These comments are submitted regarding the proposed Partial Consent Decree in the above-captioned civil action, pursuant to the solicitation of public comment in the Notice of Lodging of Partial Consent Decree Under the Clean Water Act published at 70 Federal Register 23228 (May 4, 2005).
For the reasons stated below, KRC respectfully requests that certain modifications be made to the proposed partial Consent Decree.
I. KRC Requests That Public Notice And Comment Be Provided For All Plans, Schedules And Budgets Required To Be Submitted By MSD
KRC appreciates the recognition by the parties (Whereas Clause 6) that adequately informing the public and allowing full participation by the public is important to achieving elimination of unauthorized discharges from CSOs. Since it is primarily the ratepayers who will fund the abatement costs for CSOs, public education, awareness and involvement, and full transparency in the design and implementation of the plans, is essential and appropriate.
KRC is concerned that public notice and comment does not appear to have been included in several important areas under the Consent Decree, and requests that public notice through maintenance of a mailing list and newspaper and other media notification, followed by public meetings and a comment period, be provided at the point in time that these required studies and reports are prepared in draft form and prior to finalization of the plans for submittal to the state and EPA:
* The Early Action Plan, in order that the public may review and comment on the sufficiency of the compliance demonstration and on the proposed schedules and activities outlined in the NMC and EAP,
* The Capital Improvement Project List,
* The CMOM Program Self-Assessment,
* The Sanitary Sewer Discharge Abatement Plan,
* The updated interim and final LTCP and any subsequent revisions.
Additionally, the comments received on the draft documents should be transmitted with the final document to EPA and the state.
II. KRC Urges Caution Concerning The Potential Reuse And Provision Of Public Access To The Former Lee?s Lane Landfill Superfund Site
The proposal to convert and reclaim the former Lees Lane Landfill into an area for public use is one that concerns KRC for several reasons.
By way of background, Lees Lane Landfill, a 125-acre tract of land along the Ohio River in Jefferson County, Kentucky, was a former sand-and-gravel quarry operated by the Hofgesang Company. Beginning in 1948 and until April 1975, the site received waste from industrial, commercial and domestic sources.
In December of 1982, it was ranked as 260th of 418 sites proposed for inclusion on the National Priorities List of Superfund sites by EPA, and was listed as a NPL Superfund site. The site was the subject of a removal action conducted by EPA and later, to some basic remediation action by the Louisville and Jefferson County Metropolitan Sewer District (MSD), who had been identified as a potentially responsible party due to past disposal of wastes at the site.
Records indicate that 212,400 tons of industrial waste - some of it drummed, but some as solids and uncontained liquids - were dumped there, though the actual amount is likely significantly higher.
The landfill is located in the very permeable, porous alluvium of the Ohio River, and there is no evidence of any impermeable barrier having been installed between the waste and the groundwater; since liners or other barriers were not typically built under dumps of that era. Rather the landfill was formed by random dumping of various wastes into open pits created by the sand and gravel mining. The wastes were and continue to be in direct communication with groundwater flowing with the prevailing gradient to and from the river.
Some of the wastes were putrescible and have decomposed, creating methane and other gases. After these gases migrated into the basements of homes as far as 900 feet away in the early 1970s, a gas venting system was installed in 1980 to draw off the gases and vent them into the atmosphere.
When EPA delisted the site from the Superfund in 1996, it did so after determining that no further cleanup was appropriate. As with many superfund sites, the wastes were not removed nor the site fully restored but instead the remediation work consisted of removal of some 400 drums near the Ohio Rivers bank, rip-rapping with stone along the riverbank to prevent further erosion, inspection and repair of the gas collection system, and installation of cautionary signs and a gate.
Under an Administrative Order of Consent signed by EPA, Jefferson County and MSD, MSD, as one of the potentially responsible parties, agreed to an Operations and Maintenance (O&M) Plan including site inspections, air quality monitoring and maintenance of the gas collection system and riverbank protection. MSD agreed to assume responsibility for the O&M plan for 29 years, from 1991 to 2020.
Unfortunately, the venting system has not been maintained, and was never fully installed as intended. The vented gas was under the initial design, to be captured and flared as thermal treatment of the mixed gas stream, yet the flare was never installed. According to MSD, the current gas venting system is not functioning properly and is in serious need of upgrading and replacement, and regardless of the SEP, that work will be bid shortly. It is believed that a significant portion of the piping system has failed. Specific Concerns With Development Of Site For Public Use
KRC has these concerns with the proposed development of Lees Lane Landfill as a public recreation property:
1. Until it is demonstrated that the area is stabilized so that there are no uncontrolled releases from groundwater to the Ohio River through soil gas and vented gas emissions or through soil contamination, encouraging public access (and in fact continuing to tolerate unauthorized access such as now occurs) should be prevented. Public notice of the existence of hazardous substances in the landfill, and the reasons for the posting of the property, should be explained on the posting signs in order to discourage ORV users and other trespassers.
Allowing access while the gas venting system remains in place invites public exposure to an uncharacterized mixture of toxics air contaminants, and is irresponsible. The gas collection system vents without providing treatment about 10 feet above ground level, at the boundary between the landfill and the neighborhood. Numerous volatile compounds have been detected but have not been thoroughly analyzed for composition and risk.
2. Potential exposure of residents to contamination leaching from the landfill into the Ohio River is of continuing concern. Little sampling was ever conducted of the seepage from the alluvium and of groundwater flow to the river along and downstream of the landfill, and prior to any consideration of public access, thorough characterization of the lateral migration of groundwater to and from the site, and of the presence of constituents of concern in the groundwater, would be necessary. Allowing current and encouraging more public access to that riverfront area is of concern from persons wading in or fishing from that stream reach, unless testing demonstrates an absence of migration of contaminants from the site.
3. The remediation plan did not contemplate public access to the site, but instead assumed limitations on public exposure both to soils and to soil gases from the landfill. The soil concentrations of compounds of concern should be resampled in order to determine whether the soil meets residential screening values for unrestricted access, particularly in any area where settlement has allowed ponding to occur since ponded areas were required to be eliminated in 1991. If not, additional barriers in the form of clean soil and additional synthetic and/or clay cap would be needed to isolate the waste from the public and to prevent creation of pathways of exposure through erosion and other violations of the buffer, particularly since the site is being used for motorized vehicles.
4. If MSD wants to allow formal public access, they will first have to secure necessary permission from the actual owners of the property, and then determine whether the site is stable and appropriate for public access. EPA may also require that they reopen the record of decision on the delisting to determine whether the more intensive use is consistent with the conclusion that the remedy is protective of public health, welfare and the environment. In any event, since the agency is aware of informal public use of the site by children and recreational vehicle riders, they should already, under existing agreement take those steps, including upgrading the venting system and installing controls to scrub the gases, necessary to prevent such access or to assure safety of anyone traversing the site.
5. The costs of these actions should not be credited under the Consent Decree since MSD already has responsibility for O&M on this site as a responsible party, and work necessary to upgrade the venting system and security should already be undertaken as part of normal maintenance.
III. Recommendations Concerning Fines And Supplemental Environmental Projects
KRC strongly supports the concept of enhanced health screenings, but believes that the cost of those screenings should be borne by Metro Government and recaptured through air permitting fees on all sources of emission of hazardous and criteria air pollutants (including MSD), since the health impacts of the emissions from the operation of the Morris Forman plant are but one facet of the cumulative exposure from numerous permitted releases from Rubbertown industries, and emissions from upwind sources. KRC supports retention of the SEP for the health screenings only in the event that the Metro Government fails to provide funding for the screenings and fails to recoup the costs proportionately from the various sources of conventional and hazardous air pollutants in the west county area.
The imposition of the $1 million fine which will go to the states general fund is of no value as a deterrent and should instead be required to be dedicated towards advancing the pace of elimination of CSO and SSO problems. This case does not involve a private, for-profit company whose fine will ultimately be paid by its shareholders, customers or private insurers, but one where a quasi-public corporations ratepayers will bear the costs of all penalties and fines. The fines will not be paid by MSD, but by the citizens who have only the most indirect control over the decisions that gave rise to the penalties.
To the extent that EPA is adamant that there should be an additional penalty paid by MSD, KRC requests that in lieu of the $1 million fine being paid into the state treasury, that the funds be earmarked for continuation of the air toxics monitoring network for west county, which has been instrumental in providing baseline ambient air toxics information and will continue to be essential in measuring changes in ambient concentrations as the county air toxics program is implemented.
Thank you for your consideration of these comments.
Tom FitzGerald Director