mill Pond Stream Sediment and Floodplain Soil (including the Oxbow Area) action areas as needing a costly and environmentally damaging remedy Furthermore these flaws resulted in the development of cleanup goals that are unnecessarily stringent for the Source Area Soil action area10

61aii See Response to Finding NO 61ai

61bi EPAs estimates of direct contact exposures of residents to Allendale Pond sediments are implausible because (1) they are computed without application of NCP regulations and EPA exposure assessment guidance and (2) they portray an exposure scenario mdash frequent routine summer wading by all age groups in Allendale Pond

102 See eg Emharts Public Comments on the Proposed Plan Amendment and Technical Memorandum - Impact of Dioxin Reassessment (Sept 17 2012) (AR 521743) 3 40 CFR sect 300430(d)(4) IW 55 Fed Reg 8710 see also Expert Report of Russell E Keenan PhD (Oct 8 2013) pp 2-1 2-2 (listing relevant EPA guidance documents) 105 See eg Id at pp 1-3 1-4 100 See eg Emharts Public Comments on the Proposed Plan Amendment and Technical Memorandum - Impact of Dioxin Reassessment (Sept 172012) (AR 521743) Emharts Public Comments on the Interim-Final Baseline Risk Assessments and Remedial Investigation (RI) and the Interim-Final Preliminary Remediation Goals Report (PRO) (Oct 19 2006) (AR 273412) Emharts Public Comments on the Addendum to the Interim-Final Baseline Human Health and Risk Assessment (BHHRA) and Interim-Final Baseline Ecological Risk Assessment (BERA) Oxbow Area) (Jan 25 2007) (AR 273411) Emharts Public Comments on the Interim-Final Supplemental Baseline Human Health and Ecological Risk Assessments Oxbow Area Floodplain Soil and Sediment (Oct 212011) (AR 506581) Integral Consulting Inc Field Sampling and Data Report 2010 Supplemental Investigation of the Lyman Mill Reach Sediment and Flood Plain Soils (July 2011) (AR 492977) Iu7 Expert Report of Russell E Keenan PhD (Oct 82013)

See Centrcdale Manor Restoration Project North Providence Rhode Island Oxbow Area Risk Assessment (May 4 2007) (AR 273410) pp 2-3

See Emharts Public Comments on the Proposed Plan Amendment and Technical Memorandum - Impact of Dioxin Reassessment (Sept 17 2012) (AR 521743) pp 11-16

JW0269328 111 17

mdash that is not supported by observations of such behavior nor by the fact that the

physical and aesthetic natures of these ponds are not conducive to these behaviors0

Criticisms of EPAs gross overestimation of fish consumption exposures among visiting recreational anglers as discussed in the responses to 61bii also apply to EPAs assessment of exposures to current and future residents living along the River

61bii EPA failed to follow theNCP requirement and EPA guidance to collect and quantify

site-specific information on residential and recreational fish consumption It instead

applied implausible exposure assumptions that are contrary to objective science and

result in significant over estimation (ie by several orders of magnitude) of

exposures and risks Missing from EPAs fish consumption exposure analyses are

considerations of Site-specific angler effort fish species and fish tissue consumption

preferences appropriate fish consumption rates and loss of contaminants during

preparation and cooking Additionally EPA wrongly applied limited outdated and

inapplicable fish tissue data to the estimation offish tissue exposure point

concentrations1 These assumptions are wholly inconsistent with site-specific

exposure assessment requirements and are particularly outlandish when compared to

the results of an informal qualitative Woonasquatucket River use assessment

showing that there are very few anglers on Allendale Pond and that those who do

fish practice non-consuming catch and release fishing techniques112

61biii EPAs assumptions and modeling of potential current and future exposures of shorefront property residents and passive recreational visitors to Allendale Pond floodplain soils are inconsistent with and in some cases contrary to NCP and EPA guidance Among EPAs incorrect assumptions are the mischaracterization of soil exposure concentrations the use of unrealistic incidental soil ingestion rates the use of implausible exposure frequencies and exposed dermal contact areas and the lack of Site-specific dioxin soil bioavailability considerations114 These flaws in EPAs analyses have resulted in the substantial overestimation of exposures to this population

61biv See Response to Finding No 61biii

61ci See Responses to Finding Nos 61bi and 61bii

11(1 Emharts Public Comments on the Interim-Final Baseline Risk Assessments and Remedial Investigation (Rl) and the Interim-Final Preliminary Remediation Goals Report (PRG) (Oct 192006) (AR 273412) Tab B pp 8-14 Emharts Public Comments on the Proposed Plan Amendment and Technical Memorandum - Impact of Dioxin Reassessment (Sept I72012)(AR 521743) pp 11-16

Emharts Public Comments on the Interim-Final Baseline Risk Assessments andRemedial Investigation (Rl) and the Interim-Final Preliminary Remediation Goals Report (PRG) (Oct 192006) (AR 273412) Tab B pp 2-8 Expert Report of Russell E Keenan PhD (Oct 82013) pp 4-2 -4-44-7 -4-13 112 MACTEC Interim-Final Baseline Ecological Risk Assessment Centredale Manor Restoration Project Superfund Site Prepared for US Army Corps of Engineers (Sept 30 2004) pp 3 4 (AR 206666-206669 206720) 113 Emharts Public Comments on the Interim-Final Baseline Risk Assessments and Remedial Investigation (Rl) and the Interim-Final Preliminary Remediation Goals Report (PRG) (Oct 192006) (AR 273412) Tab B pp 8-14 Emharts Public Comments on the Proposed Plan Amendment and Technical Memorandum - Impact of Dioxin Reassessment (Sept 172012) (AR 521743) pp 7-8 11-16 14 USEPA 2012a EPA noncanccr toxicity value for dioxin and CERCLARCRA Cleanups httpwwwepagovsuperfundhealthcontaminantsdidxindioxihsoilhtml (AR 509362)

i W0269328 11 18

61cii See Response to Finding No 61bii

61ciii See Response to Finding No 61bii

61civ See Response to Finding No 61biii

Furthermore EPAs estimates of exposures to visitors to the Oxbow General Area

Region is grossly flawed in that it is non-Site-specific and implausible both of which

are contrary to the NCPs requirements for a baseline risk assessment5

61di FPA has identified Federal drinking water standards as ARARs for Source Area Groundwater Clearly groundwater under and in the vicinity of the Site is not nor will it ever be a useable source of potable water Accordingly the Rhode Island Department of Environmental Management (RIDEM) classifies groundwater beneath the Site as a non-drinking water GB aquifer Moreover RIDEM classifies all groundwater downgradient of the Site as a GB aquifer Thus there is no potential point of human exposure beyond the boundary of the Site Though the groundwater is classified as a potential drinking water source by EPA in all practical considerations groundwater beneath the Source Area will not be used as a potable water source16 Nonetheless EPA applies the federal drinking water standards as ARARs which is inconsistent with the Agencys decision making at other Superfund sites117 At a minimum EPA should have included an exposure analysis that utilized the RIDEM non-potable groundwater classification of GB

62 In response to Finding No 62 of the Order while ecological exposures to hazardous chemicals may be occurring in the areas identified below the impacts of these exposures on the environmental receptor communities are the critical metrics to determining whether a significant ecologic risk is present such that it warrants remedial action as per the NCP and EPA guidance That is site-specific population-based assessments are preferred over non-site specific assessments conducted on individual specimens for determining the extent of any biological community health affects EPAs ecological risk assessments largely demonstrated that receptor communities are not at a substantial risk of harm due to the presence of contaminants at the Site

62a EPA inappropriately dismissed the fact that the site-specific benthic inacroinvertabrate community assessment conducted for the Baseline Ecological Risk Assessment (BERA) concluded that the macroinvertebratc communities in the Woonasquatuckct River downstream of the source area did not demonstrate significant impairment Moreover the community assessment of emerging insects conducted as part of the BERA similarly concluded that no significant difference in the biomass samples of emerging insects and no apparent difference in the taxonomic composition of emergent aquatic insects community was noted between Greystonc

115 Emharfs Public Comments on the Addendum to the Interim-Final Baseline Human Health and Risk Assessment (BHHRA) and Interim-Final Baseline Ecological-Risk Assessment (BERA) Oxbow Area (Jan 252007) (AR 273411) pp 1-3 Centredale Manor Restoration Project North Providence Rhode Island Oxbow Area Risk Assessment (May 42007) (AR 273410) pp 1-5 Emharts Public Comments on the Proposed Plan Amendment and Technical Memorandum - Impact of Dioxin Reassessment (Sept 17 2012) (AR 521743) pp 11-16

Fetter from James T Owen III EPA Region I to Amy R Legate EPA National Remedy Review Board (Sept 28 2011) pp 1-2 (AR 49471) shy17 Emharts Public Comments on the Proposed Remedial Action Plan Addendum to the Interim Final Feasibility Study Report and Interim Final Feasibility Study Report (Mar 2 2012) pp 77-80 (AR 506583)

W026laquoJ32K 11 11)

Mill (upstream of the Source Area) and Lyman MillPPnd (downstream of the Source Area)

62ai EPAs assessment of pelagic and dehnersal fish populations downstream of the Source Area concluded that demersal and pelagic fish communities associated with

the study area are not at substantial risk of harm due to the presence of contaminants

at the Source Area120121

62aii EPAs BERA concludes that omnivorous mammals and birds are not at substantial

risk of harm associated with the dietary exposures of chemicals of potential concern

in the aquatic habitats related to the Site12

62-aiii EPAsBERA concludes that omnivorous mammals and birds are not at substantial

risk of harm associated with the dietary exposures ofchemicals of potential concern


62bi EPA did not quantitatively evaluate exposure or potential risks associated with

Oxbow floodplain aquatic invertebrates24-125

62ci EPA concluded based on a floodplain invertebrate community study that floodplain

invertebrate communities are not at a substantial risk of harm due to the presence of

contaminant release from the Site Source Area EPAsconclusions were correctly

based on a community assessment that found Site floodplain areas have a level of

ecological integrity that is consistent with background conditions126-127

62cii EPAs claim that the potential risks to these receptors downstream of the Source Area is more significant than upstream from community or population perspective is not substantiated EPA failed to conduct necessary community studies to determine whether these receptors are experiencing population-level impacts from Site-related

18 MACTEC Interim-Final Baseline Ecological Risk Assessment Centredale Manor Restoration Project Superfund Site Prepared for US Army Corps ofEngineers (Sept 302004) Sections 335336 (AR 206666-206669 206720) 119 Emharts Public Comments on the Interim-Final Baseline Risk Assessments and Remedial Investigation (Rl) and the Interim-Final Preliminary Remediation Goals Report (PRG) (Oct 192006) (AR 273412) Tab C p 7 120 Emharts PublicComments on the Interim-Final Baseline Risk Assessments and Remedial Investigation (Rl) and the Interim-Final Preliminary Remediation Goals Report (PRG) (Oct 19 2006) (AR 273412) l ab A p 1-3 121 MACTEC lnterim-FinalBaseline Ecological Risk Assessment Centredale Manor Restoration Project Superfund Site Prepared for US Army Corps ofEngineers (Sept 30 2004) Sections 54 64 (AR 206666-206669 206720) 122 MACTEC Interim-Final Baseline Ecological Risk Assessment Centredale Manor Restoration Project Superfund Site Prepared for US Army Corps ofEngineers (Sept 30 2004) Section 94 (AR 206666-206669 206720) 123 MACTEC Interim-Final Baseline Ecological Risk Assessment Centredale Manor Restoration Project Superfund Site Prepared for US Army Corps ofEngineers (Sept 302004) Section 94 (AR 206666-206669206720) 124 Battelle US Army Corps of Engineers Addendum to the Interim-Final Baseline Ecological Risk Assessment Oxbow Area Centredale Manor Restoration Project Superfund Site (Aug 2006) Section 221 (AR 273402) 125 Battelle US Army Corps ofEngineers Interim-Final Supplemental Baseline Human Health and Ecological Risk Assessment Oxbow Areai Floodplain Soil and Sediment Centredale Manor Restoration Project Superfund Site (June 2011) Section 34 (AR 486543) 126 MACTFC Interim-Final Baseline Ecological Risk Assessment Centredale Manor Restoration Project Superfund Site Prepared for US Army Corps of Engineers (Sept 302004) Section 44 (AR 206666-206669206720) 127 Battelle US Army Corps of Engineers Interim-Final Supplemental Baseline Human Health and Ecological Risk Assessment Oxbow Area Floodplain Soil and Sediment Centredale Manor Restoration Project Superfund Site (June 2011) Section 314 (AR 486543)

i W0269328 111 20

chemicals18 Furthermore EPA rightly concedes that potential ecological risks as

determined by a hazard quotient (HQ) greater than 10 do not indicate that a

substantial population- or community-level harm has occurred129

62ciii EPAs BERA concludes that omnivorous mammals and birds are not a substantial

risk ol harm associated with the dietary exposures of chemicals of potential concern


E Populations at Risk (11163-65)

63 In response to Finding No 63 of the Order EPA lacked a reasonable scientific basis in its selection of the level of human health risk protectiveness that was used to determine whether portions of the Site pose a threat to human health and thus require remediation131 Specifically EPA used inconsistent target cancer risk goals and unsubstantiated risk characterizations that do not conform either to NCP requirements12 or EPA guidance133 See also Responses to Finding Nos 61ai ii 6lbi ii iii iv 61ci ii iii iv and 61d

64 In response to Finding No 64 of the Order as discussed in responses to 61ai EPA failed to


the baseline human health risk assessments for the Site136 See also Responses to Finding Nos

61ai ii 61bi ii iii iv 61ci ii iii iv and 61d These failures resulted in EPA computing

potential health risks that are not site-specific arc unrealistic or implausible and largely

exaggerate current and potential future human exposures and risks Consequently the need for a

costly and environmentally-damaging remedial action is overstated for all five action areas and is

not legally-supportable137

128 Centredale Manor Restoration Project North Providence Rhode Island Oxbow Area Risk Assessment (May 4 2007) (AR 273410) pp 3-5 129 Battelle US Army Corps of Engineers Interim-Final Supplemental Baseline Human Health and Ecological Risk Assessment Oxbow Area Floodplain Soil and Sediment Centredale Manor Restoration Project Superfund Site (June 2011) Section 44 (AR 486543) 110 MACTEC Interim-Final Baseline Ecological Risk Assessment Centredale Manor Restoration Project Superfund Site Prepared for US Army Corps of Engineers (Sept 302004) Section 94 (AR 206666-206669 206720)

Emharts Public Comments on the Proposed Plan Amendment and Technical Memorandum - Impact of Dioxin Reassessment (Sept 17 2012) p 8 132 5 5 Fed Reg 8709 Emharts Public Comments on the Proposed Plan Amendment and Technical Memorandum - Impact of Dioxin Reassessment (Sept 17 2012) p 11 134 40 CFR sect 300430(d)(4) 135 5 5 Fed Reg 8710 see also Expert Report of Russell E Keenan PhD (Oct 82013) pp 2-1 2-2 (listing relevant EPA guidance documents) 16 Emharts Public Comments on the Proposed Plan Amendment and Technical Memorandum - Impact of Dioxin Reassessment (Sept 17 2012) 17 See Emharts Public Comments on the Proposed Plan Amendment and Technical Memorandum - Impact of Dioxin Reassessment (Sept 172012) (AR 521743) Emharts Public Comments on the Interim-Final Baseline Risk Assessments and Remedial Investigation (Rl) and the Interim-Final Preliminary Remediation Goals Report (PRG) (Oct 192006) (AR 273412) Emharts Public Comments on the Addendum to the Interim-Final Baseline Human Health and Risk Assessment (BHHRA) and Interim-Final Baseline Ecological Risk Assessment (BERA) Oxbow Area (Jan 25 2007) (AR 273411) Emharts Public Comments on the Interim-Final Supplemental Baseline Human Health and Ecological Risk Assessments Oxbow Area Floodplain Soil and Sediment (Oct 21 2011) (AR 506581) Integral Consulting Inc Field Sampling and Data Report 2010 Supplemental Investigation of the Iyman Mill Reach Sediment and Flood Plain Soils (July 2011) (AR 492977)

[W0269328 II 21

64a See Responses to Finding Nos 63 and 64

64aii See Responses to Finding Nos 63 and 64

64bi See Responses to Finding Nos 63 and 64

64bii See Responses to Finding Nos 63 and 64

64biii See Responses to Finding Nos 63 and 64

64biv See Responses to Finding Nos 63 and 64

64ci See Responses to Finding Nos 63 and 64

64cii See Responses to Finding Nos 63 and 64

64ciii See Responses to Finding Nos 63 and 64

64di See Responses to Finding Nos 63 and 64

65 In response to Finding No 65 Of the Order see responses below

65ai EPA rightly concedes that potential ecological risks as determined by a hazard index

(HI) greater than 10 does not indicate that substantial population- or community-

level harm has occurred38 EPA failed to conduct a comprehensive avian community

survey which may demonstrate that there is not community level harm to avian

receptors39 EPA made determinations of no significant harm from community

surveys for floodplain soil invertebrates140141 demersal fish142 and pelagic fish143

EPA overestimated potential exposure of piscivorous birds to chemicals by using

inappropriate inputs for exposure duration dietary fish exposure point

concentrations and site foraging frequency44

65aii EPA rightly concedes that potential ecological risks as determined by a hazard index (HI) greater than 10 does not indicate that a substantial population- or communityshy

138 Battelle US Army Corps of Engineers Interim-Final Supplemental Baseline Human Health and Ecological Risk Assessment Oxbow Area Floodplain Soil and Sediment Centredale Manor Restoration Project Superfund Site (June 2011) Section 44 (AR 486543) L9 Id at Tab c p 15 140 MACTEC Interim-Final Baseline Ecological Risk Assessment Centredale Manor Restoration Project Superfund Site Prepared for US Army Corps of Engineers (Sept 30 2004) Section 44 (AR 206666-206669 206720) 141 Battelle US Army Corps of Engineers Interim-Final Supplemental Baseline Human Health and Ecological Risk Assessment Oxbow Area Floodplain Soil and Sediment Centredale Manor Restoration Project Superfund Site (June 2011) Section 314 (AR 486543) 142 MACTEC Interim-Final Baseline Ecological Risk Assessment Centredale Manor Restoration Project Superfund Site Prepared for US Army Corps of Engineers (Sept 30 2004) Section 54 (AR 206666-206669206720) I4 Id at Section 64 144 Emharts Public Comments on the Interim-Final Baseline Risk Assessments and Remedial Investigation (Rl) and the Interim-Final Preliminary Remediation Goals Report (PRG) (Oct 192006) (AR 273412) Tab C p 7-8

IW0269328 11 i 22

level harm has occurred45 EPA failed to conduct a comprehensive piscivorous mammalian community survey which may demonstrate that there is no community level harm to mammalian receptors146 EPA made determinations of no significant harm from community surveys for fldodplain soil invertebrates147148 demersal fish149 and pelagic fish150 EPA overestimated potential exposure of piscivorous mammals to chemicals by using inappropriate inputs for exposure point concentrations15

65aiii EPA did not evaluate exposure and thus did not assess potential ecological risks

related to aquatic insect consumption by mammalsI525i 154

65aiv See Response to Finding No 62 c iii

65av See Response to Finding No 62 a i

65bi See Response to Finding No 65 a i

65bii See Response to FindingNo 65 a ii

65biv See Response to FindingNo 62 c iii

65bv See Response to Finding No 62 a i

F Selected Remedy (15166-691

66 In response to Finding No 66 of the Order Emhart responds that the Record of Decision and the

selected remedy related to the Site is arbitrary and capricious or otherwise not in accordance

with law and further is in violation of 42 USC sect9613(j)(2)55

l45Battelle US Army Corps of Engineers Interim-Final Supplemental Baseline Human Health and Ecological Risk Assessment Oxbow Area Floodplain Soil and Sediment Centredale Manor Restoration Project Supcrfund Site (June 2011) Section 44 (AR 486543) 146 Id at Tab c p 15 117 MAC TEC Interim-Final Baseline Ecological Risk Assessment Centredale Manor Restoration Project Superfund Site Prepared for US Army Corps of Engineers (Sept 302004) Section 44 (AR 206666-266669206720) 148 Battelle US Army Corps of Engineers Interim-Final Supplemental Baseline Human Health and Ecological Risk Assessment Oxbow Area Floodplain Soil and Sediment Centredale Manor Restoration Project Superfund Site (June 2011) Section 314 (AR 486543) 119 MACTEC Interim-Final Baseline Ecological Risk Assessment Centredale Manor Restoration-Project Superfund Site Prepared for US Army Corps of Engineers (Sept 302004) Section 54 (AR 206666-206669206720) 150 Id at Section 64 151 Emharts Public Comments on the Interim-Final Baseline Risk Assessments and Remedial Investigation (Rl) and the Interim-Final Preliminary Remediation Goals Report (PRG) (Oct 19 2006) (AR 273412) Tab C pp 7-8 152 Id

Battelle US Army Corps of Engineers Interim-Final Supplemental Baseline Human Health and Ecological Risk Assessment Oxbow Area Floodplain Soil and Sediment Centredale Manor Restoration Project Superfund Site (June 2011) (AR 486543) 154 MACTEC US Army Corps of Engineers Addendum to the Interim-Final Baseline Ecological Risk Assessment Oxbow Area Centredale Manor Restoration Project Superfund Site (Aug 2006) 155 See eg February 28 2013 Responses to the US Governments First Set of Interrogatories to Black amp Decker Response 8 Emharts Public Comments on the Interim Final Feasibility Study Report (May 252011) (AR 486500shy486501) Emharts Public Comments on the Proposed Remedial Action Plan Addendum to the Interim Final Feasibility Study Report and Interim Final Feasibility Study Report (Mar 022012) (AR 506583) Emharts Public

IW0269328 11J 23

67 In response to Finding No 67 of the Order EPA failed to follow NCP regulations156 appropriate

EPA guidance157 and objective science when conducting the baseline human health and

ecological risk assessments for the Site158 These failures resulted in EPA computing potential

health risks that are not site-specific are unrealistic or implausible andor largely exaggerate

current and potential future human exposures and risks Consequently the need for a costly and



68 In response to Finding No 68 of the Order see responses below

68a As described in responses in subsection 61 ai EPA failed to comply with NCP

requirements or to follow EPA guidance in developing estimates of hypothetical

residential exposures to soils above the water table Furthermore as described in

responses on subsection 61di EPA improperly characterized potential exposures to

non-potable groundwater in the vicinity of the Source Area Due to these flaws EPA

inappropriately targeted the Source Area as needing a costly remedy Furthermore

these flaws resulted in the development of cleanup goals that are unnecessarily

stringent for the Source Area Soil action area160

68b As described in responses in previous subsections (61di and 68a) EPA improperly characterized potential exposures to non-potable groundwater at the Site or in the vicinity of the Source Area61 There is no potential point of human exposure to groundwater at the Site nor is there potential for human exposure to Site groundwater beyond the boundary of the Site Thus EPA inappropriately targeted the Source Area Groundwater as needing a costly remedy

68c As articulated in responses in paragraphs 61biii and 61ciii EPA failed to comply with NCP requirements or to follow EPA guidance in developing estimates of hypothetical residential and visiting recreational angler exposures to sediments and fish (through consumption) EPAs flawed analysis portrays multiple implausible exposure parameters for the Allendale Pond and Lyman Mill Pond sediments Due to

Comments on the Proposed Plan Amendment and the Technical Memorandum - Impact of Dioxin Reassessment (Sept 17 2012) (AR 521743) 155 40 CFR sect 300430(d)(4) 157 55 Fed Reg 8710 see also Expert Report of Russell E Keenan PhD (Oct 8 2013) pp 2-12-2 (listing relevant EPA guidance documents) 158 Emharts Public Comments on the Proposed Plan Amendment and Technical Memorandum - Impact of Dioxin Reassessment (Sept 172012) (AR 521743) 159 See Emharts Public Comments on the Proposed Plan Amendment and Technical Memorandum - Impact of Dioxin Reassessment (Sept 17 2012) (AR 521743) Emharts Public Comments on the Interim-Final Baseline Risk Assessments and Remedial Investigation (Rl) and the Interim-Final Preliminary Remediation Goals Report (PRG) (Oct 192006) (AR 273412) Emharts Public Comments on the Addendum to the Interim-Final Baseline Human Health and Risk Assessment (BHHRA) and Interim-Final Baseline Ecological Risk Assessment (BERA) Oxbow Area) (Jan 252007) (AR 273411) Emharts Public Comments on the Interim-Final Supplemental Baseline Human Health and Ecological Risk Assessments Oxbow Area Floodplain Soil and Sediment (Oct 212011) (AR 506581) Integral Consulting Inc Field Sampling and Data Report 2010 Supplemental Investigation of the Iyman Mill Reach Sediment and Flood Plain Soils (July 2011) (AR 492977) 160 Expert Report of Russell E Keenan PhD (Oct 82013) pp 1-3 1-4 161 Emharts Public Comments on the Proposed Remedial Action Plan Addendum to the Interim Final Feasibility Study Report and Interim Final Feasibility Study Report (Mar 2 2012) (AR 506583) pp 77-80

(W0269328 III 24

these flaws EPA inappropriately targeted the Allendale Mill Pond and Lyman Mill Pond sediment action areas as needing a costly and environmentally damaging remedy

68d As described in responses in subsections 61b iii and 61biv EPAs assumptions and modeling of potential current and future risks to residents of and passive recreational visitors to Allendale Pond floodplain soils are inconsistent with and in some cases contrary to NCP and EPA guidance These flaws in EPAs analyses have resulted in the inappropriate targeting of the Allendale Pond Floodplain Soil action area as needing a costly and environmentally damaging remedy

68e As described in responses in subsection 61ci through 61civ EPAs estimates of risks to Lyman Mill residents visiting anglers and to Visitors to the Oxbow General Area Region are grossly flawed and have resulted in the inappropriate targeting of Lyman Mill Stream Sediment and Floodplain soil (including Oxbow) for costly and environmentally damaging remediation


W0269328 l 2

Respectfully Submitted

m Karp Esq Direct iWe (202) 370-3921 jkarpsandwcom

Jerome C Muys Esq Direct line (202) 370-3920 jmuyssandwcom

Enclosure

Cc James T Owens III (wo enclosure) (owensjamesepagov) Michael Jasiriski (wo enclosure) (jasinskirriikeepagoy) Gretchen Muench Esq (wo enclosure) (muenchgretchenepagov) Eve Vaudo Esq (wo enclosure) (vaudoeveepagov)

W0269328 III 26

EXHIBIT A

Attached Documents on Electronic Storage Drive

bull Expert Reports of Emhart Industries Inc and Black amp Decker Inc in the consolidated cases of Emhart Industries Inc v New England Container Co Inc et al CA No 06-218-S (DRI) and Emhart Industries Inc v UnitedStales Dept of the Air Force et a CA No 11-023-S (DRI)

reg Depositions of Emhart Industries Inc and Black amp Decker Inc Experts in the consolidated cases of Emhart Industries Inc v New England Container Co Inc et al CA No 06-218-S (DRI) and Emhart Industries Inc v UnitedStates Dept of the Air Force et al CA No 11-023-S (DRI)

reg Fact Depositions and Witness Statements from the consolidated cases of Emhart Industries Inc v New England Container Co Inc et al CA No 06-218-S (DRI) and Emhart Industries Inc v United States Dept of the Air Force et al CA No 1-023-S (DRI) and Emhart Indus Inc v Home Ins Co et al CA No 02-053-ML (DRI)

reg Responses of Emhart Industries Inc and Black amp Decker Inc to United States Dept of the Air Force et als interrogatories in the consolidated cases of Emhart Industries Inc v New England Container Co Inc et al CA No 06-218-S (D-RI) and Emhart Industries Inc v United States Dept of the Air Force etal CA No 11-023-S (DRI)

reg Responses of the United States Dept of the Air Force ct al to Emhart Industries Inc and Black amp Decker Incs interrogatories in the consolidated cases of Emhart Industries Inc v New England Container Co Inc et al CA No 06-218-S (DRI) and Emhart Industries Inc v UnitedStates Dept of the Air Force et al CA No 11-023-S (DRI)

reg Responses of Emhart Industries Inc and Black amp Decker Inc to New England Container Companys interrogatories in the consolidated cases of Emhart Industries Inc v New England Container Co Inc el alCA No 06-218-S (DRI) and Emhart Industries Inc v United Stales Dept of the Air Force et al CA No 11 -023-S (DRI)

reg Responses of Emhart Industries Inc and Black amp Decker Inc to EPAs CERCLA sect 104(e) Requests for Information as part of EPAs Administrative Proceeding

reg Responses of New England Container Company to EPAs CERCLA sect 104(e) Requests for Information as part of EPAs Administrative Proceeding

reg Seventh Revised Case Management Order (Apr 29 2014) in the consolidated caSes of Emhart Industries Inc v New England Container Co Inc et al CA No 06-218-S (DRI) and Emhart Industries Inc v United States Dept of theAir Force et al CA No 11-023-S (DRI)

IW0269328 II | 27

any releases of dioxins furans or other hazardous substances into the environment at the Site from Metro-Atlantic Incs operations including its hexachlorophene (HCP) manufacturing process Moreover the US Government failed to identify any such evidence in response to Respondents interrogatory requests

Conversely the factual evidence witness testimony and scientific evidence demonstrate that dioxins furans and other hazardous substances were released at the Site as a result of the New England Container Companys (NECC) drum reconditioning operations and waste disposal practices over the span of approximately 20 years from 1952 to 1972 Despite the overwhelming fact record to the contrary EPA has ignored compelling factual and scientific evidence to develop a set of unsupportable Findings of Fact and legal conclusions As demonstrated by Respondents responses below EPA has engaged in conduct that is arbitrary and capricious and otherwise not in accordance with the law which has undermined the validity of EPAs analysis throughout the Administrative Proceeding and has carried over to the Record of Decision selected remedy and the issuance of this Order Further having sought relief in the Court EPA ignores that under the case management order the issues will be decided in trial in the first half of 2015

EPA perhaps because of a conflict of interest between two agenciesof the United States ignores the overwhelming evidence that the likely source of the dioxin contamination alleged to have been found on the Site is the U S Government itself First the scientific evidence shows that the 2378-TCDD alleged to be on the Site could not have originated in the raw material supplied to Metro-Atlantic but rather it originated from a purified product in use in the period subsequent to 1965 for tactical military herbicides and possibly other herbicides used by the US military It also ignores the total lack of explanation from the US Department of Defense parties It does not even consider the fact that the congener profile of the 2378-TCDD detected on the Site matches almost identically the congener profile of 2378-TCDD defected where tactical military herbicides were used in Vietnam

Finally there is an inherent conflict qf interest in one executive agency making findings relating to another executive agency in favor of the executive and against a private party There is no lawful or constitutional way that that the US Government can adjudicate a claim against itself which is what the EPA Order purports to do by virtue of issuing the Order to Respondents

In support of Respondents sufficient cause defenses selected factual and legal bases are set forth below and in the documents attached hereto as Exhibit A This is not meant to be an exhaustive list Rather Respondents rely on the entire fact record developed in the Consolidated Cases and in EPAs Administrative Proceeding Because the fact record in the Consolidated Cases is still being developed and remedial pre-design studies are being conducted Respondents reserve the right tosupplement this response as appropriate

As a preliminary matter and as set forth in further detail in Paragraph 4 below Black amp Decker denies that it is the corporate successor to Atlantic Chemical Company Metro-Atlantic Inc and Crown-Metro Inc and therefore has sufficient cause for declining to comply with the Order Moreover for reasons including those set forth in detail below Enihart has sufficient cause for not complying with the Order because (I) there is no factual basis to support EPAs claim that Metro-Atlantic released dioxin or any other hazardous substances at the Site (2) there is no scientific evidence to support EPAs claim that Metro-Atlantic released dioxin or any other hazardous substances at the Site (3) the fact and expert scientific evidence demonstrates that dioxin and other hazardous substances released at the Site were the result of NECCs incineration operations and the handling Of its customers drums (4) even if dioxin was released from the HCP manufacturing process which the evidence shows it was not the release was only in the Area B portion of the Site and is therefore divisible and (5) the EPA Findings of Fact misunderstand the issues and applicable law regarding the case of Enihart Indus Inc v Home Ins Co el

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IW0269328 11 i 22
















IW0269328 11J 23




















(W0269328 III 24





W0269328 l 2




Enclosure


W0269328 III 26

EXHIBIT A











IW0269328 II | 27















W0269328 II) 12
























IW0269328 111 13


equipment80





wildfires82












80 See eg Id


i W0269328 11 14

















40 CFR sect 300430(d)(4)

W0269328 II 15

















W0269328 111 16




















JW0269328 111 17























i W0269328 11 18
































i W0269328 111 20



















[W0269328 II 21























IW0269328 11 i 22
















IW0269328 11J 23




















(W0269328 III 24





W0269328 l 2




Enclosure


W0269328 III 26

EXHIBIT A











IW0269328 II | 27
























IW0269328 111 13


equipment80





wildfires82












80 See eg Id


i W0269328 11 14

















40 CFR sect 300430(d)(4)

W0269328 II 15

















W0269328 111 16




















JW0269328 111 17























i W0269328 11 18
































i W0269328 111 20



















[W0269328 II 21























IW0269328 11 i 22
















IW0269328 11J 23




















(W0269328 III 24





W0269328 l 2




Enclosure


W0269328 III 26

EXHIBIT A











IW0269328 II | 27


equipment80





wildfires82












80 See eg Id


i W0269328 11 14

















40 CFR sect 300430(d)(4)

W0269328 II 15

















W0269328 111 16




















JW0269328 111 17























i W0269328 11 18
































i W0269328 111 20



















[W0269328 II 21























IW0269328 11 i 22
















IW0269328 11J 23




















(W0269328 III 24





W0269328 l 2




Enclosure


W0269328 III 26

EXHIBIT A











IW0269328 II | 27

















40 CFR sect 300430(d)(4)

W0269328 II 15

















W0269328 111 16




















JW0269328 111 17























i W0269328 11 18
































i W0269328 111 20



















[W0269328 II 21























IW0269328 11 i 22
















IW0269328 11J 23




















(W0269328 III 24





W0269328 l 2




Enclosure


W0269328 III 26

EXHIBIT A











IW0269328 II | 27

















W0269328 111 16




















JW0269328 111 17























i W0269328 11 18
































i W0269328 111 20



















[W0269328 II 21























IW0269328 11 i 22
















IW0269328 11J 23




















(W0269328 III 24





W0269328 l 2




Enclosure


W0269328 III 26

EXHIBIT A











IW0269328 II | 27




















JW0269328 111 17























i W0269328 11 18
































i W0269328 111 20



















[W0269328 II 21























IW0269328 11 i 22
















IW0269328 11J 23




















(W0269328 III 24





W0269328 l 2




Enclosure


W0269328 III 26

EXHIBIT A











IW0269328 II | 27























i W0269328 11 18
































i W0269328 111 20



















[W0269328 II 21























IW0269328 11 i 22
















IW0269328 11J 23




















(W0269328 III 24





W0269328 l 2




Enclosure


W0269328 III 26

EXHIBIT A











IW0269328 II | 27
































i W0269328 111 20



















[W0269328 II 21























IW0269328 11 i 22
















IW0269328 11J 23




















(W0269328 III 24





W0269328 l 2




Enclosure


W0269328 III 26

EXHIBIT A











IW0269328 II | 27




















i W0269328 111 20



















[W0269328 II 21























IW0269328 11 i 22
















IW0269328 11J 23




















(W0269328 III 24





W0269328 l 2




Enclosure


W0269328 III 26

EXHIBIT A











IW0269328 II | 27



















[W0269328 II 21























IW0269328 11 i 22
















IW0269328 11J 23




















(W0269328 III 24





W0269328 l 2




Enclosure


W0269328 III 26

EXHIBIT A











IW0269328 II | 27























IW0269328 11 i 22
















IW0269328 11J 23




















(W0269328 III 24





W0269328 l 2




Enclosure


W0269328 III 26

EXHIBIT A











IW0269328 II | 27
















IW0269328 11J 23




















(W0269328 III 24





W0269328 l 2




Enclosure


W0269328 III 26

EXHIBIT A











IW0269328 II | 27




















(W0269328 III 24





W0269328 l 2




Enclosure


W0269328 III 26

EXHIBIT A











IW0269328 II | 27





W0269328 l 2




Enclosure


W0269328 III 26

EXHIBIT A











IW0269328 II | 27




Enclosure


W0269328 III 26

EXHIBIT A











IW0269328 II | 27

EXHIBIT A











IW0269328 II | 27