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September 17, 2020
VIA EMAIL
Dr. Josh Smeraldi
USEPA – Region II
Emergency and Remedial Response Division
290 Broadway, 19th Floor
New York, NY 10007
Re: Dispute Resolution Proceeding
Riverside Industrial Park Superfund Site - Essex County, Newark, New Jersey
CERCLA Docket No. 02-2014-2011
Dear Dr. Smeraldi:
On behalf of PPG Industries, Inc. (“PPG”), I am writing in reply to the United States
Environmental Protection Agency’s (“USEPA Staff”) September 4, 2020 dispute resolution
response entitled “EPA Region 2 Staff Statement of Position” (the “September 4 Response”).
This reply addresses the arguments in USEPA Staff’s September 4 Response defending USEPA
Staff’s arbitrary and capricious actions in finalizing the Feasibility Study Report (“FSR”) for the
Riverside Industrial Park Superfund site (the “Site”), including USEPA Staff’s July 10, 2020
revisions to the FSR (the “July 10 Revisions”), its July 20, 2020 “final” FSR, and its July 21,
2020 letter declaring the FSR final (the “July 21 Letter”). This letter is written pursuant to
Paragraph 61 of the Remedial Investigation/Feasibility Study (“RI/FS”) Administrative
Settlement Agreement and Order on Consent (“AOC”), and USEPA Staff’s September 10, 2020
letter asking PPG to submit a reply as part of the dispute resolution process.
I. EXECUTIVE SUMMARY
In its July 30, 2020 letter invoking dispute resolution (the “PPG July 30 Letter”), PPG
identified two arbitrary and capricious actions taken by USEPA Staff in modifying and finalizing
the FSR. First, USEPA Staff violated the procedural requirements of the AOC, which required
USEPA Staff to provide PPG with a notice of deficiency and a 21-day opportunity to cure before
modifying PPG’s submittal. Second, USEPA Staff’s unilateral modifications to the FSR were
arbitrary and capricious because they were predicated on a materially flawed conceptual site
model (“CSM”) that disregarded material data from the remedial investigation (“RI”) at the Site.
In its September 4 Response, USEPA Staff denied both of these claims, arguing that (1) it
provided sufficient notice of deficiency as required by the AOC by conditionally approving
PPG’s draft FSR (the “June 8 FSR”) on June 23, 2020, which implied that the June 8 FSR was
deficient; and (2) USEPA Staff’s modifications to the FSR were supported by the evidentiary
Dr. Josh Smeraldi September 17, 2020 Page 2
record, and thus not arbitrary and capricious. Despite USEPA Staff’s September 4 Response,
neither of these claims stands up to scrutiny.
First, USEPA Staff’s claim that it provided a notice of deficiency by conditionally
approving the June 8 FSR on June 23, 2020 is disingenuous at best—the chronology of USEPA
Staff’s actions leading up to the finalization of the FSR show that USEPA Staff never considered
the June 8 FSR deficient at all. Moreover, even if USEPA Staff had intended the June 23
conditional approval to serve as a notice of deficiency, it failed to convey this message. To the
contrary, USEPA Staff’s subsequent communications and actions contradicted this intent,
creating ambiguity and making it impossible for PPG to know that the June 23 conditional
approval was meant to be a notice of deficiency. Indeed, not only did USEPA Staff fail to clearly
identify the June 8 FSR as deficient, it also applied arbitrary deadlines that contradicted the
AOC’s requirements for correcting deficiencies. Additionally, USEPA Staff continued to act as
if the revisions were part of a collaborative process, and not a one-sided approval process. The
purpose of notice is to make a party aware of its rights and obligations, but through its actions,
USEPA Staff made it ambiguous where PPG stood in regards to the procedural requirements of
the AOC. Thus, even if USEPA Staff meant to give notice with its June 23 conditional approval,
it negated this very effort through its ambiguous actions.
Second, the technical arguments raised by USEPA Staff in its September 4 Response fail
to support its CSM. USEPA Staff’s September 4 Response defends a CSM that attributes
groundwater lead concentrations to soil/fill lead concentrations and Site-related releases, but as
PPG has consistently maintained and as will be shown below, technical analyses of the
conditions onsite, including USEPA Staff’s own analyses, demonstrate the groundwater lead
concentrations are due to lead present in subsurface historic fill. Surface soil/fill lead
concentrations, whether from historic fill or PPG operations 50 years ago, simply do not play a
role in groundwater lead concentrations at the site. Perhaps understanding the weakness in its
asserted CSM, USEPA Staff has sought to deflect attention from the data and technical analyses
which do not support its flawed CSM, by focusing extensively on PPG’s use of lead-containing
pigments despite having no affirmative evidence of onsite lead releases. Additionally, the timing
of the FSR and subsequent proposed remedial action plan (“PRAP”) show that USEPA Staff
willfully ignored material technical evidence repeatedly provided by PPG. This deliberate
dismissal of evidence on its own is a violation of the NCP, and it yielded a CSM that is at odds
with the technical facts and science.
In short, the arguments in USEPA Staff’s September 4 Response are unsupported by the
evidence. The record shows that USEPA Staff failed give proper notice of deficiency as required
by the AOC, and the technical arguments advanced by USEPA Staff in its September 4 Response
fail to properly support the key components of USEPA Staff’s CSM. For these reasons, USEPA
Staff’s finalization of the FSR (and the issuance of the PRAP shortly thereafter) was arbitrary
and capricious.
Dr. Josh Smeraldi September 17, 2020 Page 3
II. USEPA STAFF’S REVISION AND FINALIZATION OF THE FSR WERE
ARBITRARY AND CAPRICIOUS BECAUSE USEPA STAFF VIOLATED THE
PROCEDURAL REQUIREMENTS OF THE AOC
A. USEPA Staff Never Provided a Notice of Deficiency as Required by the AOC
It is undisputed that the AOC requires that “EPA shall not modify a submission without
first providing Respondent at least one notice of deficiency and an opportunity to cure within 21
days.” [AOC ¶ 41.] It is also undisputed, including by USEPA Staff’s September 4 Response,
that USEPA Staff’s June 23 conditional approval letter does not reference deficiencies or
otherwise state that it is providing notice of deficiencies (whether under the AOC or otherwise).
Simply put, USEPA Staff did not provide the required notice of deficiency.
USEPA Staff asserts that conditional approval may constitute notice of deficiency for
purposes of the AOC. [September 4 Response at 4.] As an initial matter, USEPA Staff’s June
23 conditional approval letter explicitly references Paragraph 41(b) in granting conditional
approval of the FSR. [USEPA Staff June 23 Letter at 1 (Exhibit 1-A to September 4 Response).]
But the letter contains no mention of Paragraph 41 (requiring notice of deficiency and 21 day
opportunity to cure), Paragraph 41(c) (USEPA Staff modification of submittals), Paragraph 43
(correction of deficiencies after notice of disapproval and deficiencies), or Paragraph 44 (same).
USEPA Staff’s position in the September 4 Response that USEPA Staff considered PPG’s
submittal deficient, yet sent a letter to PPG without any reference to any section of the AOC
relating to deficiencies – while only referencing the portion of the AOC relating to conditional
approvals – is hardly credible. Moreover, USEPA Staff’s after-the-fact explanation that a
conditional approval constitutes notice of deficiency does not comport with the text of the AOC.
[September 4 Response at 3-4.] The AOC is clear: “Upon receipt of a notice of disapproval,
Respondent shall, within 21 days or such longer time as specified by EPA, correct the
deficiencies and resubmit the plan, report, or other deliverable for approval.” [AOC ¶ 43(a).]
USEPA Staff therefore “shall not modify a submission” under AOC Paragraph 41(c) “without
first providing Respondent at least one notice of deficiency and an opportunity to cure within 21
days.” [AOC ¶¶ 41, 41(c).] These sections set out specific requirements regarding the provision
of a notice of deficiency and restrictions on USEPA Staff’s ability to modify submittals.
Contrary to USEPA Staff’s arguments, the AOC’s express terms do not allow for conditional
approval as a means of satisfying the conditions that allow USEPA Staff to unilaterally modify a
submittal.
B. USEPA Staff’s Actions Contradict its September 4 Response
The record shows that USEPA Staff never considered the FSR deficient, and never
intended for PPG to accept USEPA Staff’s June 23 revisions to cure the purported deficiencies.
Instead, PPG revised the FSR at USEPA Staff’s direction, and USEPA Staff recognized that the
June 23 revisions it provided to PPG were themselves deficient in approving a different version
of the FSR on July 20. [PPG July 30 Letter at 4-5.]
Dr. Josh Smeraldi September 17, 2020 Page 4
USEPA Staff argues that since USEPA Staff provided comments and a redline of the
FSR on June 23 with its conditional approval, PPG should have inferred that USEPA Staff was
implying that PPG’s FSR was “deficient” under the AOC. [Response at 3.] The fundamental
problem with USEPA Staff’s argument is that such an inference would also require PPG to infer
that USEPA Staff was violating the AOC, because while the AOC requires USEPA Staff to
provide PPG with 21 days to cure a deficient submittal, USEPA Staff’s June 23 cover email to
PPG explicitly stated that “PPG has 7 days to review and provide EPA a final version of the
documents for review and approval.” [Email from J. Smeraldi (USEPA) to S. Krall (PPG) (June
23, 2020) (emphasis added), attached as Exhibit A.]1 If one is to believe USEPA Staff’s account
of events—that USEPA Staff always intended the June 23 Letter to be a notice of deficiency—
this deadline becomes wholly inexplicable. If USEPA Staff had truly meant for its June 23
Letter to be a notice of deficiency, then it would have provided PPG with the applicable 21-day
deadline explicitly specified by the AOC. [AOC ¶¶ 41, 43.] By the logic of USEPA Staff’s
September 4 Response, PPG should have ignored the plain text of USEPA Staff’s June 23
communications and instead divined that USEPA Staff was providing an implicit notice of
deficiency with a 7 day period to cure in direct conflict with the AOC. Such a position is
untenable. The AOC requires USEPA Staff to provide notice—it does not require PPG to guess
at USEPA’s intent in the face of ambiguous or contradictory directions.
USEPA Staff’s subsequent actions confirmed that it did not consider PPG’s FSR
deficient. [PPG July 30 Letter at 5-6.] Instead, PPG and USEPA Staff were in the process of
collaboratively revising the FSR and correct material flaws in USEPA Staff’s June 23 (and July
10) FSR. [Id.] This was entirely consistent with the process used for multiple submittals in the
past, as USEPA Staff notes – a process that at no time involved even a suggestion that PPG’s
submittals were deficient or subject to unilateral modification by USEPA Staff. [September 4
Response at 3 n. 2.] USEPA Staff even went so far as to set aside its June 23 draft of the FSR
that PPG was supposedly required to follow, ultimately approving a different version. [Id.]
C. The Record Shows USEPA Staff Had No Intention of Considering PPG’s
Objections or Site Data
USEPA Staff’s response attempts to spin PPG’s collaborative efforts to revise the FSR as
acts of kindness on USEPA Staff’s part, arguing that “the Region showed great patience and a
willingness to work with PPG,” that USEPA Staff was merely “providing another layer of
clarification in the form of its July 10, 2020 markup” and that it tried to “help PPG understand
and implement Region 2’s comments.” [September 4 Response at 5.] To the contrary, PPG
understood and implemented USEPA Staff’s revisions where appropriate and supported by the
1 For ease of reference, this email, and the other emails referenced in PPG’s July 30 Letter, are
attached as Exhibit A (Email from J. Smeraldi (USEPA) to S. Krall (PPG) (June 23, 2020));
Exhibit B (Email from J. Smeraldi (USEPA) to S. Krall (PPG) (June 25, 2020)); Exhibit C (Email
from J. Smeraldi (USEPA) to S. Krall (July 10, 2020)); and Exhibit D (Email chain between K.
Bird (Woodard & Curran) and J. Smeraldi (USEPA) (July 17, 2020)).
Dr. Josh Smeraldi September 17, 2020 Page 5
RI/FS.2 To the extent PPG “refused to accept the Region’s comments,” it did so because USEPA
Staff’s comments did not reflect Site conditions and data. [Id.] PPG raised these concerns in
revised drafts of the FSR and in letters to USEPA Staff, but USEPA Staff chose to disregard
them, going so far as to unilaterally modify the FSR without even receiving PPG’s July 21
technical comment letter. [PPG July 30 Letter at 6.]
In USEPA Staff’s view, rather than raising such concerns, PPG’s role was merely to
“follow the Region’s directions” in preparing the FSR, and in failing to do so “acted
inappropriately” – regardless of whether data from the RI/FS supported USEPA Staff’s
positions. [Response at 2.] But contrary to USEPA Staff’s assertions, considering material
scientific and technical Site information and showing how they conflict with USEPA Staff’s
revisions was not inappropriate; it is required by CERCLA and the NCP. USEPA Staff’s
September 4 Response makes its approach to the FSR clear: PPG must generate a final FSR that
would meet USEPA Staff’s arbitrary deadlines and reflect USEPA Staff’s flawed CSM,
regardless of contradictory Site data or procedural protections of the AOC. Though USEPA Staff
has authority under the AOC to approve or modify PPG’s submittals under certain conditions,
that does not give USEPA Staff license to ignore data and scientific facts that it does not like, or
permit it to act arbitrarily and capriciously.
III. USEPA STAFF’S TECHNICAL ARGUMENTS FAIL TO SUPPORT THE KEY
COMPONENTS OF ITS CSM AND WILLFULLY IGNORE THE ANALYSES
PRESENTED BY PPG WHICH DISPROVE USEPA STAFF’S CSM
A. USEPA Staff Has Not Provided Evidence Tying Lead Concentrations in
Soil/Fill or Groundwater to Releases
USEPA Staff’s FSR is predicated on a materially flawed CSM based on a theory that
metal pigments used in paint manufacturing were released into surface soil/fill and are being
mobilized into subsurface soil/fill and then into saturated soil/fill, which then results in elevated
lead concentrations in groundwater. [September 4 Response at 7.] This CSM is not supported
by Site data or the RI. Instead, the RI established that historic fill acts as the source of lead to
groundwater on Site. [Id.]
USEPA Staff argues that historical information and the RI support its position that lead
releases occurred. [September 4 Response at 7.] However, the information mustered in USEPA
Staff’s September 4 Response does not result in this conclusion. Indeed, the “evidence”
presented by USEPA Staff’s in its September 4 Response amounts to little more than speculation
2 For instance, purported “deficiencies” identified in USEPA Staff’s September 4 Response such as
the use of compliance averaging were addressed in PPG’s subsequent FSR submittals. As for
USEPA Staff’s suggestion that PPG “did not identify one” example of a “not factually accurate”
statement in response to USEPA Staff’s request, that suggestion is false. [September 4 Response
at 5.] As a simple and obvious example, PPG informed USEPA Staff on June 25 that USEPA
Staff was incorrect when it revised the FSR to state that PPG had engaged in the production of
lead paint in Building 7 (Lot 63).
Dr. Josh Smeraldi September 17, 2020 Page 6
or contradicts the record.3 For example, USEPA Staff’s September 4 Response intentionally
misstates the record in asserting that “most buildings were constructed with drains and wall slots
with hinged flappers at floor level to allow discharge of sweepings/floor washing to outside the
building.” [September 4 Response at 9.] This is simply false. Based on RI observations of the
buildings onsite, the overwhelming majority of buildings, including Buildings 7 and 12, do not
have drains.4 [RIR at 2-4 to 2-8 (finding that only Building 14 had floor drains); Riverside RI/FS
Work Plan (2017) at 4-22 (no floor drains other than in Building 14 based on Woodard & Curran
observations, NJDEP memorandum, USEPA reports and building tenant/owner statements).]
This is unsurprising. Coatings entering floor drains would inevitably congeal and clog the
drains, and as such, it is typical for coatings operations to avoid floor drains altogether.
USEPA’s September 4 Response also claims that “accidental spills and discharges”
contaminated the Site soils/fill with lead, “as stated in the RI Report,” despite the fact that the
cited page in the RI Report does not reference lead or PPG’s operations in connection with
releases at all. [September 4 Response at 9; see RIR at 7-1 (stating only that “[d]uring historical
and current operations, material and waste handling, discharges from the facilities, and
accidental releases may have resulted in impacts to the surface and subsurface soils (including
fill material) [and] groundwater”) (emphasis added).]5 In the end, all of USEPA Staff’s
“evidence” amounts to little more than a belief that PPG’s operations were “inherently dirty” and
resulted in releases. [September 4 Response at 13.] This is speculation, not evidence.6 Indeed,
3 At most, USEPA Staff has established that PPG used lead-containing raw materials. USEPA
Staff seeks to do so primarily by citing to generic information about PPG’s operations, rather than
Site-specific information. The historical brochure USEPA Staff cites appears to relate to
Milwaukee operations, the cited testimony is not Site-specific, and the 1924 paint specifications
cited do not even appear to be PPG-specific. [September 4 Response at 7-8.]
4 Buildings 7 and 12 have been subject to the most scrutiny from USEPA Staff, and yet floor drains
in Building 7 were not observed by USEPA’s retained contractor (NUS Corporation) in their
1989 assessment of waste pathways. [See Final Draft Preliminary Assessment, Jobar Packaging,
Inc. (1989), Appendix C to Riverside SCSR,]
5 USEPA Staff also references the presence of lead dust within a power plant in support of its
arguments. [September 4 Response at 9.] However, lead dust within a building does not
constitute a release to the environment, despite what USEPA Staff implies. Additionally, USEPA
Staff only claims that PPG “housekeeping activities (such as floor cleaning and sweeping) likely
released the powdered white lead pigment to surface soil/fill material” – again, not evidence of a
lead release. [Id. (emphasis added).] Likewise, USEPA Staff cites a photograph depicting barrels
outside the Site as proof of Site-related lead contamination, but offers no evidence that these
barrels contained raw or finished materials, let alone lead-containing materials. [September 4
Response at 10.]
6 USEPA Staff charges that PPG does not have evidence to support its position. Setting aside
definitive determinations in the RI that historic fill is present at the Site and USEPA Staff’s
admissions in the September 4 Response that historic fill is a source of metal contamination,
USEPA Staff is demanding that PPG “prove the negative” – that is, present evidence that a
release did not happen, even though USEPA Staff has not shown that such a release occurred. It
is USEPA Staff who chose to unilaterally modify the FSR to incorporate a CSM based on
Dr. Josh Smeraldi September 17, 2020 Page 7
USEPA Staff has not identified any signatures of PPG’s operations demonstrating that elevated
lead concentrations in the surface soil/fill and groundwater at the Site are the result of releases.7
USEPA Staff attempts to remedy its lack of evidence by offering a correlation between
zinc and lead detections in soil/fill material at the Site, concluding that “[t]he likelihood that PPG
operations are a source of lead contamination in Site soil . . . is supported by a positive
correlation between lead and zinc in the soil/fill material samples collected during the RI.”
[September 4 Response at 11-12.] However, the opposite is true—the correlation between zinc
and lead at the Site actually disproves the very point USEPA Staff is attempting to make. For
one, the relationship between lead and zinc levels measured over the entire concentration range
remains linear throughout the Site. In particular, the correlation between lead and zinc levels for
the northern and southern portions of the Site yields similar slopes (see Figure 1 below), even
though southern portions of the Site are alleged to have been impacted by paint pigment-related
releases while the northern portions are not.
Figure 1 - Correlation of zinc and lead in soil/fill (mg/kg). Samples from the northern and
southern portions of the Site are shown in blue and green, respectively. Despite the different
potential sources of the zinc and lead contamination, the correlations identified similar slopes.
This correlation suggests that either the source of lead and zinc in the soil/fill is
consistent across the Site, such as from historic fill, or that the lead-zinc ratio is not useful for
identifying this difference. While USEPA Staff interprets the consistent relationship between
these metals as evidence of a Site release, this consistency is more accurately explained by the
speculative lead releases. The burden is on USEPA Staff to support these changes, which appear
baseless based on the RI.
7 Surface lead concentrations around Building 7 are all within the range of concentrations found by
NJDEP in historic fill, further indicating that no releases took place. [PPG July 30 Response at 7-
8 (citing NJDEP Historic Fill and Diffuse Anthropogenic Pollutants Technical Guidance, Table
4-2, at 5 (November 16, 2011).]
Dr. Josh Smeraldi September 17, 2020 Page 8
similar geochemical natures of lead and zinc. The dynamics of these metals in soil and
groundwater – including their affinity for adsorption to clays and organic matter and low
mobility over near-neutral pH levels – are similar, so it is only natural for concentrations of both
metals to be elevated in the same types of soils and conditions. In short, the correlation between
lead and zinc does not indicate either of these metals are attributable to releases.
B. Site Data Contradicts USEPA Staff’s CSM
1. Site data do not support USEPA Staff’s “top down” CSM
Site data do not support USEPA Staff’s CSM premised on a “top down” source of lead
contamination attributable to releases. [September 4 Response at 14.] USEPA Staff seeks to
support its CSM by reference to expected groundwater concentrations based on soil/fill lead
concentrations, relying on Kd values. [September 4 Response at 14.] According to USEPA
Staff, “[a]ssuming 800 mg/kg for lead in the soils/fill, and a partitioning coefficient or log Kd
values for lead ranging from 3.7 to 5, possible aqueous dissolved-phase lead concentrations are
in the range from 8 to 150 ug/L.” [Id.]8 USEPA Staff also states that “[t]otal lead concentrations
in groundwater were found to be greater than 5 ug/L across the Site and as high as 100 ug/L.”
[Id.] USEPA Staff’s problem is that its Kd analysis is independent of the source of lead in the
soil/fill – regardless of whether the lead in the soil/fill is attributable to historic fill or to
operations, the results of the Kd analysis would be the same. USEPA Staff therefore cannot
conclude from this analysis that the lead in groundwater is derived from releases rather than
historic fill. Indeed, the Kd analysis shows that groundwater lead concentrations across the Site
are consistent with contributions from historic fill that PPG has characterized as “background.”
[PPG July 30 Letter at 9 (identifying lead concentrations of 25 μg/L as background
concentrations).]
Instead of supporting its CSM, USEPA Staff has presented no other evidence, such as
soil profiles or other data analyses, that show evidence of the downward transport of lead from
surface soil/fill with elevated levels into the saturated zone. Nor has USEPA Staff attempted to
quantify the supposed rate of lead infiltration from the surface, where the purported lead releases
occurred, to the saturated zone. Lead is considered to be nearly immobile under the conditions
found at this Site, such that NJDEP classifies lead to be an “immobile chemical,” and is thus
unlikely to migrate in significant amounts from surface to subsurface soil. [NJDEP Guidance for
the Evaluation of Immobile Chemicals for the Impact to Ground Water Pathway (2008) at 4.] In
fact, using USEPA Staff’s own log Kd value of 3.7, estimated infiltration of lead from the
surface due to precipitation is less than a quarter of an inch in 100 years (0.4 cm) and infiltration
to a depth of 3 feet would require 25,000 years.9 In other words, USEPA Staff’s own numbers
8 USEPA Staff did not describe the source of, or the calculations used to derive, this wide range of
lead Kd values.
9 NJDEP’s simulations of a generic immobile contaminant with a Kd of 200 L/kg similarly show
an infiltration of only 3.6 inches in 100 years.
Dr. Josh Smeraldi September 17, 2020 Page 9
show that its “top down” infiltration model is baseless and physically impossible. Instead, lead
in groundwater is attributable to historic fill already present in the saturated zone.
2. USEPA Staff has not and cannot rebut PPG’s spatial correlation analysis
An unbiased review of Site data shows that that elevated lead levels in site soils/fill and
elevated lead levels in groundwater are not spatially correlated, contrary to USEPA Staff’s CSM
that lead in surface soil/fill attributable to releases is mobilizing into the subsurface and then
groundwater. [September 4 Response at 13, 18; PPG July 30 Letter at 8; PPG July 21 Letter at 2
(Ex. 1 to PPG July 30 Letter).] There are multiple examples of wells with low lead
concentrations located near elevated soil/fill concentrations and wells with elevated groundwater
concentrations that are located near low soil/fill concentrations. [PPG July 30 Letter at 8; PPG
July 21 Letter at 2 (Ex. 1 to PPG July 30 Letter).] USEPA Staff’s “top down” CSM has no
explanation for these occurrences, and USEPA Staff does not have a substantive response to
PPG’s analysis. Instead, USEPA Staff claims that a “point-by-point spatial correlation between
soil/fill material sample results and groundwater results cannot be undertaken” due to
groundwater gradients and lack of co-located samples. [September 4 Response at 18.]
USEPA Staff’s position is without merit. First, numerous soil/fill depth profiles are in
close proximity to groundwater monitoring wells. Second, PPG properly characterized sampling
depths (Boring B-59 is discussed in greater detail below).10 Third, USEPA Staff’s position that
“soil borings positioned downgradient or side-gradient relative to a monitoring well would not
have an effect on the groundwater contaminant concentrations” is wrong. [September 4
Response at 20.] Groundwater flow patterns at the Site indicate that saturated zone soil/fill are
reasonably well connected with adjacent areas, both “upgradient” and “sidegradient” of the
dominant groundwater flow direction at the Site, due to the tidal influence on the aquifer
underlying the Site. Table 1 (below) identifies monitoring wells and nearby soil/fill locations,
along with notes about their relative locations in response to USEPA Staff’s comments on Table
1 in PPG’s July 21 Letter. [September 4 Response at 20.] Table 1 demonstrates that at least 12
out of the 31 shallow monitoring wells do not show evidence of “top down” infiltration.
10 Groundwater depths are the reported depth to the water table, and most wells were screened over
a 10 ft. interval.
Dr. Josh Smeraldi September 17, 2020 Page 10
Table 1 Comparison of Groundwater and Nearby Soil/Fill Lead Concentrations
Well Nearest Soil
Sampling Location(s)
Relative Locationa
Concentrations Above PRG?
Maximum (Average) Groundwater Concentration
(μg/L)
Soil/Fill Concentration
Range (mg/kg)
Groundwater?b Soil/Fill?
E-1 B-59, B-77 Both locations are 30 ft from the well. B-77 is down- or
sidegradient, depending on tides. B-59 is upgradient.
No Yes 1.3 (1.0) 35-2,530
E-4 B-27 B-27 is 20 ft sidegradient. Yes No 7.4 (6.1) 213-421
E-6 B-4 B-4 is 10 ft sidegradient. No Yes 3.3 (2.3) 650-1,070
E-7 B-4 B-4 is co-located with the well. No Yes 2.0 (1.6) 650-1,070
MW-103
B-53 B-53 is 10 ft up- or sidegradient, depending on
tides.
Yes Barely 18.7 (11.0) 297-803
MW-105
B-38 B-38 is co-located with the well.
Yes No 47.6 (32.1) 18-794
MW-106
B-35, B-36, B-37, B-91
MW-106 is located on a groundwater mound. Soil
locations were chosen in each direction. All are between 30
and 55 ft from the well.
Yes No 26.5 (21.2) 19-504
MW-114
B-12, B-13 B-12 is 15 ft upgradient and B-13 is 15 ft downgradient,
depending on tides.
No Yes 0.28 (0.4) 171-2,000
MW-117
B-10, B-105 B-10 is 40 ft downgradient. B-105 is 50 ft sidegradient or upgradient, depending on the
tides.
Yes No 17.7 (9.5) 31-211
MW-120
B-61, B-62 B-61 is 20 ft sidegradient. B-62 is 15 ft upgradient.
Yes No 25.3 (16) 44-333
MW-122
B-102 B-102 is located 10 ft from the well and the gradient is highly
variable with the tides.
Yes No 7.0 (3.8) 174-264
MW-123
B-56, B-82 B-56 is located 25 ft sidegradient. B-82 is 25 ft up- or sidegradient, depending on
the tides.
No Yes 1.2 (0.7) 17.5-838
Notes: Source: RIR. (a) Soil/fill depth profiles for comparison to the groundwater data were selected based on their proximity to each monitoring well (many depth profiles are within 20 feet of the well, and all are within 55 feet), with consideration given to the groundwater flow direction. Given the tidal nature of the groundwater flow directions at the Site, soil/fill locations may fluctuate between being up-, down- or sidegradient from well locations during the course of the changing tidal cycles. Therefore, groundwater lead concentrations are influenced not only by locations directly upgradient of the sampling point. Distances given are approximate. (b) Based on the maximum groundwater lead concentration at listed well.
Dr. Josh Smeraldi September 17, 2020 Page 11
Additionally, USEPA Staff highlights minor sample depth errors in the figure showing
the monitoring well E-1 and nearby soil profiles, concluding that:
When these errors are corrected, the detected total lead
concentrations in E-1 groundwater samples collected at 10 feet
below the top of well casing (maximum total lead concentration of
1.3 ug/L) are commensurate with the one spatially comparable
soil/fill material sample collected in the nearby boring B-59, at a
depth of 9.0-10.5 feet bgs, with a relatively low-level detected lead
concentration of 34.9 mg/kg. The data therefore do not support
PPG’s position that low-level total lead concentrations in well E-1
were unrelated to the elevated lead concentrations in the nearby
soil/fill material.”
[September 4 Response at 21.]
USEPA Staff’s analysis of minor sample depth errors demonstrates its failure to consider
Site data or understand PPG’s position. [September 4 Response at 21.] Boring B-59 and
groundwater samples in nearby well E-1, which USEPA Staff argues do not support PPG’s
position, instead perfectly encapsulate the flaws of USEPA Staff’s “top down” infiltration CSM.
The highest soil/fill concentration (2,150 mg/kg, average of duplicates) at B-59 was measured at
2 to 4 feet below ground surface (ft bgs, after correcting for the presence of a soil mound).
Under USEPA Staff’s “top down” model, this elevated lead concentration near the surface
should result in elevated groundwater lead concentrations in well E-1. Instead, the groundwater
lead concentration measured in well E-1 was low (<1.5 μg/L), reflecting lower lead
concentrations in subsurface concentrations near the well (34.9 mg/kg), not the elevated lead
concentrations closer to the surface. Contrary to USEPA’s view, these data show that the
elevated soil/fill lead concentration in surface soil/fill at this location had no evident influence on
the subsurface soil/fill or groundwater lead concentrations.
3. USEPA Staff’s Pareto charts do not establish anything regarding
distribution of groundwater lead concentrations
USEPA Staff has presented Pareto frequency charts purporting to represent the frequency
and magnitude of the lead concentrations detected in the northern and southern portions of the
Site. [September 4 Response at 24.] According to USEPA Staff, these figures demonstrate that
the northern and southern portions of the Site have “widespread” lead contamination and that this
contamination is more severe in the southern portion of the Site. [September 4 Response at 26.]
In short, USEPA Staff misuses these Pareto charts, and the purported conclusions drawn from
these charts are not supported by USEPA Staff’s analysis.
The first portion of each Pareto chart is a simple bar chart with the samples ranked from
highest to lowest lead concentration. This is an effective method of identifying the range of
detected lead concentrations and for quickly identifying if (and if so, which) wells most
frequently have elevated lead concentrations, as USEPA Staff has done. Up to this point,
Dr. Josh Smeraldi September 17, 2020 Page 12
USEPA Staff’s approach was reasonable and appropriate for the type of analysis it chose to
conduct. However, USEPA Staff then uses the individual well concentration data to calculate
the “cumulative impact” of the lead concentrations detected at these wells (i.e., USEPA Staff
sums the relative detected lead concentrations at each well over time into one cumulative value).
This is an inappropriate approach that is not scientifically supportable in any way – concentration
data should not be added together to characterize the impact of the contaminants detected at a
site, and further concentrations cannot be summed over several sampling periods.11
As an example, in USEPA Staff’s figure for the northern portion (September 4 Response
Exhibit 24), three of the four highest lead concentrations were measured at well MW-120, which
thus accounts for approximately 40% of the agency's “cumulative impact.” [September 4
Response at 24.] While it is not entirely clear, USEPA Staff appears to be suggesting that 40%
of the total lead for the entire northern portion of the site can be found at well MW-120. It is
equally unclear how a well like MW-117, with three very different lead concentrations were
measured over the site sampling periods (ranging from 2 to 18 μg/L), fits into the “cumulative
impact” analysis. [September 4 Response at 24.] USEPA Staff has asserted that “about half” of
the “cumulative lead” in the northern portion of the site can be found in only two wells (MW-
117 and MW-120) and that half of the “cumulative lead” in the southern portion of the site can
be found in only four wells (MW-105, MW-107, MW-108, and MW-110). [September 4
Response at 24.] However, the range of and average lead concentrations in these two groups of
wells are very different, and the areas of the Site that they represent are also different – indeed,
“half of the cumulative lead” is not a metric that is meaningful for understanding the nature or
extent of contamination. [September 4 Response at 24.]
This “cumulative impact” assessment does not support USEPA Staff’s conclusion that
the southern portions of the Site are impacted by releases rather than historic fill. It also does not
provide further evidence to support USEPA Staff’s assertion that “an active groundwater remedy
is appropriate site-wide.” [September 4 Response at 24.]
C. USEPA Staff Ignored Relevant Site Data Regarding Lead Concentration
Variability
USEPA Staff has wrongly asserted that groundwater lead concentrations are being
governed via adsorption by soil/fill concentrations alone. [September 4 Response at 13.] If
surface soil/fill concentrations were the driver of the detected groundwater lead concentrations at
this Site, then the observed concentrations in groundwater would be expected to be relatively
11 The potential “impact” of a contaminant in the environment is typically evaluated by considering
the mass of contaminant. Models work by constructing mass balances, not concentrations.
Estimating the relative mass at each monitoring well requires considering the temporal
differences, the physical spacing between monitoring wells and/or other sampling points, and
groundwater flow directions, all of which USEPA Staff has refused to consider at the Site due to
the “insufficient” data available.
Dr. Josh Smeraldi September 17, 2020 Page 13
stable over time (reflecting the stable soil/fill concentrations leaching from surface soil/fill), even
in a tidally influenced aquifer like the one present beneath the Site.
Instead, the measured groundwater lead concentrations at the Site have varied over time,
indicating lead mobility is being influenced by other factors. Potential factors that can alter
adsorption dynamics and influence lead mobility that should be considered include pH, redox,
salinity, or the presence of organic matter. [PPG July 30 Letter at 10.] USEPA Staff has
disregarded the variability in groundwater data, stating that the data are insufficient to evaluate
groundwater variability over time. [September 4 Response at 27.] And yet USEPA Staff is
confident enough in the same data set to unilaterally modify and evaluate remedial alternatives in
the FSR.
In contrast to USEPA Staff’s decision to disregard Site data, PPG has evaluated the
factors that may be contributing to short-term increases in lead mobility in the monitoring wells
with the highest concentrations. Both low (<5 μg/L) and moderate (5-25 μg/L) lead
concentrations were detected in wells throughout the Site in at least one sampling period (Figure
2), which suggests that a spatially consistent source of lead is present at the Site, such as would
be found in historic fill, and that elevated groundwater lead concentrations are the result of short-
term, localized mobilization of lead from historic fill materials in response to groundwater
changes. [PPG July 30 Letter at 9.]
Figure 2 Monitoring Well Locations Grouped by Groundwater Lead Concentrations.
These three maps show groundwater monitoring wells grouped by those that have had any
lead measurements less than 5 μg/L, those that have had lead measurements between 5 and 25
μg/L, and those that have had any lead measurements over 25 μg/L, respectively. Low
groundwater lead levels (<5 μg/L) are widespread at the site. Lead concentrations are not
consistently elevated at the site; instead, in many wells, exceedances of the groundwater PRG
have been transitory. Moderate lead concentrations (5 to 25 μg/L) have been detected in
Dr. Josh Smeraldi September 17, 2020 Page 14
wells throughout the site during at least one sampling period, which suggests the presence of
a consistent source of lead, such as would be found in historic fill.
In contrast to USEPA Staff’s CSM, PPG’s CSM accurately describes the current site
conditions – widespread occurrence of moderate lead concentrations reflecting the consistent
contribution of historic fill, temporal variability of lead concentrations, and the significant
mismatches between soil/fill and groundwater lead concentrations – and suggests that elevated
groundwater lead concentrations are localized (and temporally limited) occurrences that will not
readily respond to the remedies USEPA Staff forced into the FSR.
D. USEPA Staff’s FSR Evaluation of Groundwater Alternatives on the Basis of
How They Address Lead Was Arbitrary and Capricious
USEPA Staff’s groundwater alternatives in the final FSR do not reflect the record
generated during the RI for the Site, which shows historic fill is the dominant contributor of lead
to historic groundwater at the Site. [PPG July 30 Letter at 8.] USEPA Staff’s evaluation of
remedial alternatives in the FSR was arbitrary and capricious because USEPA Staff evaluated
how the alternatives addressed lead, which is not attributable to a release and therefore not
actionable under CERCLA. [Id.]
USEPA Staff asserts that lead in groundwater is attributable to operations at the Site, and
that Groundwater Alternative 4 is USEPA Staff’s selected alternative to address these
groundwater impacts. [September 4 Response at 16, 18.] As demonstrated above, there is no
evidence of on-Site releases of lead to soil/fill, and Site data contradicts USEPA Staff’s “top
down” CSM for groundwater impacts – so there is no lead attributable to releases for
Groundwater Alternative 4 to remediate. Moreover, USEPA Staff’s own Kd analysis undercuts
its own changes to the FSR with respect to remedy selection and USEPA Staff’s rationale that
Alternative 4 can restore groundwater quality. [September 4 Response at 18.] Using a Kd of
5,000 (log 3.7) for the Site as USEPA Staff has suggested would result in a retardation factor in
the tens of thousands. Such a retardation factor would mean that it would take centuries to
millennia for a pump and treat system to reduce groundwater lead concentrations at the Site to
below the groundwater PRG. In other words, USEPA Staff’s own Kd value demonstrates that
USEPA Staff’s preferred groundwater remedy is completely impracticable for the Site.
USEPA Staff rejected PPG’s Groundwater Alternative 5 in part because, under that
alternative, “remaining groundwater contamination across the Site would not be actively
remediated.” [September 4 Response at 17.] Yet USEPA Staff’s own analysis shows that the
total lead concentrations in shallow monitoring wells on the southern portion of the Site have an
average total lead concentration of 3.98 ug/L and monitoring wells in the northern portion of the
Site have an average total lead concentration of 3.93 ug/L. [September 4 Response at 28-29
(Exhibit 28).] Given that these concentrations are below PRGs, USEPA Staff’s own analysis
demonstrates why site-wide, active groundwater remediation is not necessary and inconsistent
with the NCP.
Dr. Josh Smeraldi September 17, 2020 Page 15
Rather than continue to force this issue, USEPA Staff should defer selection of a
groundwater remedy pending further analysis and implementation of soil/fill and other remedies
on Site. If USEPA Staff’s CSM is correct, NAPL removal, UST removal, and soil/fill
excavation as part of the proposed waste and soil/fill remedies would address sources of impacts
to groundwater. USEPA Staff could then evaluate potential changes in groundwater contaminant
concentrations to determine whether any groundwater remedy is necessary or appropriate for the
Site.
IV. CONCLUSION
USEPA Staff’s actions in finalizing the FSR were arbitrary and capricious, both
procedurally and substantively. USEPA Staff chose to unilaterally modify the FSR without
regard to the procedural requirements in the AOC. USEPA Staff did so without providing notice
of deficiency to PPG. Contrary to USEPA Staff’s dispute resolution response, USEPA Staff’s
contradictory and ambiguous actions in revising the FSR made it impossible for PPG to infer that
USEPA Staff considered PPG’s FSR deficient. As far as PPG knew, USEPA Staff and PPG
were engaged in a collaborative process to revise the FSR – until USEPA Staff decided that
producing a defensible FSR would cause USEPA Staff to miss its arbitrary, self-imposed
deadlines.
Substantively, USEPA Staff’s version of the FSR is technically flawed and in violation of
the NCP due to ignoring relevant Site data. USEPA Staff’s FSR revisions were predicated on a
theory that lead in groundwater was attributable to Site releases. But USEPA Staff has not been
able to identify such a release, and the evidence USEPA Staff presents in its dispute resolution
response does not establish any different. Instead, Site data contradicts USEPA Staff’s “top
down” CSM, and shows that historic fill is the dominant source of lead to groundwater. USEPA
Staff’s own analyses only confirm this finding.
The only remedy is for USEPA Staff to reopen the FS process and for USEPA Staff and
PPG to generate an FSR with remedial alternatives that take Site data and the RI into account
and are technically and scientifically defensible. At minimum, USEPA Staff should discard its
erroneous groundwater remedy and defer its decision regarding groundwater until after the
soil/fill remedies are implemented.
Dr. Josh Smeraldi September 17, 2020 Page 16
* * *
PPG remains committed to working with USEPA Staff to complete the RI/FS. As
USEPA Staff is aware from our September 11 and September 14, 2020 correspondence, PPG is
also willing to further discuss these objections with USEPA Staff, consistent with Paragraph 61
of the AOC. Please let us know when USEPA Staff is available for these discussions.
Sincerely,
Gary P. Gengel, Esq.
of LATHAM & WATKINS LLP
Enclosures
cc: Mr. Steve Faeth, Esq. (PPG)
Mr. Scott Krall (PPG)
Mr. Kenneth Bird (Woodard & Curran)
Mr. Thomas Pearce, Esq. (Latham & Watkins LLP)
Mr. William Reilly, Esq. (USEPA)
EXHIBIT A
Email from J. Smeraldi
(USEPA) to S. Krall
(PPG) (June 23, 2020)
1
From: Smeraldi, Josh <[email protected]> Sent: Tuesday, June 23, 2020 12:58 PM To: Krall, Scott M <[email protected]> Cc: Ken Bird <[email protected]>; Nickerson, Jay <[email protected]>; Sivak, Michael <[email protected]>; Reilly, WilliamJ <[email protected]>; Gengel, Gary (NY) <[email protected]>; Pearce, Thomas (NY) <[email protected]> Subject: FS Conditional Approval and documents - Email 1 of 2
Hi Scott,
We have completed our review of the FS. Pursuant to Paragraph 41(b), of the AOC, EPA conditionally approves the June 2020 FS (see attached approval letter). EPA’s approval is conditioned upon PPG’s incorporation of the attached comments from the EPA mark-up of each document into the respective final reports.
Due to the size of these files, they will be sent in two separate emails. Please confirm that you received both emails. The attachments in this email include conditional approval letter, redline FS, response to comments, revised tables zip, and a zip with edits to appendices A and B. Email 2 will include corrections needed for the figures.
As a reminder, PPG has 7 days to review and provide EPA a final version of the documents for review and approval. We appreciate your cooperation and we look forward to continuing to work with you in this cooperative manner. Let me know if you have any questions.
Thanks,
Josh
-- Josh Smeraldi, Ph.D. Env. Eng EPA Region 2 Superfund and Emergency Management Division 212 637 4302
EXHIBIT B
Email from J. Smeraldi
(USEPA) to S. Krall
(PPG) (June 25, 2020)
1
From: Smeraldi, Josh <[email protected]> Sent: Thursday, June 25, 2020 4:30 PM To: Krall, Scott M <[email protected]> Cc: Pearce, Thomas (NY) <[email protected]>; Ken Bird <[email protected]>; Gengel, Gary (NY) <[email protected]>; Sivak, Michael <[email protected]>; Reilly, WilliamJ <[email protected]> Subject: EPA follow up
Hi Scott,
As we discussed during the call today, we (EPA) mentioned that we will talk internally and let you know how we would like to proceed with the FS. In particular, EPA appreciates PPG’s stated concerns about certain factual statements in the FS which EPA agreed to discuss further internally, as we have done in the past, in the collaborative spirit of the relationship EPA has shared wth PPG throughout the RI/FS process.
Further, as we discussed, and consistent with our collaborative relationship, EPA would like to offer PPG, for their current review period, that PPG accept/incorporated changes in the redline EPA provided, as you see appropriate. For any changes where PPG does not agree, please provide a comment explaining why PPG believes the information to not to be factually accurate. Please keep in mind that we still have time constraints and to please focus your review on your most significant/salient concerns. We believe these were discussed on the call. For example, PPG agreed that issues associated with the delineation are acceptable, with the understanding delineation would be refined in the RD. Keep in mind, the discussions in the FS need to support the decisions made for the delineations.
So to summarize, accept appropriate edits in EPA provided redline FS document, focus your efforts on significant concerns, and provide comments for EPA review. Please send back a redline with your text/comments by Tuesday 6/30.
Thank you,
Josh
-- Josh Smeraldi, Ph.D. Env. Eng EPA Region 2 Superfund and Emergency Management Division 212 637 4302
EXHIBIT C
Email from J. Smeraldi
(USEPA) to S. Krall
(PPG) (July 10, 2020)
1
From: Smeraldi, Josh <[email protected]> Sent: Friday, July 10, 2020 6:23 PM To: Krall, Scott M <[email protected]> Cc: Ken Bird <[email protected]>; Sivak, Michael <[email protected]> Subject: EPA response for FS
Hi Scott,
We completed our review of the FS however we have not completed our formal response to PPG’s letter. In the interest of time, I am forwarding our redline and comments on the FS so that PPG can begin reviewing. The letter will provide more detail and should be sent Monday but, generally, EPA believes that lead is a site-related contaminant and is impacting the groundwater. Due to this determination, the proposed groundwater alternative 5 would not meet groundwater ARARs and is screened out (additional concerns are mentioned in the FS). Table 5-1 and Table 6-1 need to be restored to EPA’s June 22 version (attached).
Furthermore, it was brought to our attention that guidance on institutional control states that ICs “shall not substitute for active response measures…as the sole remedy unless such active measures are determined not to be practicable, based on the balancing of trade-offs among alternatives that is conducted during the selection of remedy.” https://www.epa.gov/sites/production/files/documents/final pime guidance december 2012.pdf This affects soil/fill alternative 2. ICs along with a fence is not a permanent or enduring engineering control for contaminated soils and the NAPL removal does not address the soil contamination across the site. In the interest of time, we only changed the comparative analysis to state that soil/fill alternative 2 does not meet ARARs.
Below are a few items that need to be updated: 1. TEXT – Please review edits and comments in the word document2. FIGURES – There are a few figures that need edits. Please see attached file.3. COSTS – Some cost estimates needed to be adjusted due to the reduced cap acreage; Attached is the corrected
Appendix B and Table 6-2.4. TABLE 3-1 – Please see attached.
a. We accepted edits to move the sentence on vapor intrusion from Section 3.1.2 to Section 3.4.2. To beconsistent with the text, the title of Table 3-1 was updated (see attachment).
b. Footnote 2 was deleted and has been restored (see attachment).5. TABLE 3-6 - Nickel needs to be removed from Table 3-6 (since nickel has no ARAR exceedances). See
attachment
2
Let me know if you have any questions. Please review and let us know your response by Friday 7/17. Also, please raise any concerns as soon as possible because we do not have any time for week long reviews after this point.
Thanks,
Josh
-- Josh Smeraldi, Ph.D. Env. Eng EPA Region 2 Superfund and Emergency Management Division 212 637 4302
EXHIBIT D
Email chain between K. Bird
(Woodard & Curran) and
J. Smeraldi (USEPA) (July 17,
2020)
1
From: Ken Bird <[email protected]> Sent: Friday, July 17, 2020 5:53 PM To: Smeraldi, Josh <[email protected]>; Krall, Scott M <[email protected]> Cc: Sivak, Michael <[email protected]>; Reilly, WilliamJ <[email protected]> Subject: RE: EPA response regarding changes in FS
Josh –
Thank you for your email. I was surprised, given the process we had agreed upon, to see that EPA’s position is now that it will not be reviewing the FS we intend to submit today. At EPA’s direction, PPG and Woodard & Curran revised the FS to respond to EPA’s comments from July 10 and July 14. Given the material technical issues raised, EPA’s refusal to review the revised FS is an arbitrary and capricious action that would warrant dispute resolution.
We plan to submit the revised FS today in accordance with the schedule EPA set in its July 10 email, and appreciate and anticipate EPA’s review and comments. If EPA declines to review the revised FS, please be advised PPG intends to invoke dispute resolution.
Thank you, Ken
From: Smeraldi, Josh <[email protected]> Sent: Friday, July 17, 2020 2:44 PM To: Krall, Scott M <[email protected]>; Ken Bird <[email protected]> Cc: Sivak, Michael <[email protected]>; Reilly, WilliamJ <[email protected]> Subject: EPA response regarding changes in FS
Hi Scott and Ken,
EPA appreciates PPG reaching out to discuss the FS earlier today. Based on our conversation, PPG is proposing certain changes to the FS that are inconsistent with EPA’s June 23, 2020 conditional approval of the FS, which stipulated that the FS was approved provided that EPA’s markup and comments were incorporated. After the conditional approval, in the spirit of working cooperatively, EPA re-reviewed the FS, at PPG’s request, and on July 10 submitted to PPG a new markup.
At this time, EPA is not accepting any additional changes to the FS that EPA sent to PPG on 7/10. Should PPG have additional concerns or disagree with EPA’s edits or comments, PPG may submit those concerns as comments during the public comment period and EPA will respond to those concerns in the responsiveness summary.
Please let EPA know immediately whether PPG will incorporate all of EPA’s July 10 comments into the FS. If PPG does not accept EPA’s comments, EPA will consider its other options under paragraph 41 of the settlement agreement.
2
Thanks,
Josh
-- Josh Smeraldi, Ph.D. Env. Eng EPA Region 2 Superfund and Emergency Management Division 212 637 4302
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