October 17, 2014

VIA EMAIL: PATTERSON.LESLIE@EPA.GOV

Ms. Leslie Patterson Remedial Project Manager U.S. Environmental Protection Agency, Region 5 77 West Jackson Boulevard Mail Code: SR-6J Chicago, IL 60604-3507

SHORT (RESS MAN & BURGESS PLLC

Re: Comments to the 2014 Draft Supplemental Feasibility Study Report-Soils St. Regis Paper Company Superfund Site

Dear Ms. Patterson:

In our capacity as Special Counsel to the Leech Lake Band of Ojibwe (LLBO), a sovereign Tribal government recognized by the United States and on behalf of the LLBO Division of Resource Management (DRM), we submit the DRM's preliminary comments on the September 8, 2014 draft Feasibility Study (Draft FS) for the St. Regis Paper Company Superfund Site (Site). The Draft FS, is prepared by Barr Engineering on behalf of the International Paper Company (IP) and BNSF Railway Company (BNSF), the PRPs at the Site

Please note that due to a death in his family, John Persell was unable to complete his review and participation in the development of these comments. We therefore, respectfully request that John have the opportunity to submit any supplemental comments he may have on the Draft FS through next Friday, October 24th. Please also note that the DRM would appreciate a conference call with EPA to discuss the significant overarching issues noted below. Mr. Persell will contact you to coordinate a date and time for the call.

General Comments

1. At the outset, the DRM is outraged by the nature and tone of the Draft FS. Rather than an NCP compliant FS, the PRPs have presented EPA with a subjective and biased advocacy document that is of such poor quality that it brings the good faith of its proponents into question. Almost every page of the Draft FS is used to advance the PRPs political agenda of challenging the inherent sovereignty of the LLBO. In the face of this blatant abuse of the CERCLA decision-making process the LLBO has no confidence that the PRPs will ever prepare a balanced and technically defensible decision-making tool - upon which EPA will be making a critical decision regarding the environmental quality of the Leech Lake Reservation. In light of the PRPs

710133 4/017582 00021

999 Third Avenue, Suite 3000, Seattle, WA 98104-4088 I 206.682.3333 phone I 206.340.8856 fax I www.scblaw.com

egregious behavior and considering what is at stake with regard to the future vitality of the Leech Lake Band and its homeland, the LLBO must request that EPA take direct responsibility for preparing the FS for the St. Regis Site.

2. LLBO Resolution No. 2015-27, adopted on August 7, 2014 adopts, as a matter of Tribal law and policy, the soil sampling procedures described in the Letter Health Consultation entitled "Surface Soil Contamination Data Gaps for Residentially-Zoned Areas (Potential Current Dioxin Exposure)," (the HSCA Soil Sampling Procedures). A copy of Resolution No. 2015-27 is enclosed for ease of reference. The HSCA Soil Sampling Procedures will be used in conjunction with the LLBO Hazardous Substances Control Act (HSCA), and are applicable to the investigation and remediation of all soils impacted by releases of hazardous substances within the exterior boundaries of the Leech Lake Reservation (Reservation). Accordingly, the HSCA Soil Sampling Procedures constitute applicable or relevant and appropriate requirements (ARARs) for remedial action within the exterior boundaries of the Reservation. As you are aware, the Soil Sampling Procedures were established in partnership with the Minnesota Department of Health (MDH).

a. Please confirm that the HSCA Soil Sampling Procedures will be considered as ARARs for all remedial alternatives evaluated for QUI, OU2 and OU7.

b. LLBO requests that the FS include a discussion of how the HSCA Soil Sampling Procedures would be applied as part of the remedial alternatives described in the FS.

3. The FS only addresses OUl, OU2 and OU7 without explanation as to why other portions of the Site have been excluded, despite the fact that the Administrative Settlement Agreement and Order on Consent for Feasibility Study, effective September 11, 2008 (FS AOC), explicitly requires IP and BNSF to address the City Dump. See, FS AOC, Appendix A Statement of Work for a Feasibility Study for the St. Regis Paper Company Superfund Site in Cass County, Minnesota, Section I,~ 2.

4. Please provide a timeline for addressing the City Dump.

5. The FS does not evaluate vapor intrusions risks to surrounding residences resulting from remedial alternatives that do not involve any soil excavation.

6. Soil and groundwater remediation is so inextricably related that LLBO does not feel it is appropriate to separate the investigation and remediation of these two pathways. There are inconsistencies and implausible statements throughout the FS regarding what COCs have been identified with respect to soil and the threat of leaving contaminated soil in place that serves as a continuing source of groundwater contamination. One significant reason for this is that IP and BNSF have never completed a comprehensive remedial investigation of all major pathways at the Site. Accordingly, the LLBO requests that a comprehensive nature and extent investigation

710133.4/017582.00021

be completed before dividing the soil and groundwater remedies and proceeding to a FS for soils.

Text-Specific Comments and Illustrations of Concerns

1. The figure on page ii of the FS (and other figures throughout the FS) identifies properties that are zoned for residential use and are "occupied." These occupied residential properties are then improperly treated differently than unoccupied residential properties in the cleanup scenarios presented by IP and BNSF. "Residential" is a zoning category that is not occupancy dependent and remedies for residential Preliminary Remediation Goals should be the same for all properties zoned residential, regardless of whether those properties are currently occupied.

2. In the "Background: The HHERA and ARARs" section of the Executive Summary, Barr states: "There were no unacceptable ecological risks identified in OUl or OU7." p. iii. This statement should be deleted or revised to reflect that a soil ecological risk assessment has never been performed in OUl.

3. In the "Background: The HHERA and ARARs" section of the Executive Summary, Barr further states: "Potential soil-related ecological risks in a small portion of OU2 were identified and will be evaluated separately. Thus, this Report focus ses[sic] on remedial alternatives designed specifically to address potential risks to human health from contaminants in soils." p. iii

a. Barr needs to quantify the vertical and horizontal extent of the soil-related ecological risks in OU2. It is for the agencies, not Barr, to decide whether such area represents "a small portion of OU2."

b. Please explain why the FS only addresses human health risk and refers to ecological risk as being treated separately. The FS AOC requires a comprehensive FS to address all risks associated with QUI, OU2, OU7 and the City Dump. Please provide any memoranda or documents, if any exist, that document EP A's decision to permit separate evaluation of ecological risks.

4. The cancer risk scenarios described in paragraph 1 of page iv of the FS do not evaluate the LLBO Tribal subsistence scenario that includes background dioxin exposures such as deer, fish and ducks. Rather, IP and BNSF only assessed the more contaminated grocery store foods were comparatively assessed. Traditional foods away from the Site are less contaminated and are risk-evaluated in the 2008 LLBO Food Guide. EPA needs to respond to the LLBO's continuing concern that the Tribal member "special population" is not being adequately protected by an FS process that is fundamentally bias against the indigenous Tribal member population. The FS should include the LLBO 2008 Food Guide and evaluate Tribal subsistence food consumption scenarios.

5. The section entitled "ARARS: Tribal Ordinances Raise Issues," beginning on page iv of the Executive Summary, is unnecessary and inappropriate for the purposes of the

710133.4/017582.00021

FS, which is intended to be a factual report of remedial investigation results. The FS report is not an appropriate forum for IP and BNSF to attempt to challenge the applicability of the LLBO HSCA as an ARAR for the Site.

6. Similarly, IP and BNSF's references to the LLBO HSCA cleanup standards as "extremely conservative" and "ultra conservative" is inappropriate advocacy that does not belong in a technical FS report. See, e.g. p. v and the first paragraph on p. vii.

7. The FS is limited to dioxins/furans and carcinogenic PAHs and inappropriately excludes other contaminants of concern that have been detected at the Site, such as Pentachlorophenol (PCP). The fact that PCP is in the soil that may be beneath the top of the water table does not make it only less of a soil related contaminant.

a. PCP has been detected at elevated concentrations in multiple areas of the Site, including, most recently, OU-2. PCP should be evaluated as a site­related soil contaminant of concern (COC) for human health.

b. PCP should be added to the Preliminary Remediation Goals Table on p. v of the Executive Summary.

c. Benzo-a-pyrene TEQs should be added to the list of COCs evaluated and should also be included in the Preliminary Remediation Goals Table on p. v of the Executive Summary.

8. IP and BNSF have chosen not to evaluate the cumulative cancer risk for the Level 1 Residential Preliminary Remediation Goal (PRG), or for the Level 1 Industrial/Commercial PRG. See e.g. Preliminary Remediation Goals Table on p. v of the Executive Summary. Barr should evaluate the cumulative cancer risk or explain why it chose to exclude this analysis.

9. Barr has chosen not to identify a cleanup level for dioxins/furans and Carcinogenic PAHs with respect to the Level 1 Industrial/Commercial PRG. See e.g. Preliminary Remediation Goals Table on p. v of the Executive Summary. Cleanup levels for these contaminants with respect to the Level 1 Industrial/Commercial PRG should be provided.

10. On pages 10-11 of the FS, Barr states: "This 2014 Draft Supplemental Final Feasibility Study Report does not address groundwater issues other than those associated with possible exposure due to work in soil excavations in certain areas where it was determined by the U.S. EPA that potential risks were unacceptable. Other groundwater issues are being addressed separately."

710133.4/017582.00021

a. It is imperative that Site source materials (principal threat wastes) be removed, from saturated or unsaturated Site soils, in order that the Site groundwater remedy completion can be "aggressively" completed as is required in the Minnesota Enforcement Decision Document dated March 5, 1986.

b. On page 42, Barr states: "No principal threat wastes (e.g. source material) have been identified as part of the final soil remedial measures under consideration in this feasibility study; therefore, the need for technologies that comply with CERCLA's and NCP's preference of treatment of the soil is less critical." The Draft FS disregards heavily contaminated soil located beneath the groundwater table that continues to serve as a continuing source of contamination to groundwater.

11. Section 2.4.1.2 the Draft FS discusses EP A's directive to IP and BNSF to include the HSCA PCP cleanup value as a PRG "for the eco-risk area in OU2 and all of U2 for the 2011 Revised Final Feasibility Study Report ... The portion of the directive regarding the HSCA [PCP] cleanup value is not incorporated since [PCP] is not considered a COC for OU2." It is difficult to understand why PCP is not a COC for OU2, especially when Barr's Technical Memorandum to EPA dated October 6, 2014, regarding additional groundwater investigation in OU2, explicitly states: "The OU2 groundwater quality investigation was conducted in response to EP A's request based on the results of soil investigations in this area of the Site (Barr, 2013)." Clearly, the soil investigations referenced in Barr's October 6, 2014 memorandum indicated detections of PCP, identifying PCP as a soil COC for OU2.

12. Section 4.2 of the FS discusses the forested areas in OUl and OU2. However, the soil ecosystem in these forested areas has not yet been evaluated.

13. In the second paragraph on page 65, Barr states: "Alternative Sl 1 will be protective of human health and the environment for all properties where access is granted in OUl, OU2 and OU7 by eliminating the direct contact pathway for residential or industrial/commercial land use and by eliminating the potential migration of Site­related contaminants by windblown durst and surface water erosion." This conclusion does not take into account future use of these properties - the protectiveness only remains if IP continues to own the properties to which access is not granted or if the use of these properties remains the same in perpetuity. Deciding to fence off a property in perpetuity is neither a feasible nor economical remedial alternative. Moreover, the last opportunity to provide future economical value due to existing hazardous wastes is not valued.

14. The last paragraph on page 67 discusses the need for institutional controls for Alternative S 11 but the Draft FS does not discuss how proposed institutional controls (ICs) will comport with the Tribal HSCA and Land Acquisition Ordinance in the context of remedy "Long-term Effectiveness and Permanence." Moreover, ICs are not favored under the HSCA and may preclude future fee to trust transactions in violation of Tribal policy.

15. In evaluating the short-term effectiveness of each remedial alternative, the FS should also evaluate benefits to the local economy as a result of employing local people and businesses to perform the remedial work, as well as the future business opportunity that would be attracted to the cleaned up industrial and commercial lands. These

710133.4/017582.00021

economic benefits should balance out concerns over disruption of C02 emissions from trucks hauling excavated soil and providing clean soil.

16. Figure 5-1 of the FS, for Alternative S 11 identifies a number of properties where, according to the legend, samples were "less than PR Gs." This does not appear to be accurate based on Figure 3-1, which identifies the same properties as having had detections above Level 1 PRGs-R. Barr should correct Figure 5-1.

LLBO also encloses and incorporates by reference comments from the Minnesota Pollution Control Agency (MPCA) to EPA dated April 29, 2014, regarding IP's "Preliminary List of Remedial Action Alternatives for 2014 Supplemental FS St. Regis Paper Company Superfund Site." All of MPCA's April 29, 2014 comments represent concerns shared by LLBO with respect to the FS that have not yet been addressed by IP and BNSF. The LLBO also encloses and incorporates the preliminary concerns raised by a Trustee Council representative with regard to the Draft FS.

The LLBO believes that to adequately protect human health and the environment within the exterior boundaries of the Reservation, it is imperative that EPA, MPCA, MDH and LLBO work in close consultation with respect to EP A's development of the RI/FS and EP A's selection and implementation of a preferred soil and groundwater remedy. LLBO supports EPA's work at the Site and the comments above are intended to ensure the protection of the health of all people potentially affected by the presence of hazardous substances in soils and groundwater within the exterior boundaries of the Reservation.

RAD:mw Enclosures

Sincerely,

- wRESSMAN & BURG·E.SS PLLC

~ Richard A. Du Bey

cc: Members of the LLBO Reservation Business Committee Rich Robinson John Persell Natural Resource Trustee Council Representatives Kevin Mustonen, MPCA David Jones, MDH Daniel F. Pefia, M.S., MDH Thomas Turner, ORC, EPA

710133.4/017582.00021

• Minnesota Pollution Control Agency Duluth Office I 525 Lake Avenue South I Suite 400 I Duluth, MN.55802 I 218-723-4660

800-657-3864 I 651-282-5332 TTY I www.pca.state.rnn.us I Equal Opportunity Employer

April 29, 2014

Ms. Leslie Patterson United States Environmental Protection Agency 77 West Jackson Blvd., SR-SJ Chicago, IL 60604

EMAILED

RE: MPCA Comments on International Paper's Preliminary List of Remedial Action Alternatives St. Regis Superfund Site, Cass Lake, Minnesota

Dear Ms. Patterson:

Minnesota Pollution Control Agency ("MPCA") Site Remediation and Redevelopment Section staff completed a review of International Paper's February 7, 2014 "Preliminary List of Remedial Action Alternatives for 2014 Supplemental FS St. Regis Paper Company Superfund Site" letter.

The following MPCA comments are provided for EPA consideration.

MPCA Comments

1. International Paper's ("IP") Supplemental Feasibility Study letter ("SFS Letter") for the St. Regis Superfund Site ("Site") indicates the upcoming SFS will describe a number of underlying assumptions associated with the specific alternatives. The MPCA may have additional comments after the underlying assumptions are revealed.

2. The SFS Letter indicates one of the Soil Technical Workgroup ("STWG") tasks was consideration of "new, hybrid, or revised alternatives." The consideration of remedial alternatives was not a major discussion topic during STWG meetings and we believe this comment overstates the STWG's role in discussing or evaluating alternatives.

3. The SFS objectives statement should clearly state that the proposed alternatives are limited to addressing risks associated with known surface soil contamination only and not contamination associated with deeper soils or groundwater. The references to groundwater in the SFS Letter . (i.e., " ... groundwater risks to underground workers ... " listed under Alternative SlO and " ... prevent exposure to contaminated soil and groundwater ... " listed under Alternative S12) do not accurately reflect the remedial action goals associated with the SFS. Any groundwater references included in the SFS should include a statement about how those issues are being addressed under a separate remedy.

4. Pentachlorophenol ("PCP") has been detected at elevated concentrations in multiple areas and the MPCA continues to believe PCP should be listed as a Contaminant of Concern ("COC") .

Ms. Leslie Patterson Page 2 April 29, 2014

5. Do the Site's human health related dioxin Preliminary Remediation Goals ("PRGs") need to be reevaluated in light of the USEPA's recent dioxin reassessment?

6. A description of the Institutional Controls ("ICs") required for each alternative is warranted. The description should include the type(s) of potential ICs, potential locations, and the government unit(s) that will oversee implementation of the ICs.

7. Property Realignment between Operable Unit (OU) 1 and OU7. Carefully considered and appropriately implemented property realignment(s) may have potential benefits by reducing the occurrence of "outliers" (i.e., isolated islands of one property classification located with in a larger block of dissimilar classification). However, potential real ignments must account for a property's current zoning and land use and realignments should not be used to decrease protectiveness (e.g., property zoned commercial but used for residential purposes should be treated as residential, not commercial, for cleanup purposes, etc).

8. FS Area limited to south of the BNSF tracks. If soils north of the tracks are impacted above the applicable PRGs, those areas should be included in and addressed by the SFS. If those areas are not included in the SFS, a clear statement should be provided regarding the timing of, and process for, addressing those areas via a separate remedy decision.

9. Eco-Risk Area . The MPCA agrees that the Eco-Risk Area could be considered separately. The figures included in the SFS Letter do not clearly delineate the boundaries of the Eco-Risk Area, so clarification regarding the boundaries is warranted and a remedy for this area should be selected in a timely manner. It should be noted that in addition to the already identified ecological concerns, delays in addressing this area could also have the potential to impact other portions of the Site via fugitive dusting and soil tracking. Additionally, if similar ecological risks exist on other portions of the Site, those areas should be addressed in a manner similar to this area.

10. Trees on IP Property. Insufficient information has been provided to evaluate the feasibility of accepting existing trees as effective cover. Additional information should be provided detailing how trees prevent contact with the soil and prevent fugitive dusting and soil tracking. Information that may be helpful for evaluating this proposal could include, but is not limited to, an inventory of the tree species present, population age-distribution statistics for the trees present, species-specific average life-spans, etc. The tree-related operation and maintenance plan referenced in, but not included with, the SFS Letter should consider the need for a fire-suppression plan for the areas in question.

11. OU3 and City Dump. The MPCA recently submitted copies of the Cass Lake City Dump Investigation Report to the USE PA, the Leech Lake Band of Ojibwe ("LLBO"), IP, and the City of Cass Lake. The significance of the detections of Site-related contaminants in the Dump should be discussed by the group in the near future . Any remedial alternatives developed for this area should be tailored specifically for the Dump.

12. Onsite and Offsite Soil Management Options. Onsite soil consolidation and management is worth considering; however, it may not be appropriate for all soils and the suitability of potential consolidation areas should be carefully evaluated. Not-too-exceed criteria (e.g., stained soils, elevated analytical results, etc) which trigger off­site disposal of highly contaminated soils should be considered. For the soils that onsite consolidation may be appropriate for, consideration should be given to the location(s) of soil consolidation area(s), including ownership and control, the need for ICs, potential leaching-to-groundwater issues, engineering controls (amount and type of cover), long-term monitoring, and local acceptance.

Ms. Leslie Patterson Page 3 April 29, 2014

13. The MPCA supports additional flexibility for further developing remedial alternatives tailored to specific OUs and smaller areas within OUs. Land use/ownership and degree/depth of contamination are factors that could be considered when evaluating options. For example, contamination "hot-spots" located on non-IP or Burlington Northern Santa Fe ("BNSF") Railway owned property could be removed to make the land more attractive for future reuse.

14. Due to the difficulties associated with properly maintaining gravel roads as cover, the portion of the remedy that addresses roads that are open to vehicle traffic should include paving.

15. In Figure 4, the blue line shading used to indicate a Level 2 PRG exceedance does not indicate if the PRG exceeded is a Residential Level 2 PRG (e.g., dioxin level of 63 parts per trillion, ppt, etc) or a Commercial/Industrial Level 2 PRG (e.g., dioxin level of 380 ppt, etc). Clarification should be provided regarding which Level 2 PRG is being exceeded. Doing so would enhance the usefulness of Figure 4.

16. The "Modified" OU Boundaries depicted by thick black lines on Figures 2, 3, 4, and 5 do not appear to account for the all of the OUl to OU7 property boundaries (i.e., some of the proposed OU realignments, such as property OU7-A80, do not appear to be represented).

17. It would be helpful if the OUs were labeled in each figure.

If you have questions regarding the content of this letter, please contact me at (218) 302-6641 or Mark Elliott at (218) 302-6649.

Sincerely,

Kevin S. Mustonen Project Leader Site Remediation and Redevelopment Section Remediation Division

St. Regis Paper Company Superfund Site Preliminary St. Regis Site Trustee Council Comments to EPA on the

9/8/14 Draft Supplemental FS-Soils

1. There were unacceptable ecological risks - There were exceedances of state surface water standards in the forested wetland, and dioxins exceeded ecological soil screening levels throughout OUl and OU?.

(Section: Executive Summary - Background: HHERA and ARARS; ~ 1, Page iii).

2. Question their use of background concentrations.

(Section: Executive Summary - Summary of Site Risks: Limited Areas Where Risks Trigger Action; ~ 3, Page iv).

3. Risks for Fox Creek or Pike Bay have not yet been determined as being acceptable -still under investigation. The area of ecological risk in OU2 is also undetermined but understood to be expanding.

(Section: Executive Summary - Summary of Site Risks: Limited Areas Where Risks Trigger Action; ~ 5, Page iv).

4. Question their use of background concentrations.

(Section: Executive Summary - ARARs: Tribal Ordinances Raise Issues; ~ 2, Page iv).

5. Delete terms - "Conservative to Ultra Conservative" each time used and from the following title.

(Section: E.q. Executive Summary - Preliminary Remediation Goals: Conservative to Ultra­conservative Cleanup Levels that are Protective of Human Health and the Environment; Title; Page v).

6. Are the PRGs correct, and have EPA, MPCA and MDH risk assessors reviewed and approved the PR Gs?

(Section: Executive Summary - Preliminary Remediation Goals: Conservative to Ultra­conservative Cleanup Levels that are Protective of Human Health and the Environment; ~ 1, Page v).

7. Has maintaining forest in areas of soil contamination been identified as a remedial action objective by EPA, MPCA and the LLBO?

(Section: Executive Summary - OUl - Former Operations Area (industrial/commercial properties that were once part of the wood treating facility and are largely vacant now); ~ 1, Page vii).

8. Were risk assessment conclusions re-evaluated incorporating the new data?

(Section: Introduction - 1.1Background;~10, Page 3).

9. Have MPCA and MDH agreed with this?

(Section: 2.3.4 Other Criteria to be Considered; ~ 4, Page 25).

710186.2/017582.00020

St. Regis Paper Company Superfund Site Preliminary St. Regis Site Trustee Council Comments to EPA on the

9/8/14 Draft Supplemental FS-Soils

10. Does EPA, MPCA and LLBO agree with this conclusion?

(Section: 2.3.4 Other Criteria to be Considered; ~ 5, Page 25).

11. Have the PRGs been reviewed and approved by the regulatorv partners?

(Section: 2.4.1.1 Risk-Based PR Gs; ~ 1, Page 27).

12. 95th percentile values are only appropriate for comparing individual sample values of small data sets to determine if they belong to background or elevated populations; they are not appropriate to be compared to the PRGs.

(Section: 2.4.1.1 Risk-Based PR Gs; ~ 2, Page 28).

13. This section is irrelevant; the dietarv intake from non-site sources is unknown for local residents/workers, and has no bearing on Superfund cleanup decisions.

(Section 2.4.4 Perspectives on Intake Reduction; Title highlighted, Page 30).

14. By who? For what purpose?

(Section 4.2.1 Assessment of Forested Areas,~ 2, Page 51).

15. The habitat for ecological receptors will continue to be exposed to contaminants.

(Section 4.2.1 Assessment of Forested Areas,~ 3, Page 52).

16. Is this question directed to the Natural Resource Trustees? The Natural Resource Trustees have not yet determined whether they have a preference for preserving the trees over removing contamination.

(Section 5.2.2 Alternative Sll ... ; ~ 5, Page 64).

17. The forested wetland is currently out of compliance with applicable standards, therefore, how will this be protective? Are the wetlands now excluded from all OUs?

(Section 5.2.2 Alternative Sll .... ; ~ 4, Page 65).

710186.2/017582.00020