United States
Environmental Protection
Agency
Office of
Emergency and
Remedial Response
.EPA/ROO/R09-88/026
September 1968
SEPA
Superfund
Record of Decision
South Bay Asbestos Area, CA
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30277-101
REPORT DOCUMENTATION
PAGE
ir REPORT NO.
EPA/ROD/R09-88/026
3. Recipient's Accession No.
4. Title and Subtitle
SUPERFUND RECORD OF DECISION
South Bay Asbestos, CA
First Remedial Action - Final
5. Report Date
09/29/88
7. Authorti)
8. Performing Organization Rapt.
f. Performing Organization Name and Address
10. Project/Task/Work Unit No.
11. Contract(C) or Grant(G) No.
(C)
(G)
12. Sponsoring Organization Name and Address
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
13. Type of Report & Period Covered
800/000
14.
15. Supplementary Notes
16. Abstract (Limit: 200 words)
The South Bay Asbestos (SBA) site is located at the northern end of the Santa Clara
Valley and at the southernmost extent of San Francisco Bay, in Alviso, California. The
site is within an area of approximately 330 acres, and is comprised of a mixture of
residential, commercial, light industrial, and agricultural land uses. Approximately
1,700 residents live in Alviso. The site is comprised of a ring levee, which extends
around the community of Alviso on the east, north and northwest. It is approximately
four to twelve feet in height, two miles in length, has a trapezoidal shape, and covers
an area of about eight acres. A narrow path exists along the crest of the levee. The
levee was built by the City of San Jose in 1983 during a major flood caused by the
Coyote Creek and the Guadalupe River. It lies within the 100-year flood plain of the
Guadalupe River and was constructed on portions of wetland areas adjacent to the
community of Alviso. It also abuts wetland areas next to a national wildlife refuge
near Alviso. In August 1983, an excavation occurred on property owned by the City of
San Jose involving the construction of an outfall structure at the Guadalupe River
levee. The excavation revealed asbestos contamination ranging from 20 to 40 percent by
area. Contaminated soil was removed between August and December 1983. A September 1983
soil sampling also revealed the presence of asbestos contamination throughout the
(See Attached Sheet)
17. Document Analysis . a.. Descriptors
Record of Decision
South Bay Asbestos, CA
First Remedial Action - Final
Contaminated Media: soil
Key Contaminants: asbestos
b. Identifiers/Open-Ended Terms
e. COSATI Reid/Group
18. Availability Statement
19. Security Class (This Report)
None
20. Security Class (This Page)
None
21. No. of Pages
235
22. Price
(See ANSI-239.18)
See Instructions on Reverse
OPTIONAL FORM 272 (4-77)
(Formerly NTIS-35)
Department of Commerce
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EPA/ROD/R09-88/026
ISouth Bay Asbestos, CA
First Remedial Action - Final
16. ABSTRACT (continued)
community of Alviso, including the ring levee. As a result, EPA sprayed the ring levee
with a polymer dust suppressant to control asbestos dust in May 1986, in 1987, and again
in July 1988. The primary contaminant of concern affecting the soil is asbestos.
The selected remedial action for the ring levee includes: stripping and rough grading
of the levee; placement of a compacted soil layer and a top soil cover followed by
revegetation to prevent erosion; alteration of the side slopes and construction of a
three-foot wide path on the crest of the levee; implementation of strict asbestos/dust
control measures during the entire construction operation; and implementation of deed
restrictions. The estimated present worth cost for this remedial action is $2,374,700
with annual O&M of $19,000.
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RECORD OF DECISION
RINO LEVEE OPERABLE UNIT
SOUTH BAY ASBESTOS AREA SUPERFUND SITE
ALVISO DISTRICT, SAN JOSE, CALIFORNIA
September 1988
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TABLE OF CONTENTS
SECTION PAGE
DECLARATION 1
RECORD OF DECISION SUMMARY 5
I. Site Name, Location, and Description 5
II. Site History 7
III. Enforcement Activities 9
IV. Summary of Risks 9
V. ARARs 10
VI. Description of the Alternatives 14
VII. Selected Remedy 22
VIII. Statutory Determinations 2.3
IX. Future Actions 23
X. Schedule 23
Attachments
Administrative Record Index
Responsiveness Summary
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RECORD OF DECISION
Site Name
Alviso Ring Levee
Operable Unit
South Bay Asbestos Area
Site Location
Community of Alviso
San Jose, California
Statement of Basis and Purpose
This document represents the selected remedial action for
this Operable Unit of the South Bay Asbestos Area, in the com-
munity of Alviso, located in San Jose, California. This document
was developed in accordance with the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (CERCLA), as
amended by the Superfund Amendments and Reauthorization Act of
1986 (SARA), and the National Contingency Plan (40 CFR Part 300).
This decision is based on the administrative record for this
site. The attached index (Exhibit 1) identifies the items on
which the selection of the remedial action is based.
Description of Selected Remedy
This Record of Decision addresses the asbestos contamination
present in the Alviso Ring Levee located in the South Bay Asbes-
tos Area. EPA is undertaking an additional Feasibility Study to
evaluate remedial action alternatives for the entire South Bay
Asbestos Area and will select a remedy for the entire site in a
separate Record of Decision.
The ring levee is constructed of asbestos containing rock
and soil. Analysis of soil samples collected from the ring levee
using polarized light microscopy shows the asbestos levels in the
soil to ranging from non-detect to 40%. Because of the limited
precision and accuracy of the PLM analytical method, the soil
concentrations reported are considered qualitative; notwithstand-
ing these limitations, the data confirmed that in some areas of
the levee asbestos concentrations were very high. Asbestos is a
known human carcinogen and has been shown to cause lung cancer
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and mesothelioma, a cancer of the lung lining. If the asbestos
in the ring levee remains uncontrolled, a potential for human ex-
posure to asbestos and a potential increased risk to human health
will continue to exist.
EPA has selected a soil cover as the remedy for the ring
levee contamination. EPA's preferred remedial action alternative
had been a soil/gunite combination cover. Concerns raised by
community members regarding the aesthetics, the possibility of
personal injury to children riding their bikes and skateboards on
the gunite, plus concerns raised by U.S. Fish and Wildlife
regarding the gunite covered portion of the levee limiting
wildlife shelter or habitat along the levee, made EPA re-evaluate
its preferred alternative.
Because of these concerns, EPA has eliminated the gunite
portions and selected a soil cover as the remedy. This remedial
action alternative will control the release of asbestos emissions
and will assure long term protection of human health and the en-
vironment. The present worth cost of the alternative is
$2,374,700 based upon a 4% interest rate, with a 30-year discount
period. This alternative entails:
- stripping and rough grading the existing levee,
- placing a minimum of 12 inches of compacted soil
over the levee
- placing 6 inches of topsoil over the compacted soil,
- planting native vegetation on the levee to control
erosion,
- implementing all necessary environmental mitigation
required under Section 404 of the Clean Water Act for
impacts of the soil cover on wetlands and endangered
species habitat,
- deed restrictions, to prevent the disturbances of the
soil cover and possible release of asbestos fibers,
shall be placed on property on which the ring levee
and soil cover exists.
The cost for environmental mitigation was not included in the
$2,374,700 cost estimate for the alternative, since its nature,
scope, and cost remain to be determined; however, mitigation was
a factor in all of the alternatives considered, and does not af-
fect the relative cost comparisons. The potentially responsible
parties (PRPs) will be responsible for all costs including any
cost associated with wetland mitigation.
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Design for this operable unit will entail the selected
remedy described above plus strict dust control measures to limit
the release of asbestos fibers from the ring levee during the
Remedial Action.
Operation and maintenance activities will be required to en-
sure the effectiveness of the response action. These activities
include periodic maintenance of the vegetation until it becomes
self-maintaining (this is anticipated to take one year), and
semi-annual visual inspections to ensure the integrity of the
soil cover and any necessary repair work of the soil cover. In
the event of a natural disaster (flood or earthquake) necessary
repairs will be made to ensure that the asbestos is contained.
These costs will again be the responsibility of the potentially
responsible parties.
The potentially responsible parties have indicated an inter-
est in pursuing the complete removal of the levee, an option that
EPA did not select due to its high cost, the proportionally
greater potential for asbestos releases during removal operation,
the institutional, regulatory, and technical problems associated
with replacing the levee's flood protection function, and the
difficulties associated with disposing of the removed material.
Complete removal of the levee, assuming it can be accomplished in
a safe manner, would be at least as protective as the selected
soil cover remedy and would be a permanent solution. Should the
PRPs formally propose to implement removal despite its higher
cost and identify acceptable solutions to the problems associated
with it, EPA may amend this ROD to select the removal option.
Input from other government agencies and the community would be
sought before implementing a removal remedy.
Declaration
Consistent with CERCLA as amended by SARA, and the National
Contingency Plan, I have determined that the selected remedy for
the Alviso Ring Levee, Operable Unit of the South Bay Asbestos
Area, meets the remedy selection standards in CERCLA Section 121,
42 U.S.C. Section 9621, by being protective of human health. I
also have determined that the selected remedy meets the ap-
plicable or relevant and appropriate environmental statutes and
regulations, and that it is cost effective. The selected remedy
utilizes permanent solutions to the maximum extent practicable
for this site. Alternative treatment technology of the asbestos
contamination in the Alviso Ring Levee was determined to be im-
practicable based upon effectiveness, technical feasibility, ira-
plementability and cost factors.
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Because this remedy will result in hazardous substances
remaining on site, a review, pursuant to CERCLA Section 121, 42
U.S.C. Section 9621, will be conducted five years after commence-
ment of remedial action to ensure that the remedy continues to
provide adequate protection of human health and the environment.
Daniel W. McGovern Date
Regional Administrator
EPA Region IX
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RECORD OF DECISION
SUMMARY
I. Site Name. Location, and Description
The South Bay Asbestos site is located at the northern end of
the Santa Clara Valley and at the southernmost extent of San
Francisco Bay (Figure 1). The site, which includes the community
of Alviso, is a mix of residential, commercial, light industrial
and agricultural land uses, comprising an area of about 330 acres
(Figure 2). Alviso is the northernmost neighborhood or section
of the City of San Jose. The older section of Alviso, located
west of Gold Street and north of the Guadalupe River, is a desig-
nated National Register Historic District. Approximately 1,700
residents live in Alviso. The town is located in a quiet section
of the Silicon Valley between Highway 237 to the south, rapidly-
growing Santa Clara to the west and south, and expanding "hi-
tech" office development to the east and northeast.
A major aspect of the site is its susceptibility to flood-
ing. Flooding occurs because of the site's proximity to the Bay
and land subsidence due to ground water extraction in the
vicinity. Flood-producing storms occur within the study area
every few years, as evidenced by historical records and newspaper
accounts. Two major streams enter the Bay in the vicinity of the
site, including the Guadalupe River west and south of Alviso and
Coyote Creek to the northeast. These rivers do not provide
natural local drainage since they are surrounded by levees on
both sides to prevent overbank flooding. The Guadalupe River was
channelized in 1963 by the Santa Clara Valley Water District
(SCVWD) to provide for greater flood flow capacity. The streams
are under tidal action and, therefore, discharge to the Bay is
impeded during high tides. Numerous salt evaporation ponds are
present between Alviso and the Bay, further impeding natural
drainage into the Bay.
The development of agriculture in the region was facilitated
by widespread ground water withdrawal from irrigation wells. Be-
tween 1934 and 1967, the ground surface of the Santa Clara Valley
generally subsided four to six feet and in some locations to an
elevation below sea level due to aquifer compaction, sig-
nificantly increasing the potential for flooding. The land sur-
face of most of Alviso has been artificially raised with soil and
debris fill to offset the effects of subsidence.
The community of Alviso is adjacent to wetlands. Over the
last century, most of the tidal flats and marshlands which sur-
round San Francisco Bay have been filled or altered. Near Al-
viso, a fragment of the marshland survives as the New Chicago
Marsh, a National Wildlife Refuge about 300 acres in size. The
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Source: Operating Unit Feasibility Study,
Alviso Area; Project WC85-f92;
Figure 1. Canonie Engineers,
February, 1987.
Project No.
288-ER2
South Bay Asbestos Site
REGIONAL
LOCATION MAP
Camp Dresser & McKee Inc
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AGRICULTURAL LAND
OHEIL TRACT
EXISTING RING LEVEE
South Bay Asbestos Slta
SITE LOCATION MAP
SHOWING RINQ LEVEE
0 300 600
NOTC: BASE MAT ADAPTED FROM CANONIE
REPORT. FEBRUARY. l(l«.
Camp Crasser & McKaa
APPROXIMATE SCALE IN FEET
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Refuge has an active public education program through its En-
vironmental Education Center, located about a mile northeast of
the town and administered by the U.S. Fish and Wildlife Service
(USFWS). The ring levee, although not located in the Refuge
proper, was constructed on portions of the wetland areas and
abuts wetland areas which are adjacent to the Refuge and
hydraulically connected to it.
The wetlands adjacent to Alviso are a significant wildlife
habitat because they provide an interface between fresh and
saltwater environments. The wetlands support several endangered
or threatened species, including the Salt Marsh Harvest Mouse
(Reithrodontomys raviventris), Golden Eagle (Aquila Chrysaetos),
and Peregrine Falcon (Falco Peregrinus). The burrowing owl is a
"protected species of special concern." Small mammals and a
great number of birds and waterfowl species use the wetlands and
surrounding "upland habitats", i.e., land elevated a few feet
above the marsh.
Description of the Levee
The ring levee, which extends around the community of Alviso
on the east, north, and northwest (Figure 2), is approximately
four to twelve feet in height, two miles in length, and has a
trapezoidal shape. The levee has side slopes generally steeper
than 2:1, and covers an area of approximately eight acres. A
narrow, approximately two-foot wide path exists along the crest.
The ring levee immediately adjoins School Street, the homes
on the eastern side of Alviso (the O'Neil Tract), and continues
along Grand Blvd. and Spreckles Ave. The levee is removed from
public streets along the northwest, where it borders the commer-
cial trucking operations along State Street. The steep outboard
or bayward side of the levee abuts wetlands areas along Spreckles
Avenue and along the commercial truckyard operations. At its
western end, the levee borders two private homes. One home owner
has fenced the levee to prevent foot traffic. The levee ter-
minates at the boat launching marina at the northwestern end of
town.
The levee immediately adjacent to streets and homes is used
heavily as a pedestrian walkway. Residents, and particularly
children, have been seen walking and jogging along the berm,
playing on the slopes, picnicking or riding bicycles on or ad-
jacent to the levee. The levee in these areas is barren of
vegetation. In addition, it appears that motor vehicles may also
drive over the levee. Areas removed from public access tend to
be we11-vegetated with grasses and weeds.
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II. Site History
The City of San Jose constructed the ring levee during a
flood in March 1983, which caused the evacuation of the entire
town for sixteen days as flood waters overtopped the Coyote Creek
channels and existing levees. The ring levee was constructed in
an attempt to divert existing and possible future flood waters
from the community. Because of the urgency of the situation, San
Jose did not obtain the necessary permits from the Army Corps of
Engineers (COE) who has jurisdiction over such construction, and
without consultation with other federal and state agencies. San
Jose plans to obtain an "after the fact" permit from COE;
however, it has not as of this date. EPA's remedial action for
the ring levee is not connected in any way with San Jose's or any
other agencies' plans to provide flood control protection for the
community.
History of Site Investigations and Response Actions
In August of 1983, the Santa Clara Valley Water District
(SCVWD) initiated construction of an outfall structure at the
Guadalupe River levee. Excavation occurred on property owned by
the City of San Jose and SCVWD. The activity was observed by a
California Occupational Safety and Health Administration (CAL-
OSHA) inspector. The inspector collected samples of the ex-
cavated material because he suspected the material to be asbestos
waste debris. The samples were analyzed by the Department of
Health Services (DHS) Air and Industrial Hygiene Laboratory and
they confirmed the inspector's suspicions. The samples contained
concentrations of asbestos ranging from 20 to 40% by area. Since
CAl-OSHA's jurisdiction only extends to protection of employees,
they referred the situation to DHS. After confirming the
presence of asbestos in the Guadalupe River levee, DHS ordered
SCVWD to remove all the asbestos contaminated soil. Removal of
the contaminated soil took place between August and December
1983.
In September 1983, DHS collected soil samples from 20 random
locations within the community of Alviso. The sample results in-
dicated that asbestos was randomly distributed throughout the
community of Alviso, including the Alviso Ring Levee. Based on
the soil results, DHS initiated California Hazardous Waste Site
Ranking procedures to include the community on the State Super-
fund list. The Community was listed 10th on the State Superfund
list in December of 1983.
In June of 1984, EPA proposed the site for inclusion on the
National Priority List. The site was approved for the NPL in Oc-
tober 1984, with a score of 44.68.
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In June and September 1985, DHS conducted "worst case"
scenario field experiments at the ring levee to determine if the
asbestos present in the levee could pose a significant health
risk. DHS forwarded the results to EPA which in turn forwarded
the results to the Department of Health and Human Services,
Agency for Toxic Substances Control and Disease Registry (ATSDR).
ATSDR recommended that remedial measures be implemented to
"stabilize those sites to prevent the asbestos from being
suspended in the air where residents may inhale the fibers."
Based on the results generated by DHS' field experiments,
DHS initiated an Operable Unit Feasibility Study (OUFS) to select
a permanent remedy. Meanwhile, EPA agreed to implement interim
remedial measures at the ring levete. EPA sprayed the ring levee
with a polymer dust suppressant to control asbestos dust in May
1986.
DHS' OUFS was completed in April 1986 and recommended a
clean soil cover for the levee. However, later that year, DHS
determined that remedial funds were not available and referred
the ring levee and the remainder of the site to EPA for further
investigation and possible remediation.
EPA initiated a Remedial Investigation/Feasibility Study for
the entire South Bay Asbestos site in 1986. The RI/FS should be
completed in November 1988.
EPA sprayed the ring levee with a dust suppressing polymer
again in 1987. In July 1988, the ring levee was sprayed again,
this time by the City of San Jose.
In April 1988, EPA released the Operable Unit Feasibility
Study (OUFS) on the Alviso ring levee for public comment. The
OUFS, which drew upon the DHS study, identified in greater detail
the two outstanding non-engineering issues confronting the
remedial action: access and easements, and impacts to wetland
and endangered species habitat. EPA data utilized in the OUFS
was collected, analyzed, and reviewed in accordance with approved
EPA Region 9 quality assurance procedures. Data quality limita-
tions inherent in asbestos sampling and analytical methods were
considered in EPA's interpretation and use of the data in the
decision-making process.
Community Relations
All required community relations activities were conducted,
A history of the community relations activities at the South Bay
Asbestos Area, the background on the community involvement and
concerns, and specific comments on the OUFS and EPA's responses
are found in the Responsiveness Summary.
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III. Enforcement Activities
EPA has identified two potentially responsible parties, the
City of San Jose and Raische Company. San Jose constructed the
levee and Raische Company was the supplier of the material, in
July 1987, a general notice letter was sent to San Jose. Subse-
quent negotiations between EPA and San Jose have resulted in a
CERCLA Administrative Agreement (Docket No. 88-15) in which San
Jose agreed to spray the ring levee with a dust suppressant until
a permanent remedy is selected.
In February 1988, EPA sent the Raische Company, the supplier
of the fill material, a general notice letter. Special notice
letters pursuant to CERCLA Section 122, were sent in August 1988.
Negotiations are on-going with both parties for the remedial
design and remedial action for the Ring Levee Operable Unit.
IV. Summary of Risks Posed by the Ring Levee
Asbestos is the contaminant of concern at this site. The
ring levee has been identified as one of the primary sources of
asbestos within the community. Concentrations of asbestos in the
levee range from non-detect to 40% by area using polarized light
microscopy.
Asbestos is a generic term referring to two groups of
naturally-occurring hydrated silicate minerals having a fibrous
crystalline structure. Chrysotile fibers belong to the serpen-
tine group; actinolite, amosite, anthophyllite, crocidolite, and
tremolite belong to the amphibole group. Commingtonite has the
same composition as anthophyllite but belongs to a different
crystal class, has higher specific gravity and contains more
iron. Asbestos fibers are widely used for their high tensile
strength and flexibility and for their noncombustible, noncon-
ducting, and chemical-resistant properties. The fibers have been
used in insulation, brake linings, floor tile, plastics, cement
pipe, paper products, textiles, and building products.
Asbestos is one of the few known human carcinogens and also
causes other lung diseases. Asbestos has been examined in
numerous epidemiological studies. The diseases that have been
identified are asbestosis, lung cancer and mesothelioma. Also
associated with asbestos exposure in some studies are cancers of
the larynx, pharynx, gastrointestinal tract, kidney, and ovary as
well as respiratory diseases such as pneumonia.
Lung cancer is currently responsible for the largest number
of deaths from exposure to asbestos. It has been associated with
exposure to all the principal commercial asbestos fiber types.
Excess lung cancer has been documented in groups involved with
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the mining and milling of asbestos and the manufacture and use of
asbestos products. Studies in which the extent of exposure can
be approximated provide evidence that lung cancer increases
linearly with both level and duration of exposure.
Human studies have also shown that exposures to asbestos
produce mesotheliomas, which are cancers that occur as thick dif-
fuse masses in the serous membranes (mesothelia) that line body
cavities. Mesothelioma occur in the pleura (the membrane that
surrounds the lungs and lines the lung cavity) and the peritoneum
(which surrounds the abdominal cavity). Epidemiology studies
suggest that the incidence of mesothelioma is related to dose and
time from first exposure.
Asbestosis, which involves fibrosis of lung and pleural
tissues, is another serious chronic disease associated with ex-
posure to asbestos. There is no effective treatment for asbes-
tosis and it is often debilitating or fatal. Asbestosis can ap-
pear and progress decades after exposure to asbestos fibers. A
full discussion of the health effects of asbestos is found in the
EPA document Airborne Asbestos Health Assessment Update. June
1986.
Inhalation is the exposure route of concern for the asbestos
present in the ring levee. The asbestos present in the soil must
be rendered airborne and then inhaled to pose a health risk. The
DHS field experiments showed that asbestos could be released into
the air. DHS used mechanical means to simulate wind erosion and
children playing on the ring levee. Such activity-specific sam-
pling in this particular instance could be defined as an "acute
worst case" scenario. The asbestos air concentrations as a
result of the experiment clearly show that asbestos can be
released from the ring levee and therefore, pose a potential
health risk to people at or nearby the activity occurring on the
ring levee.
One limitation of this study is that as an acute worst case,
the study may over-estimate typical chronic exposures from ac-
tivities involving the levee. Nonetheless, because asbestos is a
known human carcinogen with no acceptable known threshold level
for environmental exposure and that the potential for release of
asbestos from the ring levee is high, EPA believes that a poten-
tial significant health risk exists from the levee. Therefore,
remedial action is warranted.
V. Applicable or Relevant and Appropriate Requirements (ARARs)
Under Section 121(d)(l) of CERCLA, 42 U.S.C. Section 9621
(d)(1), remedial actions must attain a degree of clean-up which
assures protection of human health and the environment. Addi-
10
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tionally, remedial actions that leave any hazardous substance,
pollutant, or contaminant on-site must meet, upon completion of
the remedial action, a level or standard of control that at least
attains standards, requirements, limitations, or criteria that
are "applicable or relevant and appropriate" under the cir-
cumstances of the release. These requirements, known as "ARARs"
may be waived in certain instances, as stated in Section
I21(d)(4) of CERCLA, 42 U.S.C. Section 9621(d)(4).
Section 121(d) of CERCLA, 42 U.S.C. Section 9621(d) requires
that the selected remedy complies with Federal and State substan-
tive requirements. A less stringent level or standard of control
may be employed if the remedial action is only part of a total
remedial action (as is the case with the Ring Levee OUFS), that
will attain such level or standard of control when completed.
Additionally, the state requirements can be waived if a State has
not consistently applied or demonstrated the intent to consis-
tently apply a requirement in similar circumstances at other
remedial actions within the state, CERCLA Section 121(d)(4)(E),
42 U.S.C. Section 9621(d)(4)(E). Federal, state or local permits
do not need to be obtained for removal or remedial actions imple-
mented on site, CERCLA Section 121(e), 42 U.S.C. Section 9621(E).
"On-site" is interpreted by EPA to include the aereal extent of
contamination and all suitable areas in reasonable proximity to
the contamination necessary for implementation of the response
action.
The definition of "applicable" and "relevant or appropriate"
requirements from the National Contingency Plan (40 CFR Section
300.6 derived from 1986) ("NCP"). "Applicable" requirements are
those clean-up standards, standards of control and other substan-
tive environmental protection requirements, criteria, or limita-
tions promulgated under federal or state law that specifically
address a hazardous substance, pollutant or contaminant, remedial
action, location, or other circumstances at a CERCLA site.
"Relevant and appropriate" requirements are clean-up standards,
standards of control and other substantive environmental protec-
tion requirements, criteria, or limitations promulgated under
federal or state law that, while not "applicable" to a .hazardous
substance, pollutant, contaminant, remedial action, location, or
other circumstances at a CERCLA site, address problems or situa-
tions sufficiently similar to those encountered at the CERCLA
site that their use is well-suited to the particular site. For
example, requirements may be relevant and appropriate if they
would be "applicable" but for jurisdictional restrictions as-
sociated with the requirement.
The determination of which requirements are "relevant and
appropriate" is somewhat flexible. EPA and the State may look to
the type of remedial actions contemplated, the hazardous sub-
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stances present, the waste characteristics, the physical charac-
teristics of the site, and other appropriate factors. It is
possible for only part of a requirement to be considered relevant
and appropriate. Additionally, only substantive requirements
need be followed (see the preamble to the National Oil and Haz-
ardous Substance Contingency Plan, 40 CFR Part 300, 1985 Federal
Register page 47,946). If no ARAR covers a particular situation,
or if an ARAR is not sufficient to protect human health or the
environment, then non-promulgated standards, criteria, guidance,
and advisories must be used to provide a protective remedy.
There are three types of ARARs. The first type includes
"contaminant specific" requirements. These ARARS set limits on
concentrations of specific hazardous substance, pollutants, and
contaminants in the environment. Examples of this type of ARAR
are ambient water quality criteria and drinking water standards.
A second type of ARAR includes location-specific requirements
which set restrictions on certain types of activities based on
site characteristics. These include restrictions on activities
in wetlands, floodplains, and historic sites. The third type of
ARAR includes action-specific requirements. These are
technology-based restrictions which are triggered by the type of
action under consideration. Examples of action-specific ARARs
are Resource Conservation and Recovery Act (RCRA) regulations for
waste treatment, storage, and disposal.
ARAR Identification Process
ARARs must be identified on a site-specific basis from in-
formation about specific chemicals at the site, specific features
of the site, and actions that are being considered as remedies.
EPA and the State of California reviewed, respectively,
federal and state laws, standards, requirements, criteria, and
limitations for possible application to the Alviso Ring Levee,
Operable Unit. Tables 2-1 and 2-2 in the OUFS contain a listing
of the potential ARARs screened by EPA and the State. These
charts identify each potential ARAR and whether or not it is
"applicable" or "relevant and appropriate."
ARARs identified for the Operable Unit address emission of
asbestos fibers from contaminated soils, inhalation of asbestos
fibers, and disposal of contaminated soils.
Contaminant-Specific ARARs For Asbestos;
1. Toxic Substances Control Act (AHERA1
The AHERA final rules apply to asbestos abatement in schools.
Local education agencies must determine if asbestos is pre-
12
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sent in concentrations greater than one percent using
Polarized Light Microscopy (PLM) and determine what the
appropriate response action will be.
2. Clean Air Act. National Emission Standard for Hazardous Air
Pollutants fNESHAPsI
Asbestos is identified as a hazardous air contaminant.
NESHAPs regulations for inactive asbestos disposal sites
require "no visible emissions" or specified types of con-
tainment cover to eliminate emissions.
3. Bay Area Air Quality Management District Regulations
Similar to NESHAPs, this regulation (Reg. 11, Rule 2) re-
quires "no visible emissions" and provides cover require-
ments and handling procedures for asbestos material.
Location-Specific ARARs;
Physical characteristics of the site influence the type and loca-
tion of remedial responses considered. The location-specific
ARARs relate to fish and wildlife, wetlands, floodplains, and ac-
tivities in navigable waters.
1. The Endangered Species Act of 1973 and regulations at 50 CFR
Sections 17. 402 (Section 7 Consultation) and 424
When a project potentially impacts an endangered species or
critical habitat, the Section 7 Consultation process is
triggered. The formal process requires contact with USFWS
to request a list of endangered species and critical habitat,
preparation of a biological.assessment that evaluates poten-
tial effects of the action, and formal consultation with
USFWS that results in issuance of the USFWS biological
opinion. Generally, under Section 7, activities carried
out by Federal agencies should not jeopardize the continued
existence of an endangered species or cause adverse modifi-
cations of critical habitat.
2. Clean Water Act. Section 404 (33 U.S.C. Section 1344) as
regulated by the COE. and Executive Orders 11988. 11990.
Protection of Wetlands and Floodplains
The fundamental precept of the 404(b)(l) Guidelines (40 CFR
230 et. seq.) is that dredged or fill material should not
be discharged into aquatic ecosystems (in this case wetlands)
unnecessarily. The 404(b)(l) Guidelines require no discharge
of dredged or fill material if 1) a practicable alternative
exists that would have less or no adverse impact on the
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wetland; 2) the continued existence of an endangered species
is jeopardized; 3) it causes or contributes to significant
degradation to the wetland; or, 4) appropriate steps to
minimize adverse impacts are not taken.
3. USFWS Mitigation Policy (FR 7644-7663. Vol. 46. No. 15.
January 1981)
This is triggered in accordance with the Fish and Wildlife
Act of 1956, Fish and Wildlife Coordination Act, Watershed
Protection and Flood Prevention Act, and National Environ-
mental Policy Act. The mitigation policy defines four
resource categories and establishes mitigation goals and
guidelines for each. USFWS has determined that
the wetlands near Alviso would probably fall within Resource
Category 2 for which the mitigation goal is no net loss of
in-kind habitat value. Guidelines to achieve the goal in-
clude avoiding or minimizing habitat loss, immediate recti-
fication or reduction of habitat loss, or replacement of
in-kind habitat.
Action Specific ARARS;
1. Occupational Safety and Health Administration (OSHA1
OSHA has set a permissible exposure limit (PEL) for all
asbestos fibers at 0.2 fiber per cc for occupational
exposed workers. The action level is 0.1 fiber per cc.
VI. Description of the Alternatives
Alternatives Evaluation
EPA evaluated potential remedial action alternatives for the
ring levee primarily by progressing through the series of
analyses which are outlined in the National Contingency Plan
(NCP), in particular, 40 CFR Section 300.68, the Interim
Guidance on Superfund Selection of Remedy, December 24, 1986 OS-
WER Directive No. 9355.0-19). This process, in part, enables EPA
to address the CERCLA Section 121 requirements of selecting a
remedial action that is protective of human health and the en-
vironment, that is cost-effective, that attains Federal and State
health and environmental requirements that are applicable or
relevant and appropriate, and that utilizes permanent solutions
and alternative treatment technologies or resource recovery tech-
nologies to the maximum extent practicable. Additionally, CERCLA
Section 121(B)(1) requires that EPA assess and give preference to
permanent solutions and alternative treatment technologies or
resource recovery technologies that, in whole or in part, will
result in a permanent and significant decrease in the toxicity,
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mobility, or volume of the hazardous substance, pollutant, or
contaminant. As part of! this process, EPA evaluated permanent
solutions to the problems associated with the asbestos present in
the ring levee.
Based upon site characteristics, EPA was able to scope, from
the universe of all possible response actions, a set of response
actions and associated technologies to be considered for the Al-
viso ring levee. An example of this scoping was the elimination
of biological treatment from further consideration because
biological processes capable of detoxicifying asbestos con-
taminated soil do not exist. Section 2.4 of the OUFS discusses
the scoping process in more detail and Section 2.6.1 summarizes
the results.
The next step of the selection of remedy process is assem-
bling the remaining technologies and/or disposal options into
remedial action alternatives. Pursuant to OSWER Directive No.
9355.0-19, "Interim Guidance on Superfund Selection of Remedy,"
remedial action alternatives are to be developed ranging from
those that would eliminate the need for long-term management
(including monitoring) at the site to alternatives involving
treatment that would reduce mobility, toxicity or volume as their
principal element. In addition, containment options involving
little or no treatment and a no action alternative are to be
developed. Remedial action alternatives developed in the
Operable Unit for the Interim Alviso Ring Levee were:
1. No Action
2. Soil Cover
3. Gunite Cover
4. Asphalt Cover
5. Chemical Soil Suppressant
6. Off-Site RCRA Landfill
7. Fixation
8. Vitrification
9. Plasma Fusion
Alternatives 2 through 4 are containment alternatives. Al-
ternatives 2 through 5 require long-term management and monitor-
ing. Alternative 6, permanent disposal of contaminated soil,
would eliminate the need for long-term management, including
monitoring. Alternatives 7, 8, and 9 involve treatment as their
principal element. Finally, no action was included as Alterna-
tive 1.
Initial screening, which is the next step in the selection
of remedy process, narrows the list of potential remedial action
alternatives. Consistent with Section 300.68(g) of the NCP and
the OSWER Directives No. 9355.0-19, the remedial action alterna-
15
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tives developed for the ring levee were initially screened using
the criteria of cost, implementability (acceptable engineering
practices), and effectiveness. Table 3-1 and 3-2 in the OUFS
summarize the initial screening process. Alternatives 1, 2, and
3 passed the initial screening and were carried forward for
detailed analysis while Alternatives 4, 5, 6, 7, 8, and 9 were
screened out primarily for the reasons set forth below.
The Asphalt Cover, Alternative 4, was no longer evaluated
because of the difficulty associated with implementation and the
potential for oil leaching and contamination of the wetlands.
The effectiveness of the Chemical Soil Suppressant, Alternative
5, is unknown. Because the chemical soil suppressant must be
re-applied at least once every year and the present worth of this
alternative is the second highest, and twice as high as the con-
tainment alternatives, this alternative was eliminated. Alterna-
tive 6, the Off-Site Landfill Alternative has also been screened
out because capital costs are three to seven times more than the
containment and cover alternatives (See Table 3-1 in the OUFS for
cost comparison summary). Alternatives 7, 8, and 9 potentially
fix or immobilize the asbestos within the soil. Weathering and
traffic on the levee could free up fibers and significantly
reduce the effective life of Alternative 7; therefore, fixation
was eliminated from further analysis. Vitrification and plasma
fusion have high costs and are difficult to implement. These
high costs are reflective of the innovative processes involved.
High ground water levels at the site further reduce the effec-
tiveness of vitrification and limited expertise in the operation
of a plasma fusion system further increases the difficulty in the
implementation of the Plasma Fusion Alternative. Therefore, both
vitrification and plasma fusion have been eliminated from further
analysis.
The following is a description of the remedial action alter-
natives surviving the initial screening:
1. No Action Alternative
The No Action Alternative assumes that no remedial action
would be taken to mitigate or eliminate asbestos emissions from
the ring levee. Asbestos-containing levee soils would remain in
their present state. The only actions which would be taken under
this alternative would be posting warning signs, installation of
barriers to prevent access across the levee, and periodic air
quality monitoring. Signs would be placed to warn of the poten-
tial danger from human contact. Signs were placed along the
levee by EPA when the hazard was first identified, but these
signs have since been destroyed. A fence or suitable barrier
would be placed between the levee and the community to prevent
vehicle traffic on the levee. Air quality monitoring would in-
clude installation of four permanent air monitoring stations both
up and downwind of the levee to characterize contaminant migra-
tion and assess the ongoing risk to human health and the environ-
ment.
16
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2. Soil Cover
The Soil Cover Alternative involves stripping and rough
grading the existing levee, placing a minimum of 12 inches of
compacted soil over the levee, placing 6 inches of topsoil over
the compacted soil, and revegetating the levee and side slopes.
This cover thickness provides a significant root zone layer. Na-
tive vegetation will be selected for the levee that provides ero-
sion protection and affords escape cover for the Salt Marsh Har-
vest Mouse. Temporary irrigation will be required to establish
the vegetation. Irrigation options include using city water, a
water truck, or pumping brackish water from the wetlands. A
vehicle barrier (i.e., posts, barricades, riprap) will be incor-
porated into the final design to prevent access to the wetlands,
and existing vehicle access routes to the wetlands will be
fenced.
The best suited soil type for the 12 inch compacted soil
layer on the levee is a clayey sand which is mid-range between a
clay and a gravel. This soil type also allows a solid root zone
to establish.
3. Gunite Cover
Gunite is a sprayed concrete mix that provides a hard, vir-
tually impermeable textured surface when cured. The Gunite Cover
Alternative involves stripping and rough grading the existing
levee, placing a galvanized mesh or geogrid, and spraying gunite
to a thickness of 2 inches on top and 1 1/2 inches on the sides.
The thickness would vary on the side slopes, but should be no
less than 1 1/2 inches. As for the soil cover, vehicle access
barriers would also be required, such as a low fence constructed
of lengths of telephone poles connected by heavy chain, to keep
vehicles away from the levee.
4. Soil/Gunite Cover
It was determined that proper implementation of the Soil
Cover would encroach onto private property, wetlands, and street
right-of-ways. This alternative would require obtaining several
permanent easements and it is felt that this process would be
long in duration and involve several parties. Implementation of
the Gunite Cover Alternative, on the other hand, would require
mostly temporary construction easements but is likely to be less
favorable than the Soil Cover Alternative in visible areas and
wetland areas. The Soil/Gunite Cover Alternative was, therefore,
developed, utilizing soil cover in high-visibility areas and
gunite cover in areas with limited work space.
Consistent with Section 300.68(h) of the NCP, 40 CFR Section
300.68(h), the OSWER Directive No. 9355.0-19, and the OSWER
Directive No. 9355.0-21, the remedial action alternatives remain-
ing after initial screening were further refined and then sub-
jected to detailed analysis. Detailed analysis of each remedial
17
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action alternative entailed evaluation based on several criteria.
EPA identified appropriate and more specific "component measures"
derived from requirements and criteria contained in Section
300.68(h)(2) of the NCP, 40 CFR Section 300.68(h)(2), CERCLA Sec-
tions 121(b)(l)(A - G), 42 U.S.C. Section 9621(b)(l)(A - G),
CERCLA Section 121(c), 42 U.S.C. Section 9621(c), the discussion
on detailed analysis contained in the OSWER Directive No.
9355.0-19 and the OSWER Directive No. 9355.0-21. These are the
nine component criteria:
1. Protection of human health and the environment
2. Compliance with ARARs
3. Reduction of mobility, toxicity or volume
4. Implementability
5. Short-term effectiveness
6. Long-term effectiveness
7. Cost
8. Community acceptance
9. State and local agency acceptance
The following is a discussion comparing each alternative
based on the nine criteria.
1. Protection of Human Health and the Environment
The No Action Alternative would not protect public health be-
cause sufficient remedial action to control the release of as-
betos fiberts into the environment would not take place.
A cover such as alternatives 2, 3, and 4 could control the
release of asbestos fibers into the environment. The theory is
to provide a physical barrier between the contaminant and the
potential receptors. A soil cover, Alternative 2, would provide
immediate and long-term protection of public and the environment
with adequate maintenance, as would the soil/gunite and gunite
covers.
2. Compliance with ARARS
The No Action Alternative would not violate any of the iden-
tified ARARs, although the potential risk to human health and the
environment would remain. If a remedial action is implemented,
EPA will be required by 33 U.S.C. Section 1344 to take ap-
propriate steps to minimize adverse impacts to adjacent wetlands.
EPA has identified that the soil cover (#2) as opposed to the
soil/gunite or gunite cover to be most appropriate. EPA can
plant native vegetation on the soil cover to replace lost cover
for the wetland wildlife in addition to implementing other types
of mitigation to minimize the impact of the Operable Unit
Remedial Action.
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3. Reduction of Mobility, Toxicity or Volume
The No Action Alternative would not reduce mobility,
toxicity, or volume. Alternatives 12, #3, and #4 would reduce
the mobility of asbestos fiber into the ambient air; however, the
Alternatives would not reduce the toxicity or volume of the as-
bestos fibers in the ring levee. At this point in time, no reli-
able treatment technology exists to reduce asbestos mobility,
toxicity, or volume.
4. Implementability
One consideration of implementability is access to the site.
For Alternatives 2, 3, and 4, three different types of land ac-
cess or easements will be required. The first type is a tem-
porary construction easement which allows access across or along
a parcel or property to enter the construction site. The second
type of easement is a permanent easement which is a purchase
agreement allowing a structure or object, in this case the
remediated levee, to occupy an owned parcel of land. A permanent
easement is not a land purchase but rather a one-time payment to
occupy the land area. When property is transferred from one
owner to another, the permanent easement accompanies the sale or
transaction. The third and final type of easement required is a
maintenance or "right-to-access" easement which is a one-time
purchase that allows access across a property (not necessarily
the one in which the permanent easement is on) to maintain a
structure or object on a permanent easement. Maintenance ease-
ments may stipulate that the disturbed lands area be restored to
preconstruction or pre-remediation condition upon completion of
the maintenance each and every time maintenance is performed or
that a designated access route would be constructed and left in
place for future maintenance.
The property which is covered by or adjacent to the present
ring levee is owned by approximately 29 different private and
commercial landowners or agencies. These landowners and es-
timates of easement costs are found in Appendix F of the OUFS.
EPA has assumed that no easements would be purchased from the
City of San Jose or from Santa Clara County. Costs for ease-
ments, including title searchs and site surveys, have been in-
cluded in the overall cost estimate for each of the alternatives.
Actual levee quantity calculation which show the amount of land
affected are shown in Appendix E of the OUFS.
Soil Cover
Implementation of the Soil Cover Alternative utilizes con-
ventional construction equipment and readily available materials.
Difficulties are likely to be encountered in areas where there is
limited access, and where side slopes are steep. Most of the ex-
isting levee borders private property and sometimes straddles
property lines. In some areas, the levee is encroaching on
street rights-of-way and protected wetlands. Construction of the
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Soil Cover alternative would require an estimated 2.1 acres for
permanent and maintenance easements, resulting in 1.5 acres of
additional wetlands intrusion. The temporary construction ease-
ments would require six to eight construction access routes, most
through private property. The work should be able to be per-
formed without closing any streets; traffic may be restricted to
one lane in some areas, particularly along School Street and
Spreckles Avenue.
Gunite Cover
The most attractive feature of the Gunite Cover Alternative
is its ability to be sprayed onto the levee, thereby reducing the
number of required easements and access routes. This alternative
would also generate less dust than the Soil Cover Alternative be-
cause there is less earthwork involved.
The Gunite Cover Alternative is particularly suited for
those areas along the levee where the levee encroaches on street
right-of-way, wetlands, and private property because it would be
easy to apply with a minimal increase in volume. This alterna-
tive would require an estimated 1.0 acre for permanent and main-
tenance easements, resulting in 0.4 acres of additional wetlands
intrusion. Several construction easements would still be re-
quired. Maintenance of this alternative would consist of yearly
inspections and grouting of cracks resulting from foot and
bicycle traffic, differential settlement, and seismic activity.
Soil/Gunite
This alternative was developed in part because of the dif-
ficulties involved in implementing the Soil Cover alternative due
to limited access and permanent easements required.
A soil cover would be placed in wetlands areas to provide
wildlife habitat and meet the community's aesthetic requirements.
Gunite would be placed where slopes are very steep and where the
cover encroaches onto roadways, such as parallel to Grand Avenue.
The two methods would be tied together in final design to prevent
loss of cover integrity at the juncture.
Temporary easements would be required to implement this al-
ternative. Several permanent easements would also be needed.
approximately six to eight construction access routes, mostly
through private property, would be required. The work should be
able to be performed with minimal traffic disturbances (i.e.,
possibly closing one lane on two land streets, particularly
School Street and Spreckles Road). This alternative would re-
quire an estimated 1.4 acres of additional wetlands intrusion.
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5. & 6. Short-term and Long-term Effectiveness
The No Action Alternative would not be effective in protect-
ing the public health since no remedial actions would take place.
Alternatives 2, 3, and 4 all provide a physical barrier between
the contaminant and potential receptors. In general, the thicker
the barrier, the less likely the chance asbestos will be released
into the air. All alternatives have equal effectiveness in the
short-term. Factors that could affect the long-term effective-
ness and performance are 1) considerable seismic activity, 2)
high-flood waters, 3) lack of maintenance, and 4) erosion. The
Gunite Cover would withstand these four factors the best with the
Soil/Gunite Cover next and the Soil Cover last. However, with
proper operation/maintenance, barring natural disasters (flooding
and earthquakes), the alternatives are estimated to be almost
equally effective in controlling asbestos emissions from the ring
levee.
7. Cost Analysis
The No Action Alternative is estimated to be the least
costly alternative. The Gunite Cover, Soil/Gunite Cover combina-
tion, and Soil Cover alternatives are estimated to be comparable
in cost. Complete removal and disposal of the levee is shown,
since it is still under consideration by the PRPs. A more
detailed breakdown and analysis of the estimated costs can be
found in Appendices D and G of the OUFS.
No Action $1,394,200
Soil Cover $2,374,700
Gunite Cover $2,383,900
Soil/Gunite Cover $2,411,500
Off-site Disposal $7,969,900
8. Community Acceptance
The community is not in favor of Alternatives 1, 3, and 4 as
documented in the SBAA Operable Unit Responsiveness Summary
(attached). The community prefers Alternative #2 and they want
it implemented as soon as possible.
9. State and Local Agency Acceptance
There has been no state or local agency that has exhibited a
preference for the No Action Alternative. The State of Califor-
nia Department of Health Services initially recommended a soil
cover and their position has not changed. Other agencies have
called for implementation of an alternative that controls the
release of asbestos emissions. Out of the four alternatives,
preference by other agencies has been for the soil cover as docu-
mented in the SBAA Operable Unit Responsiveness Survey
(attached).
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VII. Selected Remedy
This Record of Decision addresses the asbestos contamination
present in the Alviso Ring Levee, Operable Unit of the South Bay
Asbestos Area. EPA is undertaking an additional feasibility
study to evaluate remedial action alternatives for the entire
South Bay Asbestos Area and will complete a Record of Decision
for the remedies selected. Prior to receiving public comment,
EPA's preferred remedial action for the Ring Levee Operable Unit
was Alternative #4, the Soil/Gunite cover. This alternative,
however, was eliminated after concerns raised by the community
regarding public safety and aesthetic appearance of the levee,
and by USFWS regarding the gunite portion of the levee not
providing cover for the Salt March Harvest Mouse, an endangered
species living in the adjacent wetlands. EPA has, therefore,
selected Alternative #2, the Soil Cover, as the appropriate
remedy.
The Soil Cover consists of placing a minimum of 12 inches of
compacted soil over the levee, and then placing 6 inches of top-
soil over the compacted soil. A three foot wide path would be
placed on top of the levee. The side slopes of the levee would
be altered to have a 2:1 slope and then re-vegetated with native
plants. These two measures should control erosion of the cover.
The vegetated wetland side of the levee would provide cover for
the endangered wildlife. Strict asbestos/dust control measures
would be implemented during the entire construction operation.
Access and easements will be obtained for 6-8 construction access
routes. Operation and maintenance activities will be required to
ensure the effectiveness of the soil cover. These activities in-
clude site inspections and possible repairs to the cover. Also
included as an operation and maintenance activity is a review of
the remedial action selected which, pursuant to CERCLA Section
121(c), 42 U.S.C. Section 9621(c), must be conducted every five
years when a remedial action is selected that results in any haz-
ardous material being left on site.
The estimated cost for the Soil Cover is $1,850,400. This
estimate is based on 7,600 cubic yards of imported fill for
reshaping the levee before constructing the soil cover to obtain
2:1 side slopes. Yearly maintenance is estimated to be $19,000
and the five year remedial action review is estimated to be
$10,000. Present worth cost, based on design life of 30 years
and an inflation rate of 4% and a rate of return of 4%, is es-
timated to be $2,374,700.
22
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VIII. Statutory Determinations
Protectiveness
The Soil Cover would be protective of public health by
creating a barrier over the asbestos contaminated soil which will
control the release of the asbestos fibers. Proper operation and
maintenance practices should ensure the integrity of the asbestos
fibers.
Compliance With Other Regulations
Several ARARs define asbestos as a hazardous material. In
addition, EPA must comply with OSHA Worker Exposure Standards
during the implementation of the remedy. Finally, there are
site-specific ARARs which will require EPA to solicit input on
the remedial action from USFWS, to ensure that the remedial ac-
tion selected is a practicable alternative which minimizes the
impact to the wetlands, and finally to implement any mitigation
required for the loss of wetlands and endangered species habitat
for the remedial action.
EPA has solicited the input of its in-house wetlands section
and USFWS during the development of the OUFS. Their comments and
concerns are reflected in the OUFS Administrative Record. EPA
will assure implementation of mitigation required by the ARARs,
whether the clean-up is performed by EPA or the PRPs. If imple-
mented by EPA, any cost incurred will still ultimately be the
responsibility of the potentially responsible parties. Con-
templated means of mitigating levee remedy impacts to wetlands
include acquisition of lands similar to those impacted, and im-
proving their aquatic values through restoration or enhancement
techniques. All mitigation would be undertaken in consultation
with federal and state resource agencies.
Cost Effectiveness
The Soil Cover is a cost-effective remedial action alterna-
tive which effectively minimizes threats to and provides adequate
protection of public health and the environment. Although Alter-
natives 3 and 4 are equally protective, they do not satisfy the
concerns raised by the community and USFWS.
Utilization of Permanent Solutions and Alternative Treatment
Technologies or Resource Recovery Technologies to the Maximum Ex-
tent Practicable
At this point in time, there is no known permanent alterna-
tive treatment or resource technology which would control the
release of asbestos from the soil in the Alviso Ring Levee.
Fixation, plasma fusion and verification were alternatives iden-
tified but eliminated from further consideration due to dif-
ficulties associated with implementation, uncertain long-term ef-
fectiveness and very high cost. The selected remedy is effective
23
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fectiveness and very high cost. The selected remedy is effective
at controlling the release of asbestos from the soils in the Al-
viso Ring Levee with proper long-term maintenance and is rela-
tively easy to implement at a reasonable cost. The soil cover
once vegetated can also provide cover for the Salt Marsh Harvest
Mouse and can be constructed to blend in with the surrounding
community thereby satisfying concerns raised by U.S. Fish &
Wildlife Service and the Alviso community.
The selected remedy will address the asbestos contamination
at the Alviso ring levee. However, the selected remedy does not
satisfy the statutory preference for treatment as a principal
element. At this point in time there is no proven treatment
technology which will reduce the mobility, toxicity, and volume
of asbestos. Nonetheless, EPA considered several treatment tech-
nologies in the technology scoping and screening phase and in the
initial alternative screen stage. However, no technology was
found which would result in a permanent and significant decrease
in the toxicity, mobility, and volume of asbestos.
IX. Future Actions
1) Design remedial action
2) Enter into a State Superfund Contract with the State of
California
3) Obtain access and easements
4) Construct soil cover
5) Conduct operation and maintenance activities and the five
year remedial action review required by CERCLA Section
121(C)> 42 U.S.C. 9621(c)
X. Schedule
Dates for completing key milestones leading to remedial ac-
tion at the Alviso ring levee are highlighted below:
1) Complete design by September 30, 1989,
2) Finalize State Superfund Contract by September 30, 1989,
3) Initiate remedial action no later than the second quarter
fiscal year 1990.
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SOUTH BAY ASBESTOS AREA SUPERFUND SITE
Administrative Record File Index
(Indexed by Document Number)
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RESPONSIVENESS SUMMARY
FOR THE
INTERIM RING LEVEE OPERABLE UNIT FEASIBILITY STUDY
SOUTH BAY ASBESTOS AREA SUPERFUND SITE
ALVEO DISTRICT, SAN JOSE, CALIFORNIA
United States Environmental Protection Agency
Tons and Waste Management Division
Region DC
October 1988
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SOUTH BAY ASBESTOS RESPONSIVENESS SUMMARY
FOR THE
INTERIM RING LEVEE OPERABLE UNIT FEASIBILITY STUDY
SUMMARY OF MAJOR COMMENTS AND RESPONSES
INTRODUCTION
From April 12, 1988 through May 11, 1988, the U.S. Environmental Protection
Agency (EPA) held a public comment period on EPA's draft Operable Unit
Feasibility Study (OUFS) for the ring levee at the South Bay Asbestos
Superfund site in Alviso, California. The Feasibility Study evaluates four
alternatives for addressing asbestos contamination in the ring levee.
Asbestos is a hazardous substance under the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §9601 et.seq.
The purpose of the public comment period was to give interested parties the
opportunity to comment on the OUFS. At the community meeting held in Alviso
on April 28, 1988, EPA announced that a fifth clean-up alternative, which came
into consideration following the release of the OUFS, also was being
considered. To ensure that all interested parties would have a chance to
comment on the four alternatives initially evaluated, as well as on the new
fifth alternative, the public comment period was extended for two weeks from
May 11, 1988 through May 25, 1988.
In the summer of 1987, EPA was planning to construct a permanent ring levee
cover. EPA decided to conduct a more in-depth study on alternatives for
addressing the ring levee contamination that would take into account wetlands
preservation and cost estimates for levee access. The OUFS is the culmination'
of these efforts.
The purpose of the OUFS is to separate and accelerate the remediation process
for the ring levee, since the levee contains asbestos and is in close
proximity to the community. The various alternatives under consideration were
evaluated on the basis of the following criteria: overall protection of human
health and the environment; reduction of toxicity, mobility, and volume of
contamination; short-term and long-term effectiveness; implementability; cost;
community acceptance; State acceptance; and compliance with State and Federal
regulations. Remedial alternatives for the entire site are examined in the
site Feasibility Study Report, which will be issued later in 1988.
A Responsiveness Summary is required under 40 Code of Federal Regulation (CFR)
Section 300.67(e) for the purpose of providing both EPA and the interested
public with a review and summary of community concerns about the site and
comments received by EPA on the OUFS. In addition to summarizing citizen
concerns and questions, the Responsiveness Summary presents EPA's responses to
those concerns.
The Responsiveness Summary for the OUFS conducted at the South Bay Asbestos
site is divided into three sections:
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I. Background on Community Involvement and Concerns. This section
provides a brief history of community interest in and concerns about
the South Bay Asbestos site.
II. Overview of the Ring Levee OUFS. This section provides a brief
history of the ring levee, summarizes the contents of the draft
OUFS, and identifies EPA's preferred alternative.
III. Summary of Continents Received and EPA Responses. This section
categorizes and summarizes written and oral comments received during
the public comment period and provides EPA's responses to these
comments.
Appendix A contains an index and a copy of the question and answer period
pages from the public hearing transcript and a copy of all written comments
received by EPA during the OUFS public comment period.
I. BACKGROUND ON COMMUNITY INVOLVEMENT AND CONCERNS
In 1983, State health officials gave the Alviso community its first
information about the asbestos contamination problem. Although Department of
Health Services (DHS) representatives released information about the possible
health effects posed by the site, and the problem received significant media
attention, the community in Alviso did not express concern about exposure to
asbestos at that time.
In January 1984, DHS held a public meeting in Alviso about the asbestos
contamination problem. The topics discussed were the history and current
status of the asbestos problem in Alviso, health effects of exposure to
asbestos, and future plans to investigate the contamination. One of the
results of the meeting was the establishment of a Community Advisory Committee
comprised of concerned residents from Alviso and representatives from DHS and
the Santa Clara County Health Department.
The purpose of the Community Advisory Committee was to provide a useful forum
to improve communication between the agencies and the community and to provide
information about precautions the community should take to minimize exposure
to asbestos. The group met during 1984 and 1985, when DHS was conducting
soil sampling and air monitoring throughout the area.
In the fall of 1985, community attention on asbestos contamination peaked
again when EPA took emergency action and paved two areas in Alviso to control
the release of asbestos. A portion of the community expressed the concern
that EPA was acting in conjunction with San Jose city officials and
influential leaders to condemn the town and relocate residents so that Silicon
Valley development might spread into Alviso.
EPA community relations staff visited a broad spectrum of Alviso community
members in November and December 1985 to explain EPA's practice of considering
a range of alternatives in response to a release of hazardous substances. EPA
staff emphasized that the Superfund investigation would help define the
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seriousness of the public health threat posed by the presence of asbestos,
and that the community would have the opportunity to be involved in the
decision about the best clean-up alternative to mitigate the asbestos problem.
Based on meetings with community leaders, EPA held a community meeting in
December 1985 to address the residents' concern that EPA intended to condemn
Alviso as a result of the Superfund Remedial Investigation/Feasibility Study
(RI/FS). Following the community meeting held in December 1985, the Community
Advisory Committee expanded to include EPA and continued to meet (although
somewhat infrequently) to the present date.
Community concerns related to asbestos contamination found in Alviso are
influenced by the area's history, economic status, and social fabric. The
major concerns of the community, as identified in the November 1986 Community
Relations Plan and at community meetings, are as follows:
Possible relocation of Alviso residents. Residents are aware of the
strategic location of Alviso in relation to Silicon Valley. The power
and influence of outside interests (e.g., city planners and officials,
private developers, and real estate investors) are feared by many
residents because they feel they will not be included in the benefits of
high-technology development. Some residents contend that EPA and local
and State governments are part of a conspiracy to deflate land values or
to condemn properties so that Alviso property can be acquired by
development interests at low prices.
Severity of threat actually posed bv asbestos. Many residents in Alviso
feel that asbestos is a widely found substance and question why Alviso
has been "singled out" for investigation. A widely held belief in the
community is that Alviso is receiving attention not because of a
potential health hazard, but because asbestos contamination can be used
as a justification to condemn the land, relocate residents, and develop
the area with high-technology industries.
Dust raised bv traffic through town. Residents are concerned about the
amount of dust raised by trucks, and the potential human health effects
associated with exposure, as well as the fact that the dust might contain
asbestos. Others suggest that the trucks might be hauling asbestos-rock
or other asbestos-containing material that may contribute to the airborne
asbestos problem.
Length of time investigations take. Referring to sampling activities
performed by DHS, the Bay Area Air Quality Management District, and EPA,
several residents criticized the government for over-studying the problem
and spending too much taxpayer money.
Decrease in property values. Many residents are concerned that property
values have decreased due to the asbestos problem. Others are concerned
about the "unsightly" appearance of the ring levee. If EPA seals
asbestos on private property, residents are worried that they will be
held liable for asbestos that becomes airborne if the -seal is broken.
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Local media have presented limited coverage on asbestos contamination in the
Alviso area. The coverage has focused primarily on two events. The first
event occurred in 1983 when DHS initially informed the Alviso community about
the asbestos contamination problem and the possible health effects. The
second event occurred in the fall of 1985 when EPA took emergency action and
paved two areas in Alviso -- the school yard at George Mayne School, and
Spreckles Avenue --to control asbestos dust. The community reacted strongly
to an article in the San Jose Mercury News that suggested that area residents
might be relocated. Media coverage has been relatively infrequent since this
event.
The following is a summary of community relations activities conducted at the
South Bay Asbestos Superfund site since 1985:
October 1985
November/
December 1985
December 1985
December 12, 1985
December 1985/
January 1986
Hay 1986
June 12, 1986
EPA distributed a fact sheet informing the community
about EPA's Emergency Response Actions -- the paving
of George Mayne School, and Spreckles Avenue.
EPA CR representatives visited community members to
explain EPA's practice of considering a range of
alternatives in response to a release of hazardous
substances. EPA's Emergency Response Actions also
were discussed at this time.
EPA distributed a fact sheet to explain the short-
and long-term options EPA can use at a Superfund site
for emergency or remedial response actions. The fact
sheet also explained the Superfund process for
remedial actions.
EPA held a community meeting to explain the recent
actions taken by EPA to investigate and control
asbestos contamination in Alviso.
EPA CR representatives conducted community assessment
interviews to improve EPA's understanding of
community concerns. These interviews provided the
basis for the South Bay Asbestos Community Relations
Plan.
EPA prepared and presented information to school
assemblies on the potential dangers associated with
using the ring levee for recreational purposes.
EPA held a community meeting to evaluate alternatives
for controlling asbestos in three areas of Alviso:
the ring levee, the truck yards, and local streets.
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June 1986
November 1986
March 1987
March 1987
June 1987
March 1988
April 1988
April 28, 1988
EPA distributed a fact sheet providing information to
the public on the Alviso soil sampling results.
EPA completed the final Community Relations Plan.
EPA distributed a fact sheet announcing the beginning
of the Remedial Investigation at the site.
EPA held a Community Advisory Committee Meeting (that
included all interested community members) to discuss
plans for the Remedial Investigation/Feasibility
Study.
EPA distributed a notice announcing that the ring
levee would be sprayed with polymer to prevent dust
migration.
EPA distributed letters to individual property owners
informing them of the December 1985 soil sampling
results.
EPA distributed a fact sheet summarizing the draft
Ring Levee Operable Unit Feasibility Study (OUFS).
EPA held a community meeting to discuss the draft
OUFS and EPA's proposed clean-up solution, and to
accept public comments on the selection of a remedy.
II.
OVERVIEW OF RING LEVEE OUFS
During a major flood in March 1983, the City of San Jose constructed a flood
control ring levee around most of the community of Alviso. The levee was
built to try to divert flood waters away from Alviso. Through soil sampling
and analysis, EPA has found that much of the ring levee is contaminated with
asbestos-containing rock and soil.
EPA is conducting a Remedial Investigation/Feasibility Study (RI/FS) to
determine the nature and extent of contamination from hazardous substances,
the extent to which contamination may pose a threat to human health and the
environment, and to determine the necessity for and the effectiveness of the
proposed remedial action. Field investigations, performed during 1987 and
1988, will also be summarized in the upcoming RI/FS.
Preliminary data from the RI/FS, indicating that the ring levee contained
asbestos, prompted EPA to separate and accelerate the remediation process for
the levee and prepare a ring levee OUFS.
As an emergency response action, the ring levee was sprayed with a chemical
polymer to control asbestos dust in May 1986 and July 1987. The City of San
Jose (San Jose) took over responsibility for the polymer spraying in CERCLA
Consent Order 88-15. San Jose sprayed the levee with the polymer in 1988. In
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order to provide a permanent remedy for control of asbestos dust from the
ring levee prior to completion of the larger site remediation for the South
Bay Asbestos site, EPA determined, in accordance with 40 CFR §300.68(c), that
an OUFS should be conducted to address remediation for the ring levee only.
The OUFS for the South Bay Asbestos site evaluates potential remedial action
technologies for the flood control ring levee. Alternatives were identified
and evaluated through the series of analyses outlined in the National
Contingency Plan (NCP) (40 CFR §300, et.seq.). Section 121 of the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), 42 U.S.C. §9621, requires EPA to select a remedy that is protective
of human health and the environment, that is cost-effective, that attains
Federal and state requirements, and that utilizes permanent solutions and
alternative treatment technologies or resource recovery technologies to the
maximum extent practicable. Additionally, EPA is required to give preference
to treatment remedies that permanently and significantly reduce the mobility,
toxicity, or volume of hazardous substances as their principal element.
Finally, EPA must consider state and community acceptance, the short-term and
long-term effectiveness, and the implementability of the chosen remedy prior
to implementation.
A wide range of clean-up alternatives were initially studied to address the
asbestos contamination problem in the ring levee. They fell into three
general categories: no action, containment, and treatment. The no action
alternative would result in no remedial action taking place at the site. The
containment alternatives would use a.physical barrier to control the release
of asbestos fibers. The treatment alternatives would involve treating the
asbestos-contaminated soil to render the asbestos either immobile or non-
hazardous .
In addition to the four alternatives discussed in the OUFS, a fifth
alternative was considered in negotiations with one of the potentially
responsible parties. This alternative involves removing the existing levee
and possibly replacing it with a similar structure not containing asbestos.
EPA's preferred alternative was, as announced in the "proposed plan" fact
sheet released for public comment along with the OUFS on April 12, 1988,
initially a combination gunite/soil cover. Due to community concern that this
alternative would create aesthetic problems in Alviso and that the hard
surface could cause injury to children, in addition to the fact that this
alternative was unpopular with the U.S. Fish and Wildlife Service, EPA
selected the soil cover (with no gunite) as the remedy for the ring levee. A
footpath will be placed on top of the cover, and the soil will be vegetated
to prevent erosion. The soil cover will satisfy State and Federal regulatory
agencies' concern about wildlife habitat. This alternative is expected to
control asbestos emissions from the levee, bringing about immediate and long-
term protection to human health and the environment. Dust control techniques
also will be used during implementation to minimize the risks associated with
airborne asbestos. The capital cost of the soil cover alternative is
estimated to be $1,850,400.
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III. SUMMARY OF COMMENTS RECEIVED AND EPA RESPONSES
For purposes of simplification, EPA has categorized the comments (and
responses to those comments) as follows:
(A) Comments made by the Raisch Company;
(B) Comments made by the City of San Jose;
(C) Comments made by Government Agencies;
(D) Comments made by Members of the Interested Public; and
(E) Comments made at the April 28, 1988 public meeting.
Each of these categories is presented, in turn, below.
Ill(A) COMMENTS MADE BY THE RAISCH COMPANY:
Comment:
1. The Raisch Company expressed "its strong objection to the
inadequate time allowed to prepare and submit comments on the
OUFS."
EPA Response:
EPA is required by the NCP (40 CFR §300.67(d)) to provide not
less than 21 days for public comment on the OUFS. EPA provided
43 days in this case. EPA believes that its public comment
period was adequate.
Comment:
2. The Raisch Company objected to delays in notifying it of its
PRP status. Indicating that the site was first listed on the
NPL in 1984, and that the City of San Jose was first notified
in 1985, The Raisch Company questioned the reasons for delaying
this notification until February 1988. The Raisch Company
further asserted that EPA violated Section 113K(2)(D) of CERCLA
by not notifying it sooner regarding its status as a PRP.
EPA Response:
/
EPA notified Raisch as soon as it made its determination that
Raisch was considered a PRP.
Comment:
3. The Raisch Company commented that "the failure of EPA to notify
The Raisch Company at an earlier date has prevented and
prohibited the company from participating in the extensive
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studies, investigations, and other activities that have led to
the issuance of the...OUFS."
EPA Response:
See the response to comment 2. EPA has neither prevented nor
prohibited Raisch from participation. EPA welcomes Raisch's
participation.
Comment:
4,. The Raisch Company also stated that allowing "a response period
of less than six weeks is not only inadequate, but it appears
as an attempt by the Environmental Protection Agency to
prohibit The Raisch Company from creating an adequate
administrative record to defend against future EPA actions
regarding the site." Moreover, The Raisch Company stated that,
"the inadequate time allowed to respond to the OUFS...con-
stitutes a violation of Section 113K(2)(B)(ii)" of CERCLA.
EPA Response:
See responses to comments 1 and 2. EPA has considered
Raisch's comments. EPA has gone beyond the requirements of
CERCLA §113K(2)(B)(ii).
Comment:
5. Citing EPA's reliance on technical data in the OUFS, The Raisch
Company requested "adequate time to retain their own technical
experts to review and comment on the studies relied on by the
authors of the OUFS." Moreover, The Raisch Company stated that
the time allowed for comment, combined with "EPA's delay" in
including The Raisch Company as a PRP, "practically prohibits"
the use of outside consultants and technical experts in the
review process.
EPA Response:
See the response to comment 3.
Comment:
6. Asserting that EPA failed to allow adequate time to create an
administrative record and submit appropriate comments, The
Raisch Company stated that the ongoing RI/FS for the entire
Alviso South Bay Asbestos site will be "prejudged by the
remedial action selected in the OUFS process."
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EPA Response:
The intent of the Operable Unit is to control the release of
asbestos fibers from the ring levee. The RI/FS is intended to
evaluate the entire site and will, of course, take into account
the Operable Unit. However, the RI/FS will not be "prejudiced"
by the Operable Unit. Raisch will be able to comment on the
RI/FS during the RI/FS comment period.
Comment:
7. Pertaining to asbestos health risks, The Raisch Company
indicated that the OUFS makes no mention of the different types
of asbestos existing in the environment nor does it mention the
different health risks associated with the different asbestos
types (serpentine and amphibole). Moreover, Raisch stated that
"there is uncontrovertible evidence that the serpentine group
(chrysotile) is far less hazardous than the amphiboles and that
its production and use can and is being successfully
regulated." Stating that serpentine formations are widespread
throughout California, Raisch incorporated by reference the
following five exhibits as evidence of the different health
risks associated with the two asbestos groups:
o Article from California Mining dated September 1986;
o "Geological Occurrences and Health Hazards of Amphibole
and Serpentine Asbestos," by Malcolm Ross gf the U.S.
Geological Survey;
o Article from the British Journal of Industrial Medicine
dated 1980, entitled "Dust Exposure and Mortality in
Chrysotile Mining, 1910-75;"
o Letter from Robert G. Coleman, Ph.D., of Stanford
University dated March 25, 1986, addressed to Board
Secretary, California Air Resources Board; and
o Letter from Malcolm Ross of the U.S. Department of
Interior dated February 28, 1985, addressed to Dr. Bernard
D. Goldstein of EPA.
The Raisch Company further stated that "the conclusion can be
drawn from the attached reports that the concentrations of
chrysotile asbestos found in the air in Alviso does not
constitute a significant health risk."
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EPA Response:
EPA's position is that all types of asbestos are potentially
carcinogenic to humans. EPA has determined that asbestos is a
hazardous substance for the purpose of CERCL&. See 40 CFR
§302.4. High rates of lung cancer in asbestos workers have
been related to all types of asbestos, including chrysotile.
This position is supported by many asbestos research
publications, including "Airborne Asbestos Health Assessment
Update" (USEPA, 1986, publication 600/8-84-0031), prepared by
Dr. William Nicholson of Mt. Sinai Hospital. Current Federal
regulations regarding asbestos in schools (Asbestos Hazard
Emergency Response Act, under Title II of the Toxic Substances
Control Act) also concludes that all asbestos types are
hazardous (Federal Register, Vol. 51, No. 19, Jan 29, 1986,
Supplementary Information). The National Research Council
("Non Occupational Health Risks of Asbestiform Fibers,"
National Academy Press, 1984) reports the following:
"Results of studies of various groups of workers indicate that
it is extremely difficult to assess the role of fiber type
(i.e., chrysotile or [amphibole]) in determining the risk for
developing either lung cancer or mesothelioma... Some
scientists have interpreted the available epidemiological data
to indicate that chrysotile asbestos, the asbestos type most
commonly used in the U.S., is less hazardous than the other
types of asbestos, especially crocidolite... However, in view
of the laboratory evidence and great uncertainty about the
nature of the fibers of asbestos to be found in nonoccupational
exposure situations, the committee decided not to differentiate
among them in the quantitative risk assessment. Furthermore,
some of the apparent discrepancies [in cancer potency] may be
explained by differences in physical properties of the fibers,
fiber concentration, and their characteristics."
Thus, EPA does not agree with Raisch's assertion that
chrysotile is less hazardous than other types of asbestos. EPA
has studied the five exhibits entered into the record by the
Raisch Company but believes that sufficient data exists to show
that chrysotile is harmful.
Comment:
Under a heading entitled "Air Monitoring," The Raisch Company
stated that the air monitoring done to date is "inadequate to
support any remedial action for the ring levee." Raisch
further stated that "the sampling did not take into account
what type of asbestos fibers were found in the air." Citing
the Woodward-Clyde report, Raisch stated that "the testing they
undertook failed to distinguish and/or isolate asbestos
originating from other activities in Alviso from naturally
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occurring asbestos in the ring levee." Furthermore, stating
that serpentine rock is California's most prevalent rock,
Raisch argued that "it is very likely that had the same tests
conducted by DHS been conducted on any exposed serpentine rock
anywhere in California that similar results would have been
obtained." In summary, The Raisch Company stated that "the
ambient air testing done to date in Alviso has failed to
isolate the ring level [sic] as the source of asbestos in the
air in Alviso and has failed to demonstrate that the ambient
air concentrations of asbestos in the Alviso area are
significantly different than in the surrounding San Jose
area."
EPA Response:
EPA acknowledges that, based on existing data, the ambient air
in Alviso may not be significantly different than air in San
Jose. The results of the overall RI/FS investigation, which
will be presented later this year, appear to indicate that wind
erosion and suspension of asbestos particles by wind may not be
the primary mechanism for transporting asbestos from the ground
into the air. This is supported by the Woodward-Clyde report
that shows that even with samplers directly upwind and downwind
of the levee, asbestos results varied, sometimes showing higher
fiber counts upwind. EPA believes that mechanical activity,
such as driving, bicycling, or digging, may be primarily
responsible for disturbing the soil and releasing fibers which
can be inhaled. Thus, the rationale for acting to remediate
the levee is concern over the potential exposure to individuals
who might inhale asbestos fibers released from the levee during
soil disturbance. Similar asbestos conditions elsewhere in the
State do not preclude EPA from taking action in Alviso, where
the potential for exposure is high, due to the proximity of the
town and the condition of the levee. The site data collected
by EPA show that the asbestos fibers found in the soil are
chrysotile and are the same as the fibers found in the air.
Thus, Raisch's comment about the Woodward-Clyde report is
incorrect.
Comment:
The Raisch Company stated that the OUFS "failed to discuss
several practical, feasible, and cost-effective remedial action
alternatives ..." Furthermore, Raisch stated that, in some
cases, the OUFS "does not adequately address the remedial
action alternatives identified."
EPA Response:
The OUFS was prepared following the guidelines outlined in the
NCP (40 CFR Section 300.68), guidance documents issued by EPA's
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Office of Solid Waste and Emergency Response (OSWER Directives
9355.0-19 and 9355.0-21), and EPA's guidance on Feasibility
Studies issued in March 1988. These documents dictate the
procedures that must be followed to identify a range of
remedial action alternatives. Page 2-23 of the OUFS defines
the remedial action technologies that were selected for
screening. Under the regulations and guidance documents, these
technologies must range from No Action to innovative treatment
options. Several practical, feasible, and cost-effective
options were included and discussed in the OUFS. Each
alternative was adequately addressed as mandated in the
guidance quoted above. In addition, Raisch did not identify
any other specific "alternatives" that it wanted EPA to
consider.
Comment:
10. In reference to the No Action Alternative (Alternative 1), The
Raisch Company stated that "no demonstration has been made that
there are adverse health effects from chrysotile asbestos in
the concentrations found in the ambient air at the Alviso
site." Raisch further stated that "the ambient air testing has
failed to isolate the ring levee as the source or a source of
asbestos in the ambient air at Alviso..." Furthermore, Raisch
stated that "evidence is not presented to indicate that the
concentrations of asbestos in the air in Alviso are
significantly different than concentrations in the Greater San
Jose area." For these reasons, The Raisch Company asserted
that the selected alternative should instead be No Action.
EPA Response:
As stated in previous responses, EPA does not regulate specific
asbestos types differently, and is officially committed to
considering all asbestos types hazardous substances. It is
true that the OUFS did not isolate the ring levee as the source
of asbestos in Alviso's ambient air. However, EPA is concerned
that direct disturbance of levee soils which have
demonstratively high (up to 40% by area) asbestos levels, and
inhalation of asbestos from the resulting dust, are potential
health risks requiring remedial action.
Comment:
11. Under the heading "Chemical Soil Suppressant," The Raisch
Company stated that the use of chemical soil suppressants is
discussed in the OUFS only in terms of "its potential permanent
application" and that its use to date has been "markedly
successful." Raisch therefore asserted that its continued
application "would be the most logical and rational approach to
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the ring levee" until the conclusion of the RI/FS and selection
of a permanent solution for the entire site. Raisch stated
that "such an approach is the only alternative that has no
potential of being in direct conflict with an ultimate solution
for the ring levee, whatever that may be." Raisch asserted
that continued application of soil suppressant "is also
consistent with a City of San Jose and Army Corps of
Engineers' plan for flood control improvements to the Coyote
and Guadalupe Rivers in the Alviso area," because "it is
believed that once these flood control measures have been
implemented...the need for the levee would no longer exist and
it could then be removed..."
EPA Response:
EPA has used the soil suppressant as a temporary control
measure until a permanent, cost-effective remedy is selected.
In order to select a permanent remedy, EPA conducted an OUFS
which identified several permanent alternatives. Each
alternative was evaluated by several criteria as mandated by
CERCLA. The objective of the remedy selected will be to
control the release of asbestos fibers from the levee soils.
Such a remedy is consistent with the possible remedial
alternatives being identified for the rest of the South Bay
Asbestos Area.
EPA understands that the City considers the ring levee a
necessary flood control measure, because neither the City nor
the Army Corps of Engineers has expressed contrary views. EPA
will not implement the removal and replacement of the ring
levee, because equally effective alternatives exist which are
more cost-effective. EPA would consider the removal of the
ring levee if the PRPs were committed to completing the tasks
at their own expense and under EPA supervision.
Comment:
12. The Raisch Company, citing discussions between the City of San
Jose and the Army Corps of Engineers regarding the possible
incorporation of the existing levee "into a larger and more
permanent levee structure," stated that if this project
proceeds, "the existing levee would be an ideal base for a new
levee." The Raisch Company asserted that, in this case, "the
ring levee would be covered with more than ample material to
prevent the escape of any asbestos containing materials into
the air." Raisch further asserted that incorporating the
existing levee into a permanent levee "would be far and away
the most cost efficient and practical method of construction of
a new permanent levee," and that the OUFS should have
considered this alternative.
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EPA Response:
EPA did not address the "ultimate levee" or large-scale
permanent levee as an alternative for the following reasons:
First, EPA's responsibility at the site is to address the
problems of asbestos contamination, not flood control. Second,
the possibility that the "ultimate levee" would be built
appears highly uncertain; no source of funding for
construction has been identified, the City of San Jose is
unable to commit to a date of construction, and the Army Corps
of Engineers would have to approve the project, given its
location in wetlands. For these reasons, the "ultimate levee"
was not considered as an alternative.
Comment:
13. The Raisch Company asserted that "a practical, permanent and
cost effective solution to any risk created by the ring levee
would be to remove the material comprising the ring levee to a
nearby highway construction project where the material would be
utilized as a base fill and covered with sufficient non-
asbestos containing material and/or sealed with asphalt in
conjunction with such a project to prevent the future escape of
any material into the atmosphere." In support of this
assertion, Raisch stated that the material is "not inherently
hazardous but can become hazardous if released to the
atmosphere and inhaled in high concentrations over long
periods of time," and that "if the asbestos containing rock has
no potential for release to the atmosphere, it becomes non-
hazardous." The Raisch Company further stated that relocating
the levee material to a highway construction project
"permanently removes the material from the Alviso area and
disposes of it in a manner where the material is rendered non-
hazardous." Finally, Raisch stated that such a process is also
"the most cost effective alternative and minimizes any
transportation problems related to any other removal
alternative (i.e., to a permitted facility)."
EPA Response:
Although EPA has determined that placement of the levee in a
RCRA-approved landfill, if off-site disposal were chosen, is
not necessary, a California certified Class II landfill would
be required as a disposal site, since asbestos is classified as
a toxic contaminant by the State of California. The
requirements of Class II disposal, as promulgated under
California law, would apply to the levee. Any disposal site
other than a Class II landfill such as a construction site,
would not be feasible under the law, absent a waiver by the
State. Thus, the option of removing the contaminated fill to a
highway project could not be considered.
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Comment:
14. Alternatively, The Raisch Company asserted that the material
could be "returned to its 'quarries of origin1 for future use
as fill material under circumstances protecting escape of
asbestos into the air." Raisch stated that "the ability to
work with asbestos containing serpentine in a safe manner is
clearly demonstrated in the Summary Report, entitled
'Serpentine/Asbestos Public Health Analysis.'" The Raisch
Company attached this report to their comments for the record.
Furthermore, Raisch cited the following provision in Section
122(b)(l) of CERCLA:
"Remedial actions in which treatment which permanently and
significantly reduces the volume, toxicity, or mobility of
hazardous substances, pollutants and contaminants is a
principle element and are preferred over remedial actions
not involving such treatment."
Following this citation, The Raisch Company included the
following incomplete sentence:
"These latter two alternatives, i.e., removal to a nearby
project site and/or removal to the quarries of origin"
Presumably, Raisch intended to state that these latter two
alternatives are more consistent with the cited provision of
CERCLA than is the preferred alternative. The Raisch Company
stated that removing the material to a suitable construction
site or to the quarries of origin "are consistent with other
Federal laws and regulations and remove all problems associated
with leaving the levee in place." Finally, citing that "no Bay
Conservation and Development Commission permit was obtained,
no Environmental Impact Report was done prior to construction
of the levee, no 404 Clean Water Act permits were obtained and
no wetland mitigation provided," Raisch stated that "removal
of the levee resolves all of these problems."
EPA Response:
Removal of the levee to the quarry of origin would not be
consistent with State law, absent a waiver, as stated in the
previous response. Removal and off-site disposal in a quarry
does not constitute treatment. Treatment options discussed in
the OUFS include in-situ vitrification, fixation, and plasma
fusion. EPA feels that removal of the levee to an appropriate
facility involves more cost and implementation risks (during
excavation and transportation) than would a soil cover that
reduces and controls asbestos exposure.
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III(B) COMMENTS MADE BY THE CITY OF SAN JOSE:
Comment:
15. The City of San Jose asserted that the OUFS is "substantially
deficient," and that it cannot, therefore, "serve as a basis
for decision." The City further stated that "more work will be
required before the OUFS can be said to be adequate to the task
of analyzing the risks and providing an adequate evaluation of
the appropriate remedial actions."
EPA Response:
The OUFS report was prepared following all requirements of
CERCLA as amended by SARA and the National Contingency Plan (40
CFR §300.68). Page 2-1 of the OUFS cites the guidance
documents on which the OUFS is based. All requirements
governing an OUFS have been met. The ring levee was separated
from the rest of the site as an operable unit because EPA
believes that the levee poses a significant potential risk from
asbestos exposure. The OUFS report provides sufficient
information to make decisions regarding risk from asbestos.
Comment:
16. Specifically, the City of San Jose stated that "the OUFS does
not properly address the question of causation, i.e., whether
whatever asbestos that is present in various other parts of
Alviso (including the atmosphere) came from naturally occurring
chrysotile asbestos contained in the serpentine rocks and soil
in the levee." The City submitted that "there is considerable
evidence that much, if not all, asbestos which may be found in
Alviso came from sources other than the levee."
EPA Response:
EPA's studies at the site have shown that samples from
different sources or locations have the same type of chrysotile
asbestos fibers, that is, the source of asbestos at the site
either naturally-occurring or processed, cannot be
distinguished by fiber size, morphology, or mineral type.
Thus, EPA has seen no evidence that "most if not all" asbestos
came from non-ring levee sources. The OUFS report focuses on
the ring leve.e specifically, because of the significant
potential for asbestos exposure due to disturbance of and/or
inhalation of levee soils containing asbestos.
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Comment:
17. The City of San Jose stated that the chrysotile asbestos in the
levee poses no different health hazard, nor should be treated
differently, than if the levee were a natural formation. The
City further asserted that "EPA has inadequate information to
conclude that a health risk may exist in Alviso as a result of
the serpentine rocks and soil in the levee."
EPA Response:
The ring levee is distinguished by EPA from a natural
formation, because it has been physically altered, removed from
its original location, and transported to the site. Thus, EPA
justifiably considers it to be different than a natural
formation. See CERCLA §§104 and 121, 42 U.S.C. §§9604 and
9621. Furthermore, the proximity of the levee to the site
residents and the potential exposure to asbestos from the levee
is of concern. The information in the OUFS demonstrates that a
potential health risk from the levee exists.
Comment:
18. The City of San Jose asserted that "critical engineering
questions have not been adequately examined."
EPA Response:
The purpose of the OUFS is to present information regarding the
feasibility of various remedial options. The actual design of
the remediation, including engineering specifications, will be
presented in the Remedial Design Report, which follows the
Record of Decision (ROD). With the exception of the issues
addressed below, the "critical engineering questions" mentioned
in the comment have not been specified, so that specific
responses are not possible.
Comment:
19. The City of San Jose stated that "the OUFS fails to examine the
flood control ramifications of the proposed remedial
alternatives." The City asserted that the OUFS must include,
for each alternative, engineering analysis pertaining to the
associated risks of flood damage.
EPA Response:
EPA's role, under the Superfund program, is to remediate the
potential risks to human health, welfare, and the environment
caused by hazardous substances, pollutants, or contaminants.
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See CERCLA §§104 and 121, 42 U.S.C. §§9604 and 9621. Although
flooding at the site is a potential hazard, EPA's
responsibilities under CERCLA extend only to the risks from
hazardous substances, pollutants, or contaminants, not from
flooding. In any event, each alternative examined in the OUFS
would only improve the levee in terms of stability and
resistance to flood erosion. It is important to note that
since the levee is not continuous around the town (Los Esteros
Road, Grand Boulevard, and Taylor Road pass through the levee
at an elevation lower than the levee), its flood function may
be incomplete. Any damage to the remediated levee due to
floods would be repaired as part of long-term operations and
maintenance.
Comment:
20. The City of San Jose further stated that "compaction tests
should be conducted prior to any decision to add cover to the
levee."
EPA Response:
Compaction tests would be performed as part of the remedial
design and actual construction phases of the project.
Comment:
21. The City of San Jose asserted that EPA "commits a fundamental
error" in considering the ring levee to be a hazardous waste
site. The City contends that the site should be considered a
"community structure," as defined in 42 U.S.C. §9604(a)(3)(B).
The City stated that "its character as a waste is
questionable: It is soil and dirt, containing naturally
occurring, unprocessed, unmanufactured serpentine material,
which contains chrysotile asbestos."
EPA Response:
The ring levee falls within the definition of "facility" under
CERCLA §101(a), 42 U.S.C. §9601(a). A facility includes, "any
site or area where a hazardous substance has been deposited...
or otherwise came to be located..." Asbestos, whether
processed or unprocessed, is a hazardous substance, pursuant to
40 CFR §302.4 and CERCLA §101(14), 42 U.S.C. §9601(14). Both
processed and unprocessed asbestos can pose a health hazard.
Since the asbestos here was deposited on the ground from the
ring levee, the levee is unquestionably a "facility." Thus,
the city's assertion that the ring levee is not a hazardous
site is incorrect.
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The City's second comment, that the levee should be considered
a community structure is also incorrect. CERCLA §104(a)(3)(B),
42 U.S.C. §6604(a)(3)(B), limits response actions for "products
which are part of the structure, and result in exposure within
residential buildings, business, or community structures..."
The term community structures refers to a non-residential or
business building, such as a school or city hall. The levee is
not such a structure. In addition, even if the levee were
considered to be a community structure, CERCLA §104(a)(3)(B)
limits responses "from products which are part of the
structure, and result in exposure within..." the structure.
Here, EPA is not concerned with any release of asbestos
"within" the structure, but rather "from" the structure. Thus,
the response limit would not applyv
Comment:
22. The City of San Jose stated that, "if the EPA were to select a
remedy other than removal, and health and flood/engineering
issues were equal, then the most desirable remedy is the one
which would provide for an acceptable appearance of the levee,
one which meets the aesthetic needs of the Alviso community."
In such a case, the City of San Jose stated that "a soil cover,
with low maintenance native plants and gunite only where it is
necessary, would be preferable, certainly to the plain gunite
cover."
EPA Response:
EPA appreciates the City's suggestion of the soil cover, with
native plants being preferable to the gunite cover as an
alternative.
Comment:
23. The City of San Jose strongly urged that "the views of the
Alviso community be taken into account on matters such as
desirability of a walking-jogging path, benches, and other
amenities, if the safety of the community is assured."
EPA Response:
EPA has taken the views of the community into account, through
a series of public meetings, meetings with the Community
Advisory Committee, and requests for input in fact sheets,
flyers, and public notices. The OUFS did not describe the
finished levee cover in detail concerning paths, benches and
other amenities. These are details of final design which will
be presented at a later date, provided that liability of the
levee landowners is not a problem. EPA is aware that the
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residents would prefer a usable public space if the levee is to
remain, and EPA plans to satisfy this concern to the extent
possible under the law. !
Comment:
24. The City of San Jose stated that a recent file search "revealed
the possibility that it may be appropriate to designate
additional potentially responsible parties (PRPs). These
include the U.S. Department of the Interior, Piazza
Construction, Hillsdale Quarry, and W. H. Ebert Construction."
Moreover, the City stated that "EPA should investigate more
thoroughly the sources of the material that the levee was
constructed from and whether those sources contained asbestos
in order to accurately identify all Potential Responsible
Parties, as required by 42 U.S.C. §9613(k)(2)(D)." Finally,
citing Page 1-6, lines 18-19 of the OUFS, the City of San Jose
stated that EPA should identify the additional source for the
fill, if this is someone other than Raisch. The City further
stated that this source should be investigated to ascertain
whether it contains asbestos, and that the source should be
identified as a PRP, as required by 42 U.S.C. §9613(k)(2)(D).
EPA Response:
Pursuant to CERCLA §113(k)(2)(D), 42 U.S.C. §9613(k)(2)(D), EPA
has conducted a diligent search for PRPs and has identified San
Jose and Raisch as PRPs for the Alviso Ring Levee. The City
suggests, however, that other entities may also be PRPs. EPA
has evaluated the City's suggestion and has determined that
none of these parties will be considered Alviso Ring Levee PRPs
at this time.
Comment:
25. The City of San Jose stated that "any remedial orders should
consider both long and short term solutions, and should provide
for subsequent alterations, for example to permit work to be
undertaken on the ultimate levee."
EPA Response:
CERCLA §121, 42 U.S.C. §9621, requires EPA to evaluate the long
term effectiveness of a range of alternatives. EPA has made
the required analysis in the OUFS. EPA's remedy will not
preclude further action by the City at the levee, provided
public health and environmental concerns are met.
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Comment:
26. The City of San Jose stated that "any removal and rebuilding
which might be permitted should be accomplished between April
15th and October 15th, in view of weather considerations."
EPA Response:
EPA appreciates this comment regarding the best construction
season. These considerations will be part of the Remedial
Design document.
Comment:
27. The City of San Jose stated that removal of any or all of the
levee should not be conducted until "flooding/engineering
studies have been conducted, and adequate flood control
measures, if required, are taken." The City further stated
that "the effects of transportation and disposal should be
carefully considered, before any removal is ordered."
EPA Response:
If removal were to be carried out, as described in Section
3.3.3 of the OUFS, removal would be staged so that outgoing
loads of contaminated soil would be replaced with incoming fill
by the same trucks, if possible. In that scenario, therefore,
levee replacement would proceed concurrently with removal, so
that flood protection would not be compromised. EPA has
considered the effects and the cost of transportation and
disposal of the levee, and has screened out off-site disposal
as an option unless the PRPs would conduct the removal,
disposal, and replacement of the ring levee, as described in
the report.
Comment:
28. The City of San Jose stated that the matter of asbestos is
complex, and that "data as to asbestos health risks is
incomplete, especially as to chrysotile asbestos."
EPA Response:
EPA acknowledges that the matter of asbestos is complex, and
for that reason accepts that all forms of asbestos are
potentially hazardous, including chrysotile. EPA is taking a
conservative approach in their concern for potential, as well
as for existing, health risks. Please refer to the response to
comment 7.
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Comment:
29. The City of San Jose contended that "the comment period
allotted to the City, thirty days, plus a two-week extension,
was simply too brief to permit the City to fully address
matters of the complexity involved in the OUFS. EPA's denial
of the City's request for a sixty day extension hindered the
City in conducting its review of the OUFS, prevented a study
of other alternatives and combinations of alternatives, and in
preparing full comments on the OUFS. As a consequence, the
City asserts that it has been denied due process of Law."
EPA Response:
EPA has complied with all of the requirements of CERCLA
Section 113(k)(2)(B) -- "Administrative Record and
Participation Procedures" for remedial actions. In addition,
EPA has met with and briefed the City of San Jose as often as
requested over the past three years. See the response to
comment 1.
Comment:
30. The City of San Jose expressed its regret that time limitations
constrained their efforts to provide full comments, and stated
that the City "would welcome an opportunity to submit further
comments."
EPA Response:
The original comment period opened on April 12, 1988, and
allowed for a four week public comment period. The final close
of the comment period was on May 25, 1988, which provided a
total of six weeks for public review and comment. The comment
period was twice as long as required by law and afforded all
parties adequate review time.
Comment:
31. Citing Page ES-1, lines 3-4 of the OUFS, the City of San Jose
indicated that the referenced height of the levee conflicts
with other sections of the report. The City indicated that
this conflicts with Page 1-12, Section 1.3.2, lines 28-30; and
Page 1-6, lines 17-20 of the OUFS.
EPA Response:
Different values for the height of the levee have been
inconsistently reported, because the height of the levee is
variable depending on location. The reference to levee height
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should read, "The levee is an average of 6 feet in height, and
ranges from 5 to 12 feet in height depending on location."
Comment:
32. Also citing Page ES-1, lines 3-4 of the OUFS, the City of San
Jose indicated that the statement that the levee "surrounds
most of the community of Alviso..." is inaccurate. Referencing
Page 1-12, lines 28-30 of the OUFS, the City stated that
"surrounding the town on the east, north, and northwest...does
not reasonably imply that 'most of the community1 is
surrounded."
EPA Response:
Referencing Figure 1-2 of the OUFS, it is apparent that the
ring levee is a significant linear feature, approximately 2
miles in length, that is present to the east, north, and
northwest borders of Alviso. The statement that the levee
"surrounds most of the community" is not misleading when the
figures that accompany the text are examined.
Comment:
33. Citing Page ES-1, lines 6-8 of the OUFS, the City of San Jose
stated that "portions of the levee were constructed during the
flood, not after," and that "accurate placement of the
emergency levee, in terms of conforming to existing property
lines, was hampered by the flood conditions (parts of the area
were under water)."
EPA Response:
EPA acknowledges the City's comment about the timing of levee
construction and flood conditions during construction. This
information was not available during preparation of the report.
Comment:
34. Also citing Page ES-1, lines 6-8 of the OUFS, the City of San
Jose stated that the City "did not then and does not now have
primary jurisdiction or responsibility for providing flood
protection. Prior to the emergency action, no plans were being
developed by the City to construct a levee. The statement that
the City and the County were jointly planning to provide flood
protection is incorrect. The Santa Clara Valley Water District
is the public agency charged with flood control
responsibility."
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EPA Response:
The OUFS made the statement that the ring levee was constructed
"as part of the City's and County's plans to provide improved
flood protection based on the Draft Environmental Impact Report
of the Alviso Ring Levee prepared by Ruth and Going, November
1983 and October 1984, for the City of San Jose. In the two
versions of that document, the statement is made (Page 1,
Summary of Impacts) that "The proposed project, the Alviso Ring
Levee, would be an earthen dike intended to provide flood
protection for the community of Alviso from fresh water and
tidal flooding." Also, on Page IV-1 (Project Relationship to
Existing Plans and Policies), it is stated that "the proposed
Ring Levee would be consistent with the policies of the San
Jose General Plan. These references were used to support the
general introductory statements on the background of the
construction of the existing ring levee.
Comment:
35. Citing Page ES-1, lines 8-10, and Page 1-6, lines 16-19 of the
OUFS, the City of San Jose stated that its research indicated
that the sources of material used during construction of the
levee includes two quarries: the Raisch Quarry and the
Hillsdale Quarry. The City stated that "it is not known at
this time whether the Hillsdale Quarry materials contained
asbestos."
EPA Response:
EPA appreciates the comments regarding the sources of the levee
material. This information will be considered by EPA in their
research and negotiations with potentially responsible parties.
Comment:
36. Also citing Page ES-1, lines 8-10, and Page 1-6, lines 16-19 of
the OUFS, the City of San Jose questioned which quarry is
referenced as being in Cupertino.
EPA Response:
The material was provided from an excavation on Homestead Road
in Cupertino.
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Comment:
37. Citing Page ES-2, lines 6-8 of the OUFS, the City of San Jose
questioned "whether the implied elimination of the removal
option due to 'high costs' is valid."
EPA Response:
EPA has determined, since the OUFS was finalized, that RCRA
regulations do not apply to the South Bay Asbestos site, since
asbestos is not a RCRA-defined hazardous waste. Therefore,
wastes would not have to be disposed of at a RCRA Subtitle C
facility. However, since asbestos is classified as a toxic
contaminant by the State of California, disposal would be
required at a State approved Class II landfill. This would
decrease disposal costs, but hauling fees would remain high, as
well as the costs for replacement of the levee. Since an
equally effective remedy can be implemented at lower cost, the
removal option was screened out.
Comment:
38. Again citing Page ES-2, lines 6-8 of the OUFS, the City of San
Jose asserted that locations other than RCRA-approved landfills
should be considered for disposal of the material.
Specifically, the City stated that "existing EPA policy
requiring that naturally occurring asbestos material in soil
and rocks be disposed of only in RCRA-approved facilities (when
asbestos can be safely disposed of by burial which does not
pose any long term threat by migration), should be examined
prior to dismissal of the removal option as too costly." The
City further stated that "the history of EPA's actions for
asbestos abatement includes instances where asbestos material,
once safely buried, was excavated and reburied at high cost
with no additional increased protection, is often cited as an
extreme example of bureaucratic mismanagement."
EPA Response:
As stated in the previous response, a RCRA-approved landfill
would not be required for disposal. This will make the
disposal option less costly. However, since equally effective
remedies are available at lower cost, the disposal option was
screened out.
Comment:
39. Citing Page ES-2, lines 15-17 of the OUFS, the City of San Jose
stated that "it is not clear what the term 'easements' means
here. If it applies to easements needed to apply the gunite
versus the soil.cap, then the statement may be true. If
easements for the placement of the levee are in question, it is
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not clear why the gunite option would eliminate any required
easement."
EPA Response:
The OUFS, on page ES-2, is referring to the permanent easements
required for the cover, that is, the cover (whether soil or
gunite) that will extend laterally beyond the base of the
existing levee. Since the gunite is several inches thick, as
opposed to the soil cover which is 18 inches thick, a smaller
permanent easement is required with the gunite cover design.
Refer to Figures 4-1 and 4-2 of the OUFS for a graphic
representation of the difference in easement requirements.
Comment:
40. Citing Page ES-2, lines 15-17 of the OUFS, the City of San Jose
stated that "speculating as to what will be acceptable to the
public is not appropriate. They should be consulted and
heeded."
EPA Response:
The public has been consulted and heeded throughout the RI/FS
process. Several public meetings have been held at which times
comments were received from residents. EPA has been in contact
throughout the process with the Community Advisory Committee
and spokesmen for the community. Furthermore, the OUFS was
based on the previous OUFS report prepared by Canonie Engineers
for the State, which also underwent a period of review and
comment. In addition, the public will have further input
during the design phase of the project. For a complete list of
the community relations activities conducted by EPA at this
site, see Section I of this Responsiveness Summary entitled
"Background on Community Involvement and Concerns."
Comment:
41. Citing Page 1-1, lines 15-19 of the OUFS, the City of San Jose
stated that, although the language seems to indicate that
asbestos found elsewhere came from the levee, and acknowledged
that chrysotile asbestos may be present in the rocks and soil
in the levee, the OUFS "does not establish that there has been
any 'significant1 migration of that form of asbestos from the
levee."
EPA Response:
The purpose of the OUFS was to examine various remedial options
for the levee itself, based on the potential risks to persons
26
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in the area of the levee, rather than to establish that
migration of asbestos has taken place from the levee.
Comment:
42. The City of San Jose asserted that "the [DHS] tests which may
indicate the possibility of migration have not been shown to
have been conducted in a matter accepted as scientifically
valid."
EPA Response:
The DHS exposure experiments were intended as screening tests
to indicate the potential for asbestos exposure. EPA believes
that the DHS tests yielded significantly valid results for
purposes of screening evaluation. The tests clearly
demonstrated that certain common activities could release
asbestos fibers to the air. This is stated in the OUFS on Page
4-10.
Comment:
43. In reference to Page 1-1, lines 15-19 of the OUFS, the City of
San Jose suggested that the sentence be reworded to state
(...appears to be a discrete area where naturally occurring
chrysotile asbestos is found in rocks and soil,...), instead of('
(...appears to be a significant source of asbestos....).
EPA Response:
Thank you for your suggestion for rewording the sentence.
However, EPA believes this sentence is most accurate as
written, and, therefore, it will not be modified.
Comment:
44. In reference to Page 1-1, lines 15-19 of the OUFS, the City of
San Jose also asserted that the "naturally occurring chrysotile
asbestos found in the rocks and soil in the levee is no
different than the naturally occurring chrysotile asbestos
found in rocks and soil in a variety of other locations,
including their original (natural) locations." The City
further asserted that "if the levee were a fortuitously
located geologic formation deposited in its present location by
the forces of nature, it would not have been included in the
South Bay Asbestos Area. That the levee came into being as a
flood control measure, and not as a result of deposition
through the course of nature should not make any difference.
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There was no 'waste' disposal in the ordinary sense. The levee
should not be treated as a waste disposal site."
EPA Response:
EPA is concerned about potential asbestos health risks,
regardless of the origin of the material. The fibers from
natural versus processed asbestos material have equal
carcinogenic potential . The fact that the levee material was
excavated from its origin and transported to the site
distinguishes it from a natural formation or outcrop. The
waste disposal referred to on Page 1-1 of the OUFS relates to
the landfilling activity on other parts of the site, not the
construction of the ring levee.
Comment:
45. Citing Page 1-2, lines 19-21 of the OUFS, the City of San Jose
stated that "the OUFS analysis of the causes of flooding in
Alviso is superficial and that additional analysis is required
before a remedy is selected." Moreover, the City suggested
that "proximity to the Bay and land subsidence..." does not
take into consideration "a variety of factors relevant to an
evaluation of flooding risks... including but not limited to
other flood control devices." Furthermore, the City of San
Jose stated that "without an examination which goes beyond
'proximity to the Bay and land subsidence...' the OUFS is
deficient and provides an inadequate basis for selection of the
suitability, vis-a-vis the flooding potential, of any of the
alternatives." Finally, the City asserted that "in the absence
of evidence establishing that the remedial action will not
increase the risk of flooding, a prudent PRP might be compelled
to resist a remedial order, in an effort to insulate itself
from liability for flood damage and asbestos contamination
which might result from flood water erosion and dispersal of
the levee."
EPA Response:
The OUFS did not include a thorough analysis of the flood
control potential of the levee, because the control of asbestos
being released from the ring levee is the focus of EPA's
analysis. While EPA acknowledges that leaving the levee in
place rather than removing it allows for the possibility that a
very large flood may dislodge portions of the levee and
distribute the asbestos throughout the community, EPA believes
that the chances of this occurring are relatively remote.
In such an occurrence, EPA would evaluate the damage to the
levee .and the dispersion of the asbestos throughout the
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community and implement the necessary corrective action. Thus
the OUFS is not deficient.
Finally, EPA cannot speculate as to the motivation of a PRP to
fail to comply with a CERCLA §106 remedial order.
Comment:
46. Citing Page 1-6, lines 1-2 of the OUFS, the City of San Jose
stated that the levee was constructed during, not after, the
flood.
EPA Response:
EPA acknowledges the comment that at least portions of the ring
levee were constructed during the flood; this information was
not available during preparation of the report.
Comment:
47. Citing Page 1-6, lines 6-9 of the OUFS, the City of San Jose
stated that "it is the City's position that the flooding
emergency simply left no time to consult the various agencies
involved. Moreover, applicable regulations contemplate
emergency situations, and provide for 'after-the-fact1
permitting."
EPA Response:
The wording in the OUFS regarding permit status at the time of
levee construction was included to fully describe the history
of the levee. EPA acknowledges the City's comment that the
construction was an emergency action, and understands that San
Jose must obtain an "after-the-fact" permit from the Army Corps
of Engineers.
Comment:
48. Citing Page 1-6, lines 8-13 of the OUFS, the City of San Jose
asserted that "the City had no plans to construct a levee prior
to the 1983 flood. There was no 'tentative flood control plan'
prior to the construction of the emergency ring levee and the
document cited by EPA postdates the construction activity."
EPA Response:
EPA based its assumption that the City had planned to construct
the ring levee on Page 11-16 of the Alviso Ring Levee
Environmental Impact Report (Ruth and Going, 1984), which
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states "as a result of severe flooding in the Winter of 1982-
83, and in the late summer of 1983, a temporary levee was
constructed to reduce impacts to the Community of Alviso from
future flooding." EPA is aware that the quoted document post-
dates the construction, but assumes that the construction was
part of the plan which prompted the completion of the EIR.
Comment:
49. The City of San Jose asserted that Page 1-6, lines 18-19 of the
OUFS conflicts with statements on Page ES-1, lines 8-10.
EPA Response:
The Executive Summary should read "the sources of the material
used for the levee appear to be two quarries containing
asbestos..." to be consistent with page 1-6.
Comment:
50. Citing Page 1-8, lines 9-12 of the OUFS, the City of San Jose
stated that "the OUFS fails to establish either the relevance
or validity of the raking and shoveling 'experiment* (not test.
not sampling method, but 'experiment'). or that the OSHA
permissive exposure limit (for occupational settings) is
applicable to environmental naturally occurring chrysotile
asbestos when it is not artificially disturbed by raking and
shoveling in front of a fan."
«
EPA Response:
The DBS experiments were screening tests to investigate the
potential for risk from inhalation of asbestos. In that sense
they are valid indicators of a potential problem. The OSHA
permissible exposure limit is based on extensive medical
evidence of asbestos exposure (see Federal Register; June 20,
1986, OSHA Rules and Regulations), and was used in the OUFS
report as a comparison standard or frame of reference for the
reader. EPA believes the OSHA standard is applicable to
environmental asbestos sites if the concentration of the
asbestos source approaches that of occupational settings, as do
the ring levee soils. EPA believes this because the potential
risks from asbestos inhalation (i.e., lung cancer,
mesothelioma) remains the same regardless of the setting.
Comment:
51. Citing Page 1-10, lines 1-5 of the OUFS, the City of San Jose
asserted that the language is both too general and too brief.
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Moreover, the City stated that "it is simply not the case that
studies show, or permit the reasonable conclusion, that
inhalation of any single asbestos fiber, of any size, will
invariably produce an extremely adverse human health effect.
Indeed, some fibers, notably chrysotile, as a result of their
size and susceptibility to acid decomposition, seem to pose a
lower risk to adverse health effects." The City further
submitted that "not all forms of asbestos have been thoroughly
examined 'in numerous epidemiology studies.' There have been
numerous studies. These were not uniform, and many did not
(were not able to) distinguish one form of asbestos,
chrysotile, from others. The quoted language is therefore
misleading. The distinctions in the studies of the effects of
various forms of asbestos are simply too important to justify
indiscreet use of the inaccurate collective term 'asbestos'."
EPA Response:
As stated previously, EPA considers all asbestos forms to be
potentially hazardous, and does not distinguish chrysotile as
being less hazardous. It is true that many medical studies
have attempted to distinguish carcinogenic effects based on
fiber type. However, EPA's position is amply supported by many
individual and governmental research studies. As stated in
1984 by James Mason, M.D., Ph.D, Assistant Surgeon General of
the United States, "these recent studies have shown that
chrysotile asbestos is firmly established as a human health
hazard." Referenced studies include those by Stanton et. al,
which has shown that fibers less than 1.5 microns in diameter
and greater than 8 microns in length^are carcinogenic in
experimental animals regardless of physiochemical properties;
Robinson et. al., McDonald, et al., Selikoff, Nicholson et al.,
Rubino et al., Boutin et al., and Kogan. Each of these reports
shows a positive correlation between exposure to chrysotile
asbestos and biological disease in humans including asbestosis,
lung cancer, and mesothelioma.
Comment:
52. Citing Page 1-12, lines 8-9, 12-14, and 25-26 of the OUFS, the
City of San Jose noted that it appreciated EPA's concern for
asbestos exposure, but stated that "concern does not mean that
a particular action contemplated by EPA is justified." The
City further noted that EPA, to date, has not found "a"
justifiable basis for the promulgation of appropriate standards
for naturally occurring asbestos in rocks and soil." The City
thus concluded that this is the reason EPA has not promulgated
these standards. The City of San Jose further asserted that
"acting against the levee on the basis of data that is
incomplete - - or worse -- in the face of data indicating that
different forms of asbestos pose different risks, and that
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chrysotile may well pose the least risk, would be arbitrary and
capricious."
EPA Response:
EPA has acted at many Superfund sites where health standards
have not been promulgated. According to the National
Contingency Plan (40 CFR §300.3), EPA may act to prevent
"releases or substantial threats of releases of hazardous
substances into the environment...which may present an imminent
and substantial danger to public health or welfare." In
addition, CERCLA states that EPA is authorized to act to
remove or arrange for the removal of and provide for remedial
actions relating to hazardous substances whenever EPA deems it
necessary to protect the public health, welfare, or the
environment, CERCLA §104(a)(l), 42 U.S.C. §9604(a)(l). This is
consistent with the NCP. The OUFS presents sufficient data to
indicate the potential for exposure to a known human
carcinogen, and thus provides adequate support for a remedial
action.
Comment:
53. Citing the OUFS supplemental sheet, dated April 28, 1988, the
City of San Jose stated "there is no justification for EPA to
take action until all unresolved matters have been addressed.
To act otherwise would deny the rights of Alvisans and the PRPs
to an informed reasonable judgment, and procedural due
process." The City based this assertion on the following
statement contained in the OUFS supplemental sheet, "levels of
ambient airborne asbestos in 'the community do not appear to
differ significantly from other nearby communities."
EPA Response:
EPA does not believe that there are any remaining unresolved
matters. The OUFS report is intended to address the potential
for exposure and possible risks due to direct disturbance of
the soils.
Comment:
54. Citing Page 1-12, lines 28-29, and Page 1-13, line 1 of the
OUFS, the City of San Jose questioned the accuracy of the
described acreage of the levee (8 acres). The City stated that
Appendix C, Page C-l of the OUFS cites the current area as.
being 4.2 acres, and cites the required area for the capping
alternative as being 4.0 additional acres.
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EPA Response:
The figure of 8 acres for the total existing levee is based on
measurement of the levee area as presented on maps of the site
(Harding Lawson Assoc., 1987), supported by aerial photographs
and site verification. The four acres referred to in Appendix
C by the U.S. Fish and Wildlife Service refers only to the area
of wetland affected by the ring levee, as determined by the
Corps of Engineers in a letter to D. Kent Dewell (Director of
Public Works of San Jose).
Comment:
55. Citing Page 1-21, lines 24-25 of the OUFS, the City of San Jose
asserted that the statement that it appears likely, based on
the TEM results, that the ring levee was contributing asbestos
to the ambient air in Alviso during windy periods "seems to be
an unsupported assumption or opinion." The City continued:
"The testing cited does not appear to be designed to
differentiate between different sources of asbestos dust.
Considering the widespread indiscriminate dumping of asbestos
containing wastes that have taken place, the large amount of
unpaved dirt roads and commercial areas known to contain
asbestos dust, and the lack of control of this source of re-
entrained dust generated by both wind and vehicle traffic, it
would seem appropriate to assume that other sources, besides
the levee, are principal contributors. The City also stated
that it is not clear how, based on the TEM results cited, the
conclusion stated, 'it appears likely that the ring levee was
contributing asbestos', is supported by evidence." The City
further noted that evidence refuting EPA's conclusion that "it
appears likely that the ring levee was contributing asbestos to
the ambient air in Alviso during windy periods" is given on
Page 1-21, lines 29-30 of the OUFS: "Results of the PCLM, or
optical microscopy, analysis showed opposite results (Table 1-
2)."
EPA Response:
The statement was made that the ring levee appeared to be
contributing asbestos to the ambient air in Alviso based on the
TEM results (Page 1-21). The Woodward-Clyde results show that
the TEM data for total asbestos fibers are higher downwind of
the levee than upwind. This is true approximately 80 percent
of the time, based on the Woodward-Clyde statistical analysis
of the data. The PCM data do not show this relationship, since
the higher fiber counts were observed upwind of the levee. It
is important to note that the number of PCM fibers counted was
very low, which calls into question the accuracy of the results
(discussed by Woodward-Clyde). That is, the smaller the number
of fibers counted, the greater the likelihood that the fibers
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observed, say 1 or 2 fibers, are caused by blank contamination
and are not truly the result of the sampling event.
The acknowledged uncertainty of the Woodward-Clyde data
indicates that wind erosion may not be the dominant mechanism
of asbestos entrainment. The preliminary data from the RI
study appear to indicate that specific mechanical disturbances,
rather Chan wind or weather conditions, are most likely the
cause of asbestos release to the air.
Comment:
56. The City of San Jose questioned the results of the
upwind/downwind air monitoring. The City specifically cited
Page 1-21, lines 24-27 of the OUFS. which states that "the
downwind concentrations were less than, or equal to, the
concentrations upwind of the dike." Furthermore, the City
cited the OUFS supplemental sheet, dated April 28, 1988, which
describes the results of additional air monitoring. The
supplemental sheet describes the concentration variances
between upwind and downwind samples as being "not statistically
significant," and indicates that "the experiments are not
considered conclusive at this time and the data are being
- reanalyzed..." The City of San Jose asserted that the OUFS
supplemental sheet fails to identify specifically which
experiments are inconclusive, which data are being reanalyzed,
and why. The City of San Jose stated that "EPA's failure to
identify these experiments, or to say why they are not
considered conclusive leaves the matter open to speculation and
denies commenters the opportunity to present arguments or
evidence on this point." The City further stated that "the
result [of this process] is a denial of an effective
opportunity to comment, a denial of due process."
EPA Response:
The previous response describes Woodward-Clyde's observed
differences between upwind/downwind air results for TEM versus
PLM, and that, for PLM, the upwind asbestos results were often
higher. The Woodward-Clyde report very clearly points out that
the air monitoring data, both TEM and PLM, are not
statistically conclusive. The OUFS supplemental sheet refers
to both the Woodward-Clyde data and the ambient air monitoring
performed. Ambient air data also are not statistically
conclusive, in that they do not show a clear difference between
asbestos concentration upwind of town and within the town
itself. It is the CDM air data collected during the RI
investigation that are being reanalyzed. Because of the
uncertainty in the CDM air data, and the fact that CDM
monitored the community as a whole and not the ring levee
specifically, these data were not included in the OUFS. The
City will have an opportunity to comment on these results when
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Che RI/FS for the overall community is released for public
comment in late 1988.
Comment:
57. Referring to Page 2-2, lines 18-20 of the OUFS, the City of San
Jose stated that this "seems to highlight the scientific and
policy dilemma faced by EPA. A no-threshold exposure value for
which there is no danger of cancer from exposure is cited...as
the level required for safety. Noting the existence of ambient
background levels in the area, the City then asked "how...can
an assessment of the efficiency of any proposed remediation
method be determined as decreasing risk to an (undefined)
'insignificant1 level?" The City finally noted that "only the
complete elimination of asbestos from the ambient environment
could be considered as a zero threshold or 'insignificant'
risk."
EPA Response:
The risk from exposure referred to on page 2-2 of the OUFS is
the incremental risk posed by inhalation of asbestos in the
levee soils, over and above the ambient background risk which
exists not only in Alviso but in most urban areas. EPA's goal
is to remediate a specific source to reduce cancer risk to an
insignificant amount above the background risk.
Comment:
58. Citing Page 2-2, line 20 of the OUFS, the City of San Jose
stated that this "is not a valid worst-case assumption for the
simple reason that we know, at least with some statistical
certainty, that the highest level observed is not a valid
likely mean value. Even a worst-case assumption has to be
tempered by some reasonable estimate of the likely percent of
asbestos present in the fill. A worst-case assumption does not
allow choosing a discrete data that may fit a previously taken
assumption or unrecognized bias."
EPA Response:
The statement referred to (Page 2-2, line 20) is simply a
statement of the presence of asbestos. The statement "...up
to 40 percent..." is clear that this is a maximum value. This
value is not used as a worst-case assumption to determine risk.
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Comment:
59. The City of San Jose, citing Page 2-2, line 20 of the OUFS,
suggested that "if this section is to serve some function,
[then] the worst-case assumption [should] be based on a
concentration based on the mean, not the extreme of the
existing data."
EPA Response:
As presented in the previous response, the maximum value of 40
percent asbestos serves only as an illustration of the presence
of asbestos in the context of the discussion of asbestos
toxicity.
Comment:
60. The City of San Jose questioned the logic of projecting a
lifetime exposure and a "predicted level in air" from asbestos
concentration data for soil. The City further stated that the
OUFS "contains no substantiation for that assumption."
EPA Response:
It is an obvious fact that asbestos fibers in air are released
from an asbestos source, whether serpentine rock, serpentine-
containing soils, or manufactured products with asbestos
fibers. The OUFS contains ample substantiation of this fact in
the form of the DHS experiments, which show a release of fibers
into air during disturbance of soils containing asbestos. The
EPA Region IX Air Guideline quoted on page 2-2 was included
only as support for the statements concerning asbestos
toxicity. In fact, lifetime exposures were examined using air,
and not soil, values, as discussed in Section 4.2 of the OUFS.
Comment:
61. Citing Page 2-4 of the OUFS, under "the description of NESHAP,"
and the text following the table, the City of San Jose stated
that "EPA's description of the NESHAP neglects to mention that
there is apparently no prohibition which addresses the use of
rocks and soil which contain chrysotile asbestos in its
naturally occurring form from being used as fill material for
levees, dikes, roadbeds, or any other purpose." The City
further stated that "conceptually, it would seem that the rocks
and soil in the levee are no different from any other
serpentine rocks and soil in their natural setting."
Citing the lack of "regulations or health standards that apply
directly to outdoor air asbestos," and asserting that there is
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"conceptually" no difference between the levee material and
other serpentine rocks and soil, the City of San Jose stated
that "to order action against the levee, and not other sites
where serpentine rocks and soil are found, without stating a
rationale for making the distinction, is not justified. The
OUFS contains no such rationale."
EPA Response:
EPA's concern and justification for action is based on the
proximity of the town's residents to the levee, as opposed to
other asbestos situations where people do not live nearby.
Also, the levee is no longer a naturally-occurring outcrop or
occurrence of asbestos, since it has been quarried, transported
and placed in a new location. Thus, §104(a)(l) of CERCLA, 42
U.S.C. §9601(a)(l) provides the authority for EPA to remedy the
situation here.
Comment:
62. The City of San Jose, citing Page 2-24, lines 18-21 of the
OUFS, which states that regulations require the use of RCRA
landfills for possible disposal of the levee material, stated
that this "constitutes a basic underlying flaw...in both EPA's
approach to the general problem of naturally occurring asbestos
and the...OUFS." The City stated that this "represents an
illogical interpretation of policy." Noting that EPA
classifies asbestos as a carcinogen, the City asserted that
"the naturally occurring forms of asbestos found in the soil at
the site do not require the stringent criteria and controls
needed for final disposal that other hazardous wastes present."
Furthermore, noting that many other states would not consider
the levee material a hazardous waste, the City asserted that
"the appropriate long-term disposal requirement for asbestos -
containing soil is burial, and that asbestos-containing soil
"does not require specific liners or other controls at the
burial site because asbestos is both chemically inert and
insoluble in water so that migration is not a problem." The
City supported this assertion by noting the "enormous amounts
of this material currently safely contained by nature..." The
City further stated that "limiting the study to consideration
of RCRA landfills is a failure to consider reasonable
alternatives." The City stated that "removal and placement of
the material in a burial site is an option which must be
evaluated if the study is to be complete." Without endorsing
any specific option, the City suggested that using the levee
material as fill for a freeway construction project should be
considered "especially...if EPA flooding/engineering studies
suggest that one of the cover alternatives would pose a risk of
future flood damage." Finally, the City of San Jose stated
that, in addition to non-RCRA landfills and freeway fill, "a
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non-landfill burial site which will provide a final resting
place for the material, such as a quarry, should also be
considered."
EPA Response:
As stated in a previous response, EPA has determined that
placement of the levee in a RCRA-approved landfill, if off-
site disposal is chosen, is not necessary. However, a
California certified Class II landfill would be required as a
disposal site, since asbestos is classified as a toxic
contaminant by the State California Administrative Code, Title
22, Section 66680(c). The requirements of Class II disposal,
as promulgated under California law, would apply to the levee.
Any disposal site other than a Class II landfill, such as a
quarry or construction site, would not be feasible under the
State law, absent a waiver.
Comment:
63. The City of San Jose stated that "the fact that the EPA has to
discard what may be the safest and best long-term solution,
removal and burial, because EPA's administrative requirements
are inflexible, has extreme implications for this project."
The City asserted that EPA must give consideration to disposing
asbestos-containing soil in non-RCRA landfills. 'Moreover, the
City"stated that it "submits that disposal in a RCRA landfill
is not required" under 40 CFR §300.65, and that Class II or
Class III landfills should be considered for disposal of the
levee material. Finally, the City stated that "the fact that
asbestos-containing soils are routinely being excavated and
used within this region and throughout the state, without
similar controls or concern only confounds public perception of
this issue."
EPA Response:
Please refer to the previous response, which addresses
appropriate disposal locations.
Comment:
64. Referring to Page 3-15, lines 20-22 of the OUFS, the City of
San Jose asserted that the statement "seems to be an
unsupported assumption." In support of this assertion, the
City stated that appropriate mitigation measures for dust
generation from excavation "are routinely used," and that "the
excavation and transport of material should not present a
health threat."
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EPA Response:
The alternative for off-site disposal has the greatest
potential for risk to residents due to extensive excavation,
loading, and hauling activities. However, if this alternative
were implemented, every available and appropriate measure would
be taken to minimize these risks. Oust mitigation measures
were not detailed in the OUFS, since they will be part of the
actual design phase of the project.
Comment:
65. In reference to the potential removal of the levee, the City of
San Jose stated that "serpentine rocks and soil are routinely
excavated and hauled..." Furthermore, the City stated that "no
restrictions or controls have been set by EPA which covers
those operations," and that "if controls are needed, they
should be promulgated." Finally, the City stated that "the
inference to be drawn from the failure to promulgate such
regulations is that none are needed."
EPA Response:
Refer to the response to comment 61. EPA and the State of
California are studying the statewide asbestos problem.
Regulations to deal with the statewide asbestos problem are
being evaluated at this time.
Comment:
66. Citing Page 3-17, lines 17-19 of the OUFS, and the removal
costs cited in the Containment Alternatives Summary Table on
Page 3-18, the City of San Jose noted an apparent inconsistency
between the text and the data in the table. The text states
that the removal option ($7,969,900) is seven times more
expensive than "similar options" ($1,380,600 to $2,950,400),
and the City stated that this is "an obvious error in
mathematical calculation." Referring to this apparent incon-
sistency, the City stated that this "raises the question as to
what other errors in calculation, perhaps less obvious, are
within the body of this study and have formed the basis for
some of the calculations and recommendations contained in the
document."
EPA Response:
Page 3-17 of the OUFS states that the "...capital costs
[emphasis added] are seven times more [for the off-site
landfill option] than similar alternatives." If the capital
costs in Table 3-1 are compared, it is obvious that the off-
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site landfill is between 5 to 7 times higher than the Soil
Cover and Gunite Cover alternatives. No mathematical error is
present.
Comment:
67. Citing Page 3-20, lines 17-19 of the OUFS, the City of San Jose
stated that "there is no evidence known to the City to suggest
that 'this fixation product' is present in the operable unit
under discussion, i.e., the Ring Levee. To the City's
knowledge, the only form of asbestos in the levee is naturally
occurring chrysotile asbestos found in its natural condition in
the rocks and soil in the levee." The City stated that
"unfortunately, the quoted language illustrates shortcomings in
the OUFS; the failure to differentiate between types of
asbestos, and the failure to attempt to identify the source or
origin of the asbestos being discussed." Moreover, the City of
San Jose noted that the levee is a "discrete, identifiable
portion of the site," and stated that "the failure to
specifically identify 'asbestos' and its source, renders this
portion of the OUFS misleading."
EPA Response:
The OUFS must be consistent with the remedial options being
considered for the remainder of the South Bay Asbestos site.
Since fixation products, i.e., cement/asbestos pipe, are
present in other parts of the site, it would be difficult to
Justify fixation for the ring levee when fixation products are
an asbestos source elsewhere in Alviso. Regardless of the
origin of the asbestos, whether manufactured or naturally-
occurring in soils, the fibers potentially liberated to the air
pose the same risk, in EPA's opinion, to residents in Alviso.
EPA is aware that cement/asbestos pipe or fixation products are
not present in the levee.
Comment:
68. Citing Page 3-27, lines 32-34 of the OUFS, the City of San Jose
stated that the cost estimate "seems to be totally
unsupported." The City further stated that "an estimate range
of cost is first cited, then ignored for no apparent reason and
with no explanation. Based on the information provided, the
estimated range of costs for the Plasma Fusion alternative
would be $20,436,960 to $95,372,480."
EPA Response:
The statement on page 3-27 has been misinterpreted. The second
sentence, under the heading "Cost" states: "Estimates of total
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project costs [emphasis added]... range from $300 to $1,400 per
cubic yard..." The next sentence then begins, "Based on a
treatment cost [emphasis added] of $125 per cubic yard..." The
costs estimated in the OUFS are based on $125 per cubic yard
for treatment, plus costs for mobilization, capital equipment,
levee removal, hauling, treatment, disposal, reconstruction,
restoration, and demobilization, for a total project cost of
$283 per cubic yard (top of page 3-28). This compares closely
with the low end of the range referenced by the University of
Minnesota on page 3-27.
Comment:
69. The City of San Jose stated that no authority is cited for Page
4-5, lines 3-5 of the OUFS: "filling activities to provide
buildable land have claimed the majority of the Bay marshes
over the last 100 years." The City further asserted that the
statement may not be justified. The City suggested that 80% of
the "lost wetlands" have been converted to "salt ponds or
similar uses," and "only 11% have been converted to industrial
uses." Moreover, the City stated its belief that "the San
Francisco International Airport, Oakland International and the
U.S. Naval Air Station, Alameda, account for nearly all of the
11%."
EPA Response:
Reference for the statement that the majority of the Bay
wetlands have been lost to filling comes from Page II-1 of the
Alviso Ring Levee Environmental Impact Report (Ruth and Going,
1984), prepared for the City of San Jose. EPA included the.
statement to reinforce U.S. Fish and Wildlife Service and Army
Corps of Engineers concern about wetlands losses. Research
into the exact disposition of lost wetlands throughout the Bay
is outside the scope of this Responsiveness Summary.
Comment:
70. The City of San Jose asserted that violations identified on
Page 4-5, lines 3-5 of the OUFS are inappropriate. The City
suggested that "in the absence of notice and a hearing,
followed by an adjudication, it is premature for the Agency to
state flatly, without qualification, that 'violations have
occurred.1" The City further stated that "in order to preserve
its defenses, and to avoid any adverse inferences which might
be drawn from failure to comment, the City of San Jose, on its
own behalf, and on behalf of its present and former officers,
employees and agents, specifically denies any and all
'violations' referred to in the OUFS, expressly or by
implication."
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EPA Response:
EPA acknowledges this comment. However, EPA understands that
San Jose has not obtained the appropriate Army Corps of
Engineers "after the fact" permit for construction of the ring
levee, nor has San Jose implemented mitigation for the loss of
wetlands and endangered species habitat since levee
construction in 1983.
Comment:
71. Referring to the U.S. Fish and Wildlife Service calculations
for lost wetland acreage given on Page 4-6, lines 5-7 of the
OUFS, the City of San Jose stated "for the record, and to
preserve its objections, the City disagrees with the USF&W
calculations." The City submitted that the calculations "are
without demonstrated justification in law or fact."
EPA Response:
The U.S. Fish and Wildlife Service submitted a Draft Habitat
Evaluation Procedure (HEP) calculation to identify for the City
of San Jose and EPA what possible acreage could be required for
mitigation. These calculations were intended only for
discussion purposes. The U.S. Fish and Wildlife Service has
not provided a final acreage calculation to date.
Comment:
72. Citing Page 4-8, lines 7-10 and 32-34 of the OUFS. the City of
San Jose submitted that "the 'toy truck' experiment has not
been demonstrated to be a valid method and that it has not been
shown to have any scientific validity. The City disagrees that
the 'toy truck* experiment has been shown to be a 'plausible
worst case.'"
EPA Response:
The toy truck experiment was selected as the "plausible worst
case" because it was an attempt by the State to demonstrate
the risk to a child playing in the dirt, without the use of a
fan to blow the dirt. EPA acknowledges that the DHS
experiments do not have valid quality control/quality assurance
checks, such as blanks or duplicate samples. However, the
plausible worst case risk calculation results in a very wide
range of risks (depending on how "risk fibers" or fibers
greater than 5 microns are determined) which serves to indicate
the potential for risk.
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Comment:
73. Referring to Page 4-8, lines 32-34 of the OUFS, the City of San
Jose stated that "the OUFS contains no evidence to support
[the] assumption" that a child would play on the levee for 5
hours every day for 6 days of each week of the summer months.
The City thus suggested that "the exposure assumption has not
been shown to have a valid basis," and stated that "the
exposure assumptions should be redone."
EPA Response:
The assumptions used for the exposure scenario are, in EPA's
opinion, reasonable, and are supported by photographed
observations of children playing at the site. Guidelines for
estimating exposure to children in such a situation are
presented in EPA's Superfund Public Health Evaluation Manual
(EPA, 1986b) and Final Guidelines for Carcinogenic Risk
Assessment (Federal Register, 1986b). EPA followed these
guidelines in estimating exposure here.
Comment:
74. Citing Page 4-14, line 2 of the OUFS ("No Action would not be
acceptable to the community given the emergency remedial work
performed to date and the information EPA has provided on the
dangers of asbestos."), the City of San Jose asserted that the
statement "seems to be unsupported opinion." The City
continued: "The community has questioned, at the recent
public meeting, why EPA has taken no action regarding the
obvious sources of dust, the community streets and truck yards,
but is [sic] seemed apparent that they had little knowledge
regarding the 'remedial work performed to date* (assuming this
is a reference to the polymer spraying)."
EPA Response:
EPA based the statements regarding community acceptance on the
input and comments gathered from residents throughout the
project. Because of the work performed to date at the site,
and the health warnings that EPA has issued since 1985, EPA is
convinced that the residents would not accept No Action. The
fact that comments were raised at the Public Meeting (held
April 28, 1988) about EPA's lack of response regarding the
truck yards and the streets indicates the public expectations
of action at the site. A fact sheet announcing that the ring
levee would be sprayed with polymer to prevent dust migration
was distributed in June 1987.
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Comment:
75. Citing Page 4-14, lines 10-11 of the OUFS, the City of San Jose
stated that "the unidentified 'local agencies' and the nature
of their 'expressed concerns' should be identified in the OUFS,
and opportunity to address their concerns should be permitted.
Failure to identify them, and to permit comment, denies
procedural due process to the PRPs."
EPA Response:
The local agencies referred to on page 4-14 and throughout the
report include the California Department of Health Services,
Santa Clara County Public Health Department, the Santa Clara
Valley Water District, and the Bay Area Air Quality Management
District. Records of communication between these agencies and
EPA or the State Department of Health Services are included in
the Administrative Record for review.
Comment:
76. The City of San Jose stated that it is "most concerned that the
opinions of the community be considered." Furthermore, citing
Page 4-19, line 14 of the OUFS, which refers to community
acceptance of the soil cover, the City stated that
"documentation of public meetings in which such opinions were
expressed should be provided."
EPA Response:
EPA is likewise very concerned that the community's input and
concerns be addressed regarding any remedial actions. EPA has
conducted a series of public meetings, and has distributed
information using flyers and fact sheets throughout the
project. For a complete listing of community relations
activities conducted by EPA to date, see Section 1 of this
Responsiveness Summary, "Background on Community Involvement
and Concerns."
Comment:
77, The City of San Jose asserted that the statement regarding
asbestos concentrations in Alviso given on Page B-19, lines 34-
37 of the OUFS should be considered with the statement in the
April 28, 1988 OUFS supplemental sheet that "the levels of
ambient airborne asbestos in the community at present do not
appear to differ significantly from other nearby communities."
The City further asserted that "these statements suggest that
selection of a "remedy1 before full evaluation of necessity and
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appropriateness of the remedy has been evaluated would be
premature . '*
EPA Response:
The remedy has been fully evaluated In accordance with the
guidance regulations in 40 CFR §300.68, and the current EPA
guidance as cited on page 2-1 of the OUFS. The statements on
page B-19 of the OUFS were not made by EPA, but rather by DHS
in 1985. The OUFS supplemental sheet is the more current
reference, and reflects the recent RI/FS air monitoring data
which show no conclusive statistical difference between upwind
and downwind air stations. However, since EPA believes that
the greatest risk of asbestos exposure is through mechanical
disturbance of soils, this ambient air data does not directly
impact this remedy selection process.
Comment:
78. The City of San Jose asserted that Page 1-2, line 13 of the
OUFS "demonstrates, in EPA's own language, that 'major
uncertainties' continue to exist with respect to health
criteria for exposure to asbestos via inhalation." Referring
to these uncertainties, and language in the OUFS supplemental
sheet, the City further suggested that it is inappropriate to
select a permanent remedy until "the 'major uncertainties' are
resolved." The City stated that it "urges the EPA to take
prompt action to resolve the 'major uncertainties' and to make
its selection, once the 'major uncertainties' are resolved."
EPA Response:
The "major uncertainties" statement referred to on page 1-2 of
the Toxicity Profile for Asbestos, presented in Appendix B,
must be viewed in the context of the report. The uncertainties
are associated with the development of health criteria. There
is no uncertainty that asbestos inhalation causes adverse
health effects. Principally, asbestos health experts are
divided on the issue of what size of fiber causes the greatest
risk. Various medical studies differ in their reporting of
fiber sizes, size distributions, fiber types, and so on. The
uncertainty faced by the medical community is what criteria are
most relevant to health effects. For example, should total
fibers inhaled be the primary indication of risk? Are fibers
longer than 5 microns more hazardous than short fibers? What
is the best way to convert occupational setting fiber
measurements to calculate (typically lower) ambient air risks?
These uncertainties are operational problems that do not change
the central fact of the carcinogenic potential of asbestos.
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Comment:
79. Citing Page 2-1, line 32, and Page 2-2. lines 1-2 of the OUFS.
regarding the health effects of asbestos, the City of San Jose
stated that "the language illustrates the need to closely
examine the sweeping generalizations currently extant regarding
asbestos. The statement that 'asbestosis is primarily involved
in occupationally exposed individuals following long-term
exposure to high levels of asbestos1 would seem to be more to
the point." The City further asserted that "the Alviso Ring
Levee does not involve a risk of long-term occupational
exposure to high levels of asbestos, and must be evaluated
differently."
EPA Response:
The statement on page 2-1 and 2-2 of the Toxicity Profile for
Asbestos in Appendix B has been misinterpreted. What is stated
in Appendix B is that asbestosis (fibrosis of the lung tissue)
is primarily caused by long-term occupational exposure to high
asbestos levels. Asbestosis is a non-cancerous disease which
is not a factor in the general population. Therefore, it was
not discussed further in the Profile.
Comment:
80. The City of San Jose cited Page 3-5, line 7 of the OUFS:
...fine chrysotile fibers were not studied because they could
not be measured..." Referring to this statement, the City
asserted that "the... language illustrates the points that not
all 'asbestos* studies are studies of the same fibers, and that
results of a given study are not necessarily applicable to all
forms of asbestos, particularly chrysotile asbestos." The City
thus submitted that "the health effects and exposure
assumptions in the OUFS should be reevaluated, using studies
specific to chrysotile."
EPA Response:
The focus of the studies referred to in Appendix B of the OUFS,
the Toxicity Profile, is investigation of why and how asbestos
fibers cause diseases of the lung. It is true that the various
medical studies of asbestos disease have not always measured
the same things, such as number of small fibers, or the aspect
ratio of the fiber (length to width), or asbestos type. But,
as addressed in a previous comment and elsewhere in this
Responsiveness Summary (see the response to comment 7), high
rates of lung cancer have been related to all types of
asbestos, including chrysotile.
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Comment:
81. Citing Page 3-6, lines 13, 18-19, and 22-25 of the OUFS, which
refer to health risks between different asbestos fiber types,
the City of San Jose stated the following: "It is submitted
that chrysotile's fiber size and degradation character,
especially in nonoccupational settings are significant factors
which merit closer attention." Moreover, San Jose asserted
that the OUFS fails to make the distinction between human
health effects related to high and low ambient airborne levels
of chrysotile asbestos.
EPA Response:
It is true that there are many more studies on the effects of
asbestos, including chrysotile, on workers than-on non-
occupationally exposed individuals. However, EPA calculates
risk for a carcinogen by assuming that there is no "safe" level
or "threshold value", that is, that any exposure to a
carcinogen, no matter how small, could potentially cause
cancer. Thus the cancer rates in high exposure, worker
populations are extrapolated to estimate much lower cancer
rates in the lower-exposure general population. This is
explained in greater detail in EPA's Superfund Public Health
Evaluation Manual (EPA 540/1-86-060). This process of
predicting risk from lower rates of exposure by extrapolating
risk from higher rates of exposure is implied in the discussion
on page 3-6 of the OUFS.
Comment:
82. Referring to Page 3-7, lines 1-6 and lines 16-17 of the OUFS,
the City of San Jose asserted that "to impose expensive
requirements which purport to solve a problem allegedly created
by a naturally occurring substance found in rocks and soil in
its natural state in widespread areas, before the 'considerable
controversy' is resolved, and the differential risks are
understood, is to act on the basis of insufficient information.
In this setting, remedial orders would be arbitrary and
capricious."
EPA Response:
As stated in the response to comment 78, there is no question
that inhalation of asbestos fibers causes cancer in humans.
Thus, EPA has taken the position that all asbestos fiber types
should be considered hazardous to be protective of human
health. CERCLA states that response actions may be undertaken
if EPA has reason to believe that illness or disease may be
attributable to exposure to a hazardous substance (CERCLA
§104(B)(1), 42 U.S.C. §9604(B)(1)). Since asbestos fibers are
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being released into the atmosphere from the levee, EPA may act,
consistent with the NCP, to remedy the situation.
Comment:
83. Citing Page 4-1, lines 5-8, lines 23-28, and lines 29-30, and
Page 4-2, lines 1-2 of the OUFS, relating to asbestos health
risks, the City of San Jose stated that the language
"illustrates the limitations of the data available." Noting
these uncertainties, and citing the statement in the OUFS
supplemental sheet that the Alviso concentrations "do not
differ significantly from other nearby communities," the City
asserted that "to order remedial action before the OUFS
contains data adequate to justify the remedial action
contemplated would be to act on 'inconclusive or equivocal'
data. Given these limitations, and the limited, inconclusive,
equivocal information presented in the OUFS, a decision based
on the OUFS would be arbitrary and capricious."
EPA Response:
In response to the cited references, the language clearly
states that inhalation exposure to asbestos has been
established as a cancer risk; the "uncertainty" mentioned is
the carcinogenicity of ingested asbestos [emphasis added].
Pursuant to CERCLA §104, any remedial action can be undertaken
at the site if the threat [emphasis added] of a release is
present; the OUFS has established the threat of an asbestos
release.
Comment:
84. The City of San Jose cited Page 4-2, line 1 of the OUFS as
additional evidence "that the nonoccupational studies are
'inconclusive and equivocal.'" The City asserted that
"selection of a permanent remedy should be based on
conclusive. unequivocal studies," and suggested that the
selection process include such studies.
EPA Response:
As stated on page 4-2 of the Toxicity Profile for Asbestos, the
studies of non-occupational asbestos exposure are inconclusive;
no definitive or unequivocal studies exist to incorporate into
the OUFS. However, based on the fact that the same hazardous
substance (asbestos) is present here, and that occupational
studies have demonstrated without question that asbestos is a
human carcinogen, EPA believes that at least a potential risk
exists in Alviso from the ring levee. CERCLA §104, U.S.C.
§9604, provides that EPA may respond to potential, as well as
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proven, risks to public health, welfare, or the environment.
EPA is proceeding conservatively to protect the public health,
by assuming that the evidence for worker exposure and asbestos
disease also applies to ambient situations, although at lower
rates.
Comment:
85. The City of San Jose cited Page 4-7, lines 24-25 of the OUFS as
additional evidence of varying risks for different asbestos
types, and noted that "chrysotile seems to be associated with
the lowest risks."
EPA Response:
The City has misinterpreted the citation on page 4-7 of the
Toxicity Profile. The discussion on page 4-7 is related to
gastrointestinal cancers from asbestos. The statement is made
that amphiboles may pose a greater risk than chrysotile for
mesothelioma of the p^rlT^TI?11!?! (lining of the abdomen). The
next sentence then states "No clear risk differences [emphasis
added] related to fiber type has been demonstrated for lung
cancer.
Comment:
86. Citing Page 4-8, lines 5-7 and lines 24-25 of the OUFS, the
City of San Jose stated that "the comment as to the
vulnerability of chrysotile (to dissolve in acid, to split into
smaller fibers, or to dissolve in the lung) indicates that the
risks of chrysotile exposure may well be lower than for other
forms of asbestos." Moreover, the City asserted that "the
'limited1 information as to the occurrence of asbestos-related
diseases among persons not directly exposed at the work place1
suggests that additional information should be obtained as soon
as possible. As soon as it becomes available, but not before,
EPA should select a remedy, based on that information."
EPA Response:
In order to answer the uncertainties regarding the differences
in fiber type and disease response, a very expensive and
lengthy epidemiological study would be required involving
extensive biopsy studies of lung tissue from asbestos disease
victims. That type of original research involving many years
of study is not feasible as a requirement for remedial action.
EPA may, under CERCLA §104, select remedial action based on the
threat of a release of a known carcinogen.
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Comment:
87. Citing Page 6-6, lines 11-12 and lines 17-18 of the OUFS, the
City of San Jose again asserted that "it appears that the
generalized statements in the OUFS as to the risks posed by
asbestos may not apply to the risk posed by the naturally
occurring chrysotile asbestos in the levee. There is a
differential, and it should be taken into account that a
policy which fails to consider the differences in the risks is
deficient. For that reason, the OUFS is inadequate, as this
differential has not been addressed."
EPA Response:
As stated in previous responses, EPA regards all forms of
asbestos as hazardous substances under CERCLA. See 40 CFR
§302.4. Even if some "differential" may exist, it is
undisputable that chrysotile asbestos is a known human
carcinogen. EPA has considered the unique facts of asbestos in
the levee and has concluded that it poses a potential risk to
human health, welfare, and the environment. The potential
differential, therefore, has been taken into account.
Comment:
88. Citing Page 7-1, lines 8-13 and 19-20 of the OUFS, the City of
San Jose stated that "the blanket indictment of asbestos is not
completely justified. EPA should attempt to conduct studies
evaluating the individual asbestos materials. Only when this
is done can the OUFS serve as a basis for rational decision."
EPA Response:
Please see the responses to the previous two comments regarding
evaluation of the effects of asbestos type.
Comment:
89. Citing Page C-l, lines 13-18 of the OUFS, the City of San Jose
suggested that "the specific statutory basis, and all relevant
implementing regulations, should be presented as a cornerstone
of the [U.S. Fish and Wildlife Service mitigation] policy," if
the policy is to be observed. The City further asserted that
"a reference to 'policy' without providing specific authority
as the basis of the policy, is an inadequate foundation for
exactions. Citation to 'policy' without citing authority,
requires commenters to engage in speculations as to the basis
for the 'policy,' and denies them the opportunity to
effectively challenge the policy."
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EPA Response:
The U.S. Fish and Wildlife Service mitigation policy referred
to on page C-l of Appendix C was cited in Chapter 2 of the
OUFS in Table 2-1 under Federal ARARs on page 2-16. The
mitigation policy is contained in Federal Register Volume 46,
No. 15, pages 7644-7663, and establishes mitigation goals to
avoid critical habitat loss. In addition, mitigation is
discussed in the Endangered Species Act (16 U.S.C. §1531, 50
CFR §200) and The National Environmental Policy Act (42 U.S.C.
§§4332-4370), as discussed in the letter to EPA from the U.S.
Fish and Wildlife Service included in Appendix C. The actual
draft mitigation plan contained in Appendix C was prepared in
accordance with U.S. Fish and Wildlife Service, Division of
Ecological Services, guidance document ESM 102 entitled
"Habitat Evaluation Procedures" (HEP).
Comment:
90. Citing Page C-l, lines 13-18 of the OUFS, the City of San Jose
stated that "to the extent that the creation of new wetlands is
contemplated as a remedial requirement, the U.S. Fish and
Wildlife Service should be required to present evidence that
'conversion-into-wetlands1 projects are effective, and that the
uplands loss is justified." The City asserts that the OUFS
fails to address these points, and that it is deficient until
is does.
EPA Response:
Pursuant to CERCLA §121, 42 U.S.C. §9621, EPA is required to
take into account all applicable, relevant, and appropriate
regulatory requirements (ARARs) in selecting a remedy for each
Superfund site. The wetlands requirements are ARARs. CERCLA
does not require the U.S. Fish and Wildlife Service to "present
evidence" of effectiveness or a discussion of the
"justification" of the wetlands conversion. Thus, the OUFS is
not deficient. Please refer to the response to comment 89.
Comment:
91. Citing Page C-l, lines 13-18 of the OUFS, the City of San Jose
stated that the 8 acres of "lost wetlands" cited conflicts with
an Army Corps of Engineers estimate of 4.2 acres lost by
construction of the levee.
EPA Response:
The statement on Page C-l of Appendix C of the OUFS that
"wetlands must be identified to offset the loss of
approximately 8 acres of land to the levee" should read: "to
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offset the loss of approximately 4.2 acres of wetlands to the
original levee, and 1.5 acres of wetlands due to the proposed
cover alternatives" [discussed in Appendix F of the OUFS).
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III(C) COMMENTS MADE BY GOVERNMENT AGENCIES:
Comments Submitted by Federal Agencies:
Comment:
92. The U.S. Fish and Wildlife Service expressed concern about the
statements in the OUFS regarding the future of the unauthorized
fill and the failure of this effort to provide mitigation to
offset wetland losses incurred by placement of the unauthorized
fill placed in 1983 for the clean-up efforts.
EPA Response:
EPA feels that the best remedial option for the levee is
placement of a cover to prevent asbestos exposure, rather than
removal of the levee. The future of the levee and the
engineered cover will be determined by the City of San Jose,
who will be responsible for long-term maintenance after
completion of the cover. EPA is currently negotiating with the
U.S. Fish and Wildlife Service and the City of San Jose to
designate lands for mitigation, to offset the loss of wetlands
due to the unauthorized fill, as described on page C-l of
Appendix C. Since specific land areas have not been identified
for mitigation, the costs involved could not be discussed in
detail in the OUFS.
Comment:
93. The U.S. Fish and Wildlife Service expressed concern about the
use of draft technical information pertaining to mitigation,
which was provided earlier by the Service for the temporary
solution (i.e., emergency soil capping) proposed by EPA.
EPA Response:
The draft Technical Mitigation Plan prepared by the U.S. Fish
and Wildlife Service was included in Appendix C for
completeness, to demonstrate how wetlands mitigation goals are
established using the Habitat Evaluation Procedures. EPA is
aware that the plan is a draft and will be reevaluated after
the final remedy is selected.
Comment:
94. The U.S. Fish and Wildlife Service, referring to%the discussion
in the OUFS of the off-site containment alternative (Page 3-
15), stated that the sentence "(a) after the levee is removed
and replaced, the levee would have restricted use" implies that
replacement of the unauthorized levee is a foregone conclusion.
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The commenters stated that this was not so and stressed that
the asbestos clean-up program does not take the place of the
public interest review process required in the Army Corps of
Engineers regulatory program.
EPA Response:
EPA acknowledges this comment. Replacement of the levee is
subject to other government processes.
Comment:
95. The U.S. Fish and Wildlife Service, referring to the statement
on Page 4-5 of the OUFS that the Service's mitigation goal for
wetlands is no net loss of in-kind habitat values, stated that
this was incorrect. The Service's goal is no net loss of in-
kind wetland acreage or value.
EPA Response:
EPA appreciates this clarification of the statement regarding
wetlands mitigation goals.
Comment:
96. The U.S. Fish and Wildlife Service recommended removal of the
unauthorized fill and restoration of wetland values of the area
covered by the fill. In addition, the Service recommended that
mitigation be provided to offset the interim loss of wetland
values for the period the unauthorized fill was in place. The
Service further recommended removal of the material and
restoration of wetland values and the provision of mitigation
for the loss of wildlife values that has occurred to date.
EPA Response:
EPA thanks the Service for its opinion as to the best remedial
alternative. EPA is cognizant of the mitigation goals
proposed by the Service, and is working to reach agreement with
the City of San Jose so that those goals can.be met.
Comment:
97. The U.S. Fish and Wildlife Service maintained that it was
necessary for EPA to initiate consultation under the auspices
of Section 7 of the Endangered Species Act.
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EPA Response:
EPA is prepared to initiate consultation under Section 7 of the
Endangered Species Act and has been in contact with the
Service's Endangered Species liaison. EPA believes that CERCIA
§121(e) provides an exemption from "Section 7 consultation" at
this site. However, EPA will comply with the substantive
requirements of the Endangered Species Act.
Comments Submitted bv State of California Agencies:
Comment:
98. The Resources Agency of California asked that they be given an
opportunity to comment on any landftiling remedy that is not
presently one of the proposed alternatives, if there is a
possibility that such a remedy might be implemented.
EPA Response:
EPA does not anticipate that an off-site disposal or
landfilling option will be selected, due to high cost and
potential risk to residents. However, the Resources Agency
would have the opportunity to comment again if the preferred
alternative would be changed to off-site landfilling, since a
new comment period would be opened.
Comment:
99. The California Department of Fish and Game (the Department)
stated that it was the Department's policy that no project
should result in a net loss of either wetland acreage or
wetland habitat value and stressed that the chosen remedy
should incorporate measures to offset the loss of wetlands from
both the initial placement of the interim levee and from any
loss of wetlands that result from the corrective action. They
also stated that compensation should be provided for the loss
of habitat values incurred since the interim levee was
constructed.
EPA Response:
EPA is actively pursuing an agreement with the City of San Jose
and the U.S. Fish and Wildlife Service that will result in
mitigation for the levee and the remedial cover. EPA
recognizes the importance of mitigating the lost wetland area
and habitat values resulting from the filling activities.
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Comment:
100. The California Department of Fish and Game, referring to the
asbestos-contaminated nature of the dike and the fact that it
was constructed without benefit of an Army Corps of Engineers'
permit or any other public review process, recommended removal
of the dike and restoration of the impacted site to pre-project
conditions. Furthermore, they suggested that compensation for
the temporary loss of wetland habitat values that has occurred
since the dike was constructed be developed in consultation
with the Department and the U.S. Fish and Wildlife Service.
EPA Response:
EPA acknowledges the preferred alternative suggestion from the
Department of Fish and Game and notes that EPA is working with
the U.S. Fish and Wildlife Service to create an acceptable
mitigation scheme. EPA welcomes California Department of Fish
and Game's input into this process.
Comment:
101. The California Department of Fish and Game stated that if the
City of Alviso and/or the County of Santa Clara elects to
construct a dike composed of nontoxic material, such a project
should be subject to the same public review criteria as any
other similar project pursuant to the requirements of the
California Environmental Quality Act, the National
Environmental Policy Act, and the Army Corps of Engineers
Section 404 permit program.
EPA Response:
EPA acknowledges that other regulatory processes apply to
replacement of the ring levee.
Comment:
102. The Regional Water Quality Control Board (RWQCB) stated that
since this project (corrective action on the levee) will result
in a loss of wetland value, mitigation will be required under
the Regional Board's Basin Plan.
EPA Response:
EPA welcomes the input of the RWQCB in formulating an
acceptable mitigation scheme.
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Comment:
103. The RVQCB noted that Section 404 of the Clean Water Act
requires a permit from the Army Corps of Engineers prior to the
discharge of fill material to waters of the United States.
They also stated that under Section 401 of the Clean Water Act,
the RWQCB must certify that Section 404 permits issued by the
Corps comply with water quality standards established by the
State of California.
EPA Response:
CERCLA §121(e), U.S.C. §9621, provides an exemption from
permitting processes on Superfund sites; however, EPA welcomes
the RWQCB's input into the remedy process.
Comment:
104. The RWQCB questioned the impacts this project would have on the
water quality in the New Chicago Marsh and asked that they be
allowed to review management plans for this area.
EPA Response:
EPA believes that the ring levee remediation will not affect
the water quality in the New Chicago Marsh. EPA will allow the
RWQCB to review management plans for the area.
Comment:
105. The California Department of Health Services transmitted a list
of Applicable or Relevant and Appropriate Requirements (ARARs)
for the South Bay Asbestos Superfund Site to EPA on January 27,
1988. In this transmittal, the Department identified the
California Environmental Quality Act (CEQA) as an ARAR for the
site. In listing CEQA, the State commented that, "The RI/FS
will meet the applicable provisions and will be functionally
equivalent under Sec. 21080.5, so that a separate EIR may not
be required."
EPA Response:
EPA has determined that the requirements of CEQA are no more
stringent than the requirements for environmental review under
CERCLA, as amended by SARA, and thus, CEQA is not an ARAR for
this site. Pursuant to the provisions of CERCLA, the NCP, and
other Federal requirements, EPA's prescribed procedures for
evaluation of environmental impacts, selecting a remedial
action with feasible mitigation measures, and providing for
public review, are designed to ensure that the proposed action
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provides for the short-term and long-term protection of the
environment and public health and hence perform the same
function as and are substantially parallel to the State's
requirements under CEQA.
EPA will continue to cooperate with the California Department
of Health Services and other State and Federal agencies during
the design phase, to clarify further environmental review and
mitigation requirements for this project and ensure that they
are fulfilled.
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III(D) COMMENTS MADE BY OTHER INTERESTED PARTIES:
Comment:
106. Two community members felt that much discussion and little
effort was being put forth to clean up the site, and they
worried that the funding available would be spent on studies,
meetings, and analysis instead of rectifying the problem.
Specifically, it was mentioned that five years of consistent
test results and expressions of preference by the community
should be sufficient to demonstrate the correct course of
action. The commenters urged EPA to remove the contamination
and replace the levee immediately.
EPA Response:
CERC1A requires studies to document the problem and, if
necessary, implementation of remedial action after the studies
are complete. EPA is acting as quickly as possible under the
constraints of the law.
Comment:
107. Two community members noted that, as frustration levels in the
community have increased, attendance at the community meetings
and reiteration of community preferences has decreased.
EPA Response:
EPA recognizes the level of frustration within the community,
and feels much of the same frustration caused by the
requirements of the Superfund system. EPA appreciates your
input, your efforts to stay involved, and your attendance at
this meeting.
Comment:
108. Two community members, referring to Alternative 1 (the No
Action alternative), stated that this was an unacceptable
option, because it does not solve the proven health risk
problem. They also asked that the present "inaction [at the
site] be cured."
EPA Response:
EPA agrees that the No Action alternative does not solve the
potential health risk and is therefore not acceptable. EPA is
moving forward as quickly as possible to cover the levee; that
is the reason that the OUFS was prepared, as an effort to
achieve faster action on the levee.
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Comment:
109. Two community members, referring Co Alternative 3 (the Gunite
Cover alternative) in the OUFS, stated that this option is not
advantageous for three reasons: (1) asbestos fibers would
still be present, because leakage and cover deterioration would
allow asbestos to escape from under the cover, which would
exacerbate structural weakness and lead to further leakage, (2)
the "ring wall" would attract graffiti, be unsightly, and
decrease property values, and (3) the lack of vegetative cover
would present problems for wildlife.
EPA Response:
EPA appreciates the comments regarding the gunite cover. The
commencer has identified the reasons why the gunite cover was
not selected as the preferred alternative by EPA.
Comment:
110. Two community members, referring to Alternative 4 (the
Soil/Gunite Cover alternative), stated that while this option
is preferable to a gunite cover alone (Alternative 3), it
presented the same disadvantages (see above comment) in the
gunited areas. They stressed that this was made worse by the
placement of the gunite areas in the most visible areas of the
community, thus making this an unacceptable alternative.
EPA Response:
EPA appreciates these comments about the soil-gunite cover
alternative. It is true that areas of gunite would present the
problems identified in the previous comment. EPA has carefully
considered the advantages of a soil*gunite cover (primarily
ease of application) versus those for a soil (only) cover, and
has rejected the soil-gunite cover in favor of the soil cover.
Comment:
111. Two community members, referring to Alternative 2 (the Soil
Cover alternative), stated that if the soil cover were
designed, installed, and planted correctly, and there was no
wear, this option would be an improvement over the existing
ring levee. However, the commenters questioned these
assumptions.
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EPA Response:
The comments regarding the soil cover as an improvement over
the existing levee are appreciated. It is anticipated that the
cover design will be implemented properly, and that the City of
San Jose will maintain the cover through periodic inspection,
repair, and upkeep. EPA encourages the community to let the
City know the concerns about long-term maintenance.
Comment:
112. Two community members stated that, while Alternative 5 (the
Removal and Replacement alternative) was the original option
requested by the community five years ago, it was not proposed
at that time due to the risk of exposure to dust during
removal. The commenters said that they now feel the exposure
problem related to short-term risk is no longer relevant (after
years of low level exposure), and they would now support this
option.
EPA Response:
EPA believes that the principal risk to residents is not
exposure to the levee as it is weathered by wind and rain, but
rather exposure during direct mechanical disturbance. For this
reason, as well as high cost, EPA has not recommended the
removal and replacement option as the preferred alternative.
However, the input is appreciated and was carefully considered
in selecting a remedy for the levee.
Comment:
113. Two community members, referring to Alternative 5 (the Removal
and Replacement alternative), stated that this would be the
preferable option if the new ring levee could be constructed
within the easements and outside of the Wildlife Refuge, if it
would have the same aesthetic and environmental standards as
the soil-cover option, and if it was not taller than required
for basic flood protection.
EPA Response:
If removal and replacement of the levee were selected as the
remediation, the replacement levee would be constructed in the
same area and at the same height as the existing dike.
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Comment:
114. Two community members, referring to Alternative 5 (the Removal
and Replacement alternative), noted that this alternative was
presented by the community and not by EPA, as was stated in the
OUFS. They also stated that this option was absent from EPA's
discussion at the April 28, 1988 community meeting.
EPA Response:
As discussed in the OUFS, the removal and replacement option
was not carried through to the detailed screening and analysis
phase (Chapter 4), because of the risk during implementation
and high cost. EPA did describe this option in the April 28,
1988 meeting as a PRP-identified alternative.
Comment:
115. One community member asked who had the final authority over the
asbestos problem in Alviso.
EPA Response:
EPA has the final authority to select a remedy for the asbestos
contamination in the South Bay site.
Comment:
116. One community member asked who would be held accountable for
past, present, and future impacts to the community and to
private property including, realty values, construction,
restraints to property, and removal of hazardous waste from
private property.
EPA Response:
EPA has no legal authority to determine who is liable for
property value impacts. In the final remedy for the South Bay
Asbestos area, EPA will address any human health and
environmental impacts that are caused by the existence of
hazardous substances and the remedy. Ultimately, EPA and
private property owners must look to responsible parties, as
defined under CERCLA for accountability.
Comment:
117. One community member asked what "long range obligations" EPA
and the City of San Jose had to the community and to private
property owners.
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EPA Response:
EPA is obligated by Federal law to re-evaluate Superfund sites,
like Alviso, where hazardous substances remain on site, every 5
years. EPA cannot answer the question on behalf of the City of
San Jose.
Comment:
118. One community member, referring to Page 1-2 in the OUFS report,
stated that notable flood water dates should have included the
1982 Alviso flood from Coyote Creek to the storm drains.
EPA Response:
EPA appreciates the comment regarding the 1982 flood; this
information was not included in the OUFS due to an oversight.
Comment:
119. One community member, referring to the "fair market value(s)n
on Page 4-2 and 4-3 of the OUFS, stated that the figures were
incorrect with regard to land prices and suggested that they
did not represent market conditions in the area.
EPA Response:
The values for land reported in the OUFS were based on assessed
values reported by the Santa Clara County Assessor's Office,
and on information obtained on two recent real estate
transactions from a confidential source. Based on the real
estate transactions for improved industrial property, or $7.00
to $7.25 per square foot, it was assumed that typical property
values would be three times the assessed value. It was beyond
the scope of the OUFS to retain a realtor to investigate
property prices. The exact location of the easements needed,
the property owners, and cost will be determined during the
final design phase, using a surveying and title company.
Comment::
120. One community member stated that it was the general opinion of
the community that more attention has been given to fish and
wildlife than to humans.
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EPA Response:
EPA does not agree that more attention is given to fish and
wildlife than to the human residents at the site. EPA's
foremost function is to protect human health; it must also
protect the environment from long-term damage. EPA has taken
some important steps to protect Alviso residents, by spraying
the levee with polymer, removing asbestos-laden dirt, and
paving parking lots and streets. Long-term solutions such as
the levee remedy take longer to implement because of the need
to investigate their long-term effectiveness and to carefully
select the remedy that is most appropriate under the law.
Comment:
121. One community member, referring to the source of the asbestos,
asked what the position of EPA and the City of San Jose was
concerning mitigating the open pit operations at those sites.
EPA Response:
EPA is aware of the quarry which supplied the material to build
the ring levee. However, because the quarry is not part of the
Superfund site (does not fall within the boundaries), no action
is being taken there under CERCLA. The owner of the quarry,
however, is negotiating with EPA to determine the extent of
payment for the soil cover.
Comment:
122. One community member asked who initially discovered and
reported the asbestos content in the dirt.
EPA Response:
The California Department of Health Services (DHS) was the
first to find asbestos in the ring levee, and based on that
finding, initiated investigations at Alviso. Waste asbestos
product (pipe debris) was initially discovered in 1983 at
Liberty and Moffat Streets at the Guadalupe River levee during
construction by a Cal-OSHA inspector. The large amounts there
prompted DHS to sample in other areas of town, including the
ring levee.
Comment:
123. One community member asked why the City of San Jose instructed
a trucking company to haul dirt from a pit that was known to
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have asbestos-laden dirt when pits closer to Alviso have clean
dirt.
EPA Response:
It is not known why the City of San Jose selected the Raisch
quarry as the source of fill dirt. There is some evidence that
part of the ring levee may have come from a quarry or
excavation along Homestead Road, but this has not been
confirmed.
Comment:
124. One community member asked why the City of San Jose would allow
an asbestos laden pit to remain open.
EPA Response:
The City of San Jose may have no direct jurisdiction over the
operation of the Raisch quarry, and regulatory agencies have
not yet found a violation of law at the quarry.
Comment:
125. One community member questioned why the media reported that
Alviso was one of the most toxic sites in California, due to
the asbestos-laden levee, when it would appear that the pit
where the levee dirt came from would be more toxic because it
is worked daily by heavy equipment causing constant airborne
releases.
EPA Response:
The media reported the decision by DHS to list the site on the
State Superfund list, because of the State's concern that the
people living very near the levee and using the levee were
potentially at risk. The quarry, however, operates in an
industrial area with a much lesser chance for human exposure.
Comment:
126. One community member asked why the City of San Jose had not
removed the dirt when they initially discovered it was laden
with asbestos.
EPA Response:
EPA can not answer this question on behalf of the City of San
Jose.
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Comment:
127. One community member asked why money was being spent on project
managers and community relations coordinators instead of on
education for illiterates who may be using the levee but are
unaware of the dangers.
EPA Response:
EPA is attempting to inform everyone who may come in contact
with the levee about the levee's dangers, as required by
CERCIA. EPA staff costs are minor compared to the cost of the
investigation and possible remedial action.
Comment:
128. One community member asked whether asbestos is present in much
of the dirt in the [Santa Clara] Valley and on the [San
Francisco] Peninsula.
EPA Response:
EPA does not know at this time.
Comment:
129. One community member asked whether trucks were hauling
asbestos-laden dirt from a future freeway site in San Jose,
without tarps, to the pit that provided dirt for the Alviso
ring levee.
EPA Response:
EPA does not know that this time.
Comment:
130. One community member stated that the "community meetings and
newsletters seem like some kind of a smoke screen to cover up
what is really going on."
EPA Response:
Community meetings and newsletters are not a "smoke screen."
They are EPA's procedures, as set out in the NCP, for keeping a
community informed about what is going on, and for getting the
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communities input into the contamination study and remedy
selection process.
Comment:
131. One community member asked if the easements obtained during
initial levee construction are still in effect for clean-up
activities. The commenter also wondered why these easements
are so expensive.
EPA Response:
The City of San Jose obtained the construction easements for
the ring levee. San Jose has not yet told EPA whether the
easements are still effective. The price of an easement is
set by the property owner and fair market value.
Comment:
132. One community member asked if EPA would have the authority to
enter the levee if it needed an emergency repair or if there
was another major flood, and if so, whether EPA could enter the
levee to secure "environmental protection" now that there is a
known health problem at this site.
EPA Response:
EPA has the authority, pursuant to CERCLA, to repair the levee
if a release or threatened release of hazardous substances were
to re-occur.
Comment:
133. One community member, referring to a statement that EPA has no
authority or power to do anything by itself, wondered if he
brought home a Uranium 222 fuel rod, would the EPA have it
removed.
EPA Response:
EPA does have the authority to clean up releases or threatened
releases of hazardous substances to the environment, pursuant
to CERCLA, without the assistance of local or state agencies.
If you brought home uranium, EPA would have the power to remove
it if EPA determined that the situation would constitute an
actual or threatened release of a hazardous substance.
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Comment:
134. One community member asked that medical studies be done in the
area and asked to whom this request should be directed.
EPA Response:
Medical studies would be conducted, if necessary, by the State
Department of Health Services or the Santa Clara County Health
Department. Those agencies should be contacted about
performing such studies.
Comment:
135. One community member asked if there was evidence of any other
problems in this area.
EPA Response:
EPA's site studies have not uncovered any other problems on
site, such as hazardous or toxic wastes. The Alviso Oil
Company has been contacted by EPA to investigate possible
operating violations, including leaks. There is also the
possibility that underground fuel tanks, if present in the
community, could present a problem if leaks were to occur.
However, this is true of any urban area, and investigation of
fuel storage facilities was outside the scope of the asbestos
study.
Comment:
136. One community member, referring to the dust control problem
from the trucking lots, asked if oil would be preferable to
water as a dust control measure.
EPA Response:
Oil would not be an acceptable method of dust control, since
the components in oil are toxic to humans and the environment.
The oil could eventually migrate through the truck lots and
contaminate the marsh area.
Comment:
137. One community member, referring to the dust control problem
from the trucking lots, asked if it was possible to legally
require truck yards to pave their lots.
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EPA Response:
It Is possible to require the truck lot owners to pave their
lots under CERCLA regulation. EPA is currently investigating
available methods to have the lots paved.
Comment:
138. One community member asked that EPA contact the owner of the
land park and the person who owns property directly in front of
the Summerset Mobile Home Park to gain access to their property
to test for asbestos.
EPA Response:
Several soil samples were collected in Summerset Mobile Home
Park and analyzed for asbestos. Of approximately eighteen
samples collected, ten contained no detectable asbestos, six
contained 1 to 2 percent asbestos, one contained 3 percent
asbestos, and one had greater than 10 percent asbestos. EPA
believes that the trailer park area has been sampled
sufficiently to show very limited asbestos contamination. The
area between Gold Street and the trailer park is owned by the
State of California, and access for sampling was not granted,
since a fee was required for access which EPA did not pay.
During actual site clean-up for the overall site, several
samples will be collected in previously unsampled areas to
determine the necessity for clean-up.
Comment:
139. One community member, referring to the yellow asbestos warning
flags in the front driveway at the Summerset Mobile Home Park,
asked when they were put there and what was being tested.
EPA Response:
EPA has no direct knowledge of the yellow flagging in front of
the trailer park, but assumes that it was placed there by the
Santa Clara Valley Water District during the raising of the
Gold Street Bridge.
Comment:
140. One community member asked what erosion problems might EPA
foresee if soil cover was the chosen alternative.
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EPA Response:
Soil erosion is a potential problem for uncovered soil slopes.
EPA would establish a vegetable cover using native, erosion-
resistant plant species to inhibit erosion. A sprinkler system
would be installed to ensure that the vegetation could become
well-established.
Comment :
One community member wondered whether soil cover had been used
elsewhere in a similar situation.
EPA Response:
Soil cover is a common solution to contamination problems
requiring control other than excavation. Soil is commonly
installed over solid waste landfills when the landfill is no
longer in use.
Comment:
142. One community member asked why the clean-up is taking so long.
The commenter also asked why the soil was still being tested
when the OUFS states that a "numeric risk characterization is
not necessary for EPA to proceed with clean-up actions at this
site."
EPA Response:
The soil samples that have been collected were part of the
overall RI/FS and not part of the Operable Unit. EPA
acknowledges that the clean-up is taking a long time, but the
Agency is doing everything as quickly as possible under the
constraints of the law.
Comment:
143. One community member asked how bad was the asbestos situation.
EPA Response:
The RI/FS will address the entire asbestos situation and will
be released for review and comment in October, 1988.
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Comment:
144. One community member, who supports the EPA levee asbestos
removal project, urged that this go forward expeditiously, and
added that, in his opinion procrastination has, thus far,
hindered resolving the problem.
EPA Response:
EPA acknowledges this comment.
Comment:
145. One community member asked that the asbestos clean-up effort
include "making the levee less obtrusive and hideous".
EPA Response:
EPA intends to design a cover for the asbestos materials that
has the least effect possible on the community.
Comment:
146. One community member asked that the asbestos-contaminated fill
be removed and replaced by clean fill in order to form a new
levee.
EPA Response:
Please see the response to comment 112.
Comment:
147. One community member asked that the "new levee" be landscaped
with trees and other greenery, with scenic walking trails, rest
areas, and proper paving and drainage in order to prevent mud
run-off during the rainy season. This commenter believes that
these improvements will screen the obtrusion of the levees and
provide an opportunity for Alviso and other South Bay residents
to enjoy the unique characteristics of the community.
EPA Response:
EPA's powers under CERCLA allow it to eliminate or mitigate
releases and threatened releases of hazardous substances into
the environment. The Raisch Company and the City of San Jose,
as PRPs, should be contacted for further action regarding the
aesthetics of the area.
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III(E) COMMENTS MADE AT THE APRIL 28, 1988 PUBLIC MEETING
The comments and the bracketed responses, below, are consistent with the
discussions from the April 28, 1988 public meeting. However, some
aspects of remedial activities at the site have changed since April 28,
1988. For example, EPA's preferred alternative is no longer the
soil/gunite cover (as reflected in discussions during the meeting); the
preferred alternative is now the soil (only) cover. Furthermore, EPA no
longer considers a RCRA Class C landfill necessary for disposal of the
levee (if the Removal and Disposal alternative is eventually chosen).
Therefore, additional responses were added to augment the original
responses and/or to clarify EPA's position. These additions are the
unbracketed EPA responses provided below.
Comment:
148. One community member questioned whether the five clean-up
alternatives were the choice of EPA or of the community.
EPA Response:
[The five clean-up alternatives, presented in the Engineering
Evaluation/Cost Analysis, were chosen by EPA because they were
found to be protective of public health and the environment,
technically feasible, and cost-effective. The purpose of the
public comment period, including the public meeting, is to give
community members the opportunity to comment on these clean-up
alternatives. Ultimately, EPA selects a remedial alternative
based on several criteria, including community acceptance.]
Comment:
149. One community member stated that the $24,000 value placed on a
home in Alviso in EPA's study was inaccurate.
EPA Response:
The property values reported in Appendix F of the OUFS were
based on readily accessible records at the Santa Clara County
Assessor's office. A more complete title search and property
appraisal will be performed during the design phase of the
project.
Comment:
ISO. One community member asked who is responsible for the asbestos
in portions of the ring levee that are on private property.
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EPA Response:
[EPA is responsible for controlling asbestos on the ring levee,
including portions that are privately owned.] However, the
final responsibility for asbestos remediation rests with the
owner of the ring levee and the owner(s) of the property on
which the levee is located.
Comment:
151. One community member asserted that asbestos contributes to the
devaluation of property value and questioned who should be
accountable for the devaluation.
EPA Response:
[EPA will control the asbestos in those portions of the ring
levee which are on private property.] EPA is not responsible
for devaluation of private property. This is an issue that
must be decided by the court.
Comment:
152. One community member asked, in the event that EPA seals the
asbestos on private property, whether or not he could: (a)
break the seal; and (b) if so, would he be held liable for
asbestos which became airborne as a result.
EPA Response:
[Property owners would be held responsible, if, after breaking
the seal, asbestos became airborne.]
Comment:
153. One commenter stated that EPA had entered his property without
his permission. The commenter added that it was the general
opinion of the community in Alviso that EPA should remove the
ring levee, because the community is not responsible for having
placed the asbestos there.
EPA Response:
EPA attempted to obtain either written or verbal permission
from all property owners prior to conducting activities during
the RI/FS investigations. Documentation of these attempts can
be found in the Administrative Record for this site.
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[While EPA acknowledges that the property owners did not place
the asbestos in the ring levee, property owners who have
portions of the ring levee on their property (and for which EPA
will be seeking easements) are responsible for the asbestos on
their property. They may not, however, be the only responsible
party.]
Comment:
154. One commentsr, who has hauled truckloads of soil out of the
Raisch Quarry (from which the material used in the Alviso ring
levee was drawn) to areas throughout the Santa Clara Valley,
questioned why EPA was focusing on Alviso and not on other
communities as well.
EPA Response:
[EPA is aware of the asbestos in Alviso, but not elsewhere.]
Under the Superfund program, Alviso is located within the
boundaries of a specific study area, and remedial activities
are authorized only within those formal boundaries because of
concern for the health of Alviso residents. EPA is currently
investigating other areas of asbestos in the region, and is
working toward developing regulations for control of the use of
asbestos-bearing rock.
Comment:
155. This commenter (see comment 154) offered to show EPA where the
asbestos can be found in other parts of the Valley.
EPA Response:
This comment is acknowledged.
Comment:
156. One community member asked if EPA would expand the site
location if it had a map of where the other soils from the
Raisch quarry had been disposed.
EPA Response:
[EPA would ask the State, City, or County to investigate the
sites where soil from the Raisch Quarry was disposed and assess
whether EPA involvement was necessary.]
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Comment:
157. One community member asked for a verbal description of the
location of the quarry.
EPA Response:
[The Raisch Quarry is off Old Monterey Road, near the
fairgrounds, and part of Communication Hill.] After the
meeting, EPA sent this person a map depicting the location.
Comment:
158. One community member asked how the gunite cover would increase
the flood control function and erosion resistance to the levee
when it would only be two inches higher than the soil cover.
EPA Response:
[The gunite cover would not resist a flood that was of a higher
elevation than the existing ring levee, however, the gunite
material is more resistant to erosion.]
Comment:
159. One community member asked what type of water flow EPA
anticipated coming in across the flatlands of lower Santa Clara
Valley.
EPA Response:
[EPA would anticipate a sheet flow or a tidal flow but not a
river. There are points on the ring levee (the corners or
bends) which are more susceptible to erosion and these points
would need to be reinforced with gunite as opposed to soil.
For example, during the 1983 flood, the water depth was
probably higher than the ring levee, and if gunite had been in
place, it may have prevented erosion or washing as the water
rose and washed over the levee.] However, EPA's preferred
alternative is the soil (only) cover, and EPA expects this
cover to be sufficiently resistant to erosion. It must be
stressed, however, that EPA's responsibility is the remediation
of asbestos, not flood control.
Comment:
160. One community member commented that if water washes over the
levee, erosion damage would be irrelevant. The commenter also
wondered where the gunite would be installed, and added that
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the gunite was not much of an improvement over soil. This
commenter felt that most people would vote for soil cover
instead of the gunite/soil combination, because it would only
result in a $7,000 savings.
EPA Response:
[EPA would like to use soil for as much of the cover as it
could, however, there are constraints with certain portions of
the ring levee that make it difficult to use a soil cover. In
some areas large earth movers would have difficulty gaining
access and gunite may have to be used in these areas, although
public comment could change this.]
Comment:
161. One community member, referring to the places on the map that
may have gunite covers, stated that there is plenty of room to
work there. The commenter also stated that the flood waters in
1983 were lower than the walls of the ring levee and, had it
been in place, the ring levee would have provided sufficient
protection. The commenter felt that hydrology in the area
should be closely studied, because flood waters might contain
an energy source so strong that gunite would not prove
effective.
EPA Response:
EPA has reconsidered the use of gunite, and now feels that a
100 percent soil cover would be more advantageous. Although
the issue of flood control is important, EPA's responsibility
is the remediation of asbestos, not flood control.
Comment:
162. One community member asked whether part of the Raisch quarry is
now a mobile home court, and if so, why action has not been
undertaken there.
EPA Response:
[EPA will check into this issue.] There are mobile home parks
in the area and one adjacent to the quarry. However, there is
no mobile home park on the Raisch quarry.
Comment:
163. One community member asked why it was taking so long for EPA to
complete the ring levee.
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EPA Response:
[The Federal Superfund process mandates that EPA follow
specific requirements. These requirements, often cumbersome
and time-consuming, were designed to ensure that the right
decision is made for all persons affected by a Superfund site.
These requirements include preparation of studies and analyses,
coordination with other agencies, and public comment periods.]
Comment:
164. One community member asked why the asbestos could not simply be
dug up and taken away.
EPA Response:
[The cost of digging the asbestos up and having it disposed of
in a commercial hazardous waste landfill would be approximately
$9 to $10 million. This cost is prohibitively expensive.]
Although a certified RCRA hazardous waste landfill is no longer
considered necessary for this alternative, there are equally
effective remedies, such as the soil cover, which are less
expensive to implement. Therefore, removal and disposal was
screened out as an option for EPA. However, EPA may allow the
PRPs to remove the levee if they agree to do it at their cost
and in accordance with an EPA approved plan.
Comment:
165. One community member stated that Alviso did not have any
problems with floods before the ring levee was built.
EPA Response:
[The record in Alviso shows that flooding has occurred since
1777.]
Comment:
166. Various community members questioned when floods had occurred
in the past and from where these flood waters originated.
EPA Response:
[The specific years that the town of Alviso was flooded is
beyond the scope of this project. EPA is not trying to rebuild
the levee to alleviate potential flooding, it is concerned
with eliminating or reducing the risk of asbestos exposure,
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part of which is the result of the asbestos that is contained
in the material in the ring levee.]
Comment:
167. One community member asked if medical studies had been done in
this area.
EPA Response:
[To EPA's knowledge, no medical studies, relating to asbestos,
have been undertaken in the Alviso area.1
Comment:
168. Many community members questioned what EPA had done to date
regarding asbestos dust from the truck yards. Many commenters
added that this problem directly affects the community on a
daily basis and should be taken care of promptly.
EPA Response:
[EPA collected samples from the various truck yards along State
Street. However, these samples had to be re-analyzed twice,
because asbestos is very difficult to measure accurately in
soil. Last month when the asbestos contamination was
positively identified, letters were sent out to all of the
truck yard owners specifying the asbestos concentrations in the
soil and suggesting that they water down their yards
periodically. This is the next area targeted for action in
Alviso.]
Comment:
169. One community member asked if there was something the
community could do to help control the asbestos dust in the
air.
EPA Response:
[Community residents along State Street could hose down the
dust outside of their homes.]
Comment:
170. One community member, referring to residents along State
Street being asked to hose down the dust outside of their
houses, replied that there is presently a water shortage.
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EPA Response:
EPA acknowledges this comment and urges water conservation at
this time.
Comment:
171. One community member stated that holding the dust down should
not be a big problem.
EPA Response:
EPA is considering dust suppression techniques for the roads.
Comment:
172. One community member asked that EPA do something about the
dust problem while keeping the community informed of the
situation.
EPA Response:
See the response to comment 171. EPA will keep the community
informed.
Comment:
173. One community member stated that if the asbestos dust problem
in the truck yards were serious, EPA could do something to
alleviate the situation, including supplying water to the truck
yards.
EPA Response:
EPA is planning action at the truck yards.
Comment:
174. One community member asked if soil samples had been taken from
the truck yards and from nearby homes.
EPA Response:
[Samples have been taken from these truck yards and homes.]
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Comment:
175. One community member asked if the dust blowing off the ring
levee is the source of the asbestos contamination.
EPA Response:
[The dust blowing off the ring levee is part of the asbestos
contamination problem.]
Comment:
176. One community member asked if water were used to keep the dust
down and it subsequently washed down the drain, wouldn't the
asbestos inhalation problem be eliminated. The commenter also
asked if EPA had the funds to water down the asbestos dust and
stressed the need to control immediately the asbestos dust,
because it is the source of the inhaled asbestos
contamination.
EPA Response:
[The assumptions that asbestos dust is the source of the
inhaled asbestos contamination, and that the asbestos
inhalation problem could be eliminated if the asbestos were
watered and washed down the drain, are correct. However, if
this occurred, the asbestos would turn up elsewhere and could
cause a potential health risk.]
NOTE:
In regard to the many questions raised about dust control in
the community, it is important to note that airborne dust not
containing hazardous substances is not regulated under CERCLA.
It is the potential for asbestos in the dust that is of
concern. Under the Superfund process, EPA must demonstrate
that the asbestos in dust is a potential health risk, then
determine the best means for control. If the airborne asbestos
poses a risk above background, then EPA can take action to
control the problem. The risk from airborne asbestos is
currently being determined in the RI/FS study which will be
released later in 1988. Public comment is encouraged on the
RI/FS, once it is released.
Comment:
177. One community member, referring to the fact that EPA stopped
the City of San Jose from street sweeping because of the amount
of dust it was generating, asked how this risk compares to the
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risk posed by trucks and cars driving up and down the street,
or leaving the dust on the street.
EPA Response:
[The exposure from the dust generated by cars and trucks is
equally as dangerous as that generated by the street sweepers.
It is also dangerous to leave the dust sitting on the street.
Short term remedies for dealing with this problem are still
being investigated.] EPA has verbally recommended a wet-vacuum
process to the San Jose Neighborhood Maintenance Division.
Comment:
178. One community member asked if it is worse to leave the dust on
the streets and to allow cars to generate the asbestos dust, or
to have the street sweepers generate the asbestos dust.
EPA Response:
[EPA originally believed that the majority of the asbestos that
was in the road along State Street, Spreckles Avenue, and Grand
Boulevard was being washed off the ring levee and onto the
streets. However, dust carried by trucks onto the streets may
pose significant risks as well. At this time the best short
term solution appears to be keeping the street sweepers out
until the levee can be covered permanently.]
Comment:
179. One community member asked if the street sweepers could now
return.
EPA Response:
[The risks and benefits associated with the return of the
street sweepers will have to be studied before a decision is
made to allow the street sweepers back into the area.] EPA
will recommend to the San Jose Neighborhood Maintenance
Division that they use a self-contained recirculating air
sweeper to clean the streets. Several local contractors, such
as Celtics Sweepers, own such sweeper trucks. The truck uses a
water spray and does not exhaust the air, to control asbestos
emissions to the air.
Comment:
180. One community member asked if watering the truck yards would be
more of a hazard than the dust, because mud would be
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transported and re-distributed on the wheels of buses and
trucks.
EPA Response:
Problems such as this could occur. EPA recommends paying the
truck yards.
Comment:
181. One community member asked what the definition and role of EPA
is in the context of the asbestos dust problem.
EPA Response:
Although an EPA representative stated at the community meeting
that EPA "might not have authority to exercise control over
asbestos dust within the town of Alviso," CERCLA gives EPA
authority to act when there is a release or a threatened
release of a hazardous substance (CERCLA §104, 42 U.S.C.
§9604).
Comment:
182. One community member asked if all dust (regardless of whether
it contains asbestos) in the air is hazardous to ones health.
EPA Response:
[All dust may be hazardous. However, Superfund must work
within certain constraints, and these constraints do not allow
dealing with dust that does not contain hazardous substances.]
Comment:
183. One community member asked if EPA's presence in the community
implies that they will be responsible for some type of clean-up
action.
EPA Response:
[When the study is finished, it will be decided if clean-up
action by EPA is warranted in the area with respect to
asbestos.]
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Comment:
184. One community member stated that community members should have
input into the study. The commenter also asked what progress
had been made at the site since EPA became involved.
EPA Response:
Since late 1985, [when EPA became involved in the site, the
ring levee was sealed, the study was finalized, the extended
part of Spreckles Avenue was paved, the lot behind George Mayne
School was paved, and the Environmental Education Center was
paved.]
Comment:
185. Two community members asked for an explanation as to the
purpose of community meetings.
EPA Response:
[The purpose of community meetings is to keep interested
community members informed of site activities, and to find out
what the community concerns are. In addition, formal comment
periods provide a forum for EPA to receive comments.
(Community meetings are held during these formal comment
periods.)]
Comment:
186. One community member asked if EPA is concerned about the
community's health, and if so what about the blowing dust
problem.
EPA Response:
[EPA is concerned with the health of the community.
Unfortunately, the Federal laws in question do not give EPA the
authority to deal with dust in and of itself. However, the
City of San Jose and the County of Santa Clara have the
authority to pass local ordinances to control dust. The
community could petition the City of San Jose to pass an
ordinance to restrict the amount of dust on the truck yards,
regardless of the asbestos levels.]
Comment:
187. One community member asked what authority EPA had to stop the
street sweeping.
83
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EPA Response:
[EPA provided the City of San Jose with the data collected and
asked that street sweeping be stopped.]
Comment:
188. One community member commented that the City of San Jose
probably complied with this request because it did not cost any
money, not because of the health implications.
EPA Response:
[The net result was that the street sweeping was stopped,
because it was believed that this would be beneficial to the
people in Alviso.]
Comment:
189. One community member asked if the asbestos in the dust was the
initial concern that led to cessation of the street sweeping.
The commenter also asked if the study results have indicated
that the asbestos contamination in the street dust warrants
action to keep it down.
EPA Response:
[This determination can only be made after long-term study
results are examined. These results should be completed in
September. At that time it will be determined if the
contamination in total (i.e., street dust in combination with
other asbestos sources around town) warrants taking further
action (other than what is presently being proposed on the ring
levee).]
Comment:
190. One community member asked if the community would continue to
breathe dust in the interim months before the study results are
completed.
EPA Response:
[Until the study results are completed, EPA cannot initiate
overall remedial action at the site to correct the asbestos
problem.]
84
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Comment:
191. One community member asked if there was a way to "wet sweep"
the asbestos dust. The commenter also questioned if the
asbestos dust truly created a hazardous material concern, since
this fact had not yet been concluded.
EPA Response:
EPA is considering various dust control technologies. EPA
believes that the asbestos dust creates a potential threat to
human health.
Comment:
192. One community member asked what liability might be faced if the
City of San Jose were asked to reinstate street sweeping in the
affected areas.
EPA Response:
[The incremental liability cannot be determined at this time.]
Comment:
193. One community member, referring to the above response, asked if
this also meant that nothing would be done on the ring levee
until the September study comes out.
EPA Response:
[Funds are in place for an interim remedy at the ring levee.
The primary purpose of this community meeting is to solicit
comments on the proposed interim remedies on the ring levee
which will be in effect until an overall solution is
developed.]
Comment:
194. One community member stated that, while EPA's efforts were
appreciated, many community members were frustrated due to the
lack of accountability and participation by the City of San
Jose. This commenter encouraged EPA to beautify (rather than
to use gunite) the ring levee, as it is already an
environmentally sensitive area. The commenter also asked what
environmental impacts were associated with polymers.
85
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EPA Response:
[EPA thanks this commenter for expressing his appreciation of
EPA's efforts at this site and adds that the polymers which
were selected for the ring levee are non-toxic.] Due to public
comments and input from other agencies, gunite will not be a
part of the remedial design.
Comment:
195. One community member, referring to the ring levee, asked if
gunite covered with earth was one of the proposed remedies.
EPA Response:
[Gunite with earth on top was not one of the proposed remedies
Previously, a fabric liner over the existing ring levee with
soil on top was considered. However, the study showed that a
larger soil cover was a better solution to the problem than
putting a fabric cap on with little soil cover.]
Comment:
196. One community member asked if there was a synthetic fabric
with a long lifetime that could be put on the ring levee.
EPA Response:
[There are synthetic fabrics that would last a long time.
However, it would be difficult to assure that the soil would
adhere to them.]
Comment:
197. One community member stated that the [Santa Clara Valley]
Water District uses fabric or soil stability and erosion
control where extreme hydraulic problems exist, and added that
the water flow is vertical and not horizontal like stream
flow.
EPA Response:
[A synthetic cover could be used if EPA could be assured that
the community would not use the levee. However, the community
has requested that they be allowed public access to the levee
for hiking, walking pets, etc. For this and other reasons
explained in the OUFS, EPA feels that the best remedy will be a
much larger soil cover.]
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APPENDIX A
Written Comments Submitted During the
Public Cement Period
and the
Question and Answer Period of the
April 28, 1988 Public Meeting
-------
Index of Submitted Comments
1. Comments Submitted by The Raisch Company (Letter from Keith Howard,
Tinning & DeLap, Attorneys at Law, dated May 24, 1988)
2. Comments Submitted by the City of San Jose (Letter from Michelle Yesney,
Director, Office of Environmental Management, dated May 25, 1988)
3. Comments Submitted by State and Federal Government Agencies
Comments Submitted by the U.S. Fish and Wildlife Service (Letter
from James J. McKevitt, Field Supervisor,, dated May 10, 1988)
Comments Submitted by the Resources Agency of California (Letter
from Gordon F. Snow, Assistant Secretary for Resources, dated May
25, 1988)
Comments Submitted by the California Department of Fish and Game
(Letter from Pete Bontadelli, Director, dated May 25, 1988)
Comments Submitted by the Regional Water Quality Control Board
(Letter from Steven G. Eberl, Water Resource Control Engineer, dated
May 13, 1988)
4. Comments Submitted by Other Interested Parties
. Comments Submitted by Craig Parada and Sharon Rice, Alviso Residents
(Letter dated May 25, 1988)
Comments Submitted by Robert W. Gross, The Mudflat Refuge (Letter
dated April 28, 1988)
Comments Submitted by Brenda Monroe, Alviso Resident (Letter dated
May 2. 1988)
Comments Submitted by Diane K. Hein, Alviso Resident (Letter dated
May 4, 1988)
Comments Submitted by Roy Jimenez, Family Health Foundation of
Alviso, Inc. (Letter dated May 25, 1988)
5. Question and Answer Period of the April 28, 1988 Public Meeting (Pages 30
through 66 of the Meeting Transcript)
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Comments Submitted by
The Raisch Company
-------
CHAALC3 A. WOOD. Jft.
KCITH MQWAHO
ANTHONY W. MAWTMOANC
NANCT J. CASALC
LISA A. WtOCK
KCMOALL A. LAYNC
TINN.ING & DE|_AP
ATTORNEYS AT LAW
* MKTMCHIMI*
1290 NCWtLL MILL PLACC, SUlTC 3OO
WALNUT CRtEK. CALIFORNIA 94596
(0191 01S-O7OO
MAILINO AOORCS9
P. O. «OX
T. H. OCLAP liaaS-19741
A. a. TINNING iiaar
OTHCR ornccs
RICHMOND. CALIFORNIA
May 24, 1988
HAND DELIVERED 5/25/88
Nancy Woo
Remedial Project Manager
U.S. Environmental Protection Agency
215 Fremont Street
San Francisco, CA 94105
Dear Ms. Woo:
This letter, together with its attachments, constitutes
the comments of The Raisch Company to the Operable Unit
Feasibility Study (OUFS), South Bay Asbestos Site, Interim
Ring Levee, Alviso, California * April, 1988.
The Raisch Company has been named a potentially respon-
sible party by EPA in connection with the above referenced
site. Raisch wishes to express its strong objection to the
inadequate time allowed to prepare and submit comments to the
OUFS. The above site has been on a national priorities list
since 1984. EPA first contacted a potentially responsible
party with respect to the ring levee in 1985 (the City of San
Jose). Despite EPA having full knowledge of the source of
the material used to construct the ring levee, it was not
until the end of February, 1988, that EPA notified The Raisch
Company that it was a potentially responsible party. The
failure of EPA to notify The Raisch Company at an earlier
date has prevented and prohibited the company from
participating in the extensive studies, investigations, and
other activities that have led to the issuance of the above
referenced OUFS. It is apparent that the OUFS took months,
if not years, to prepare. It references almost a hundred
studies relied on in its preparation. To allow a response
period of less than six weeks is not only inadequate, but it
appears as an attempt by the Environmental Protection Agency
to prohibit The Raisch Company from creating an adequate
administrative record to defend against future EPA actions
regarding this site. The OUFS relies extensively on
technical experts in connection with air monitoring, risk
assessments, and the like. The conclusions as to appropriate
remedial actions rely heavily on these technical aspects of
the report. In order to adequately comment on the report, it
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TINNING s. DELAP
Nancy Woo
May 24, 1988
Page 2
is necessary for the responsible parties to have adequate
time to retain their own technical experts to review and
comment on the studies relied on by the authors of the OUFS.
The short time allowed for comment combined with EPA's delay
in including Raisch Company as a potentially responsible
party practically prohibits the use of outside consultants
and technical experts in connection with a review of the OUFS
and its supporting documentation.
The failure to allow adequate time to create an
administrative record and submit appropriate comments to the
OUFS is particularly pertinent in this case since EPA has
made it clear that they intend the remedial action selected
in the OUFS process to be the permanent solution for the ring
levee. The Remedial Investigation Feasibility Study (RIFS)
which is ongoing for the Alviso South Bay Asbestos Site will
already have been prejudged by the remedial action selected
in the OUFS process.
It is Raisch's strong belief that the inadequate time
allowed to respond to the OUFS in this particular matter
constitutes a violation of Section 113K(2)(B)(ii) of the
Comprehensive Environmental Response, Compensation, Liability
Act of 1980 as amended by the Superfund Amendments and
Reauthorization Act of 1986 requiring that EPA allow
participants in a CERCLA site "a reasonable opportunity to
comment and provide information regarding the plan", and
further constitutes a violation of Section 113K(2)(D) which
mandates that EPA "shall make reasonable efforts to identify
and notify potentially responsible parties as early as
possible before selection of a response action*.
Additional comments on the OUFS are attached to this
letter.
Very truly yours,
TINNING & D
KH/ras
Enclosures
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ASBESTOS HEALTH RISKS
The text of the OUFS makes no mention of the different
types of asbestos existing in the environment nor does the
text make any distinction regarding the health hazards of one
type of asbestos versus another.
The term asbestos is a broad categorization of various
fibrous inorganic materials. There are distinct chemical and
structural differences between the two asbestiform groups:
serpentine and amphibole minerals.
There are a multitude of studies of the asbestiform
varieties. Generally these studies conclude that the
amphibole group (crocidolite, amosite, termolite-actinolite,
and anphrophylite) is quite potent and pose substantial
health risks. There is uncontrovertible evidence that the
serpentine group (chrysotile) is far less hazardous than the
amphiboles and that its production and use can and is being
successfully regulated.
Serpentine formations (the source of the rock in the
Alviso ring levee) are widespread throughout California and
Santa Clara County and, in fact, serpentine rock is the
"state rock". Attached hereto and incorporated herein by
reference are a number of articles and reports (Asbestos
Health Risks Exhibits L_ through g__) discussing the
differences between chrysotile asbestos and the amphibole
types discussed above.
The conclusion can be drawn from the attached reports
that the concentrations of chrysotile asbestos found in the
air in Alviso does not constitute a significant health risk.
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AIR MONITORING
The OUFS states that the risk from asbestos is due to
inhalation of fibers from the air (OUFS Section 1-19). The
air monitoring of asbestos fibers in Alviso done to date is
inadequate to support any remedial action for the ring levee.
Air monitoring was first conducted by Woodward Clyde on
behalf of the City of San Jose prior to the use of any
chemical suppressant on the levee. (OUFS, 1-19; copy of
Woodward Clyde report attached as Air Monitoring Exhibit 1)
The sampling consisted of only six days. The OUFS points out
that optical microscopy analysis of the samples showed that
in all six upwind/downwind sample pairs that the downwind
concentrations were less or equal to the concentrations
upwind of the dike. (OUFS, 1-21) Furthermore, the sampling
did not take into account what type of asbestos fibers were
found in the air. The asbestos in the levee is chrysotile, a
naturally occurring asbestos. The town of Alviso has been
identified as a Federal Superfund site because of the levee
and because of the deposit of other types of asbestos bearing
material in the town itself. As set forth in the conclusion
of the Woodward Clyde report, the testing they undertook
failed to distinguish and/or isolate asbestos originating
from other activities in Alviso from naturally occurring
asbestos in the ring levee. No effort was made in the
Woodward Clyde sampling to distinguish air borne asbestos
originating from man-caused activities and asbestos
originating from naturally occurring asbestos in the ring
levee. Extensive testing undertaken by the California Air
Resources Board (ARB) to determine ambient concentration of
asbestos throughout California demonstrates the feasibility
of distinguishing between the different types of asbestos
fibers. (California Air Resources Board Final Report -
Ambient Asbestos Concentrations in California, Volumes I and
II prepared by Science Applications, Inc., December 1983)
(OUFS, 1-26; copy attached as Air Monitoring Exhibit 2)
In connection with the California Department of Health
Services "worst case" testing done in June of 1985, no
control test was conducted. Because serpentine rock is
California's most prevalent rock (serpentine rock is the type
used to construct the levee and contains naturally occurring
asbestos) and, in fact, is the California state rock, it is
very likely that had the same tests conducted by DBS been
conducted on any exposed serpentine rock anywhere in
California that similar results would have been obtained.
More recent ambient air analysis in Alviso conducted by
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EPA and not included in the OUFS is referred to in EPA's
"supplemental sheet" dated April 28, 1988, entitled "Operable
Unit Feasibility Study, South Bay Asbestos Area Superfund
Site, Alviso, California" (copy attached as Air Monitoring
Exhibit 3). This document indicates the following with
respect to the most recent air monitoring:
"Based on air monitoring data, there are low levels
of asbestos prssent in the atmosphere throughout the
community. This is not uncommon in many urban environ-
ments. Although the asbestos levels are generally
slightly higher downwind of the levee, the differences
are not statistically significant. These experiments
are not considered conclusive at this time and the data
is being reanalyzed...The levels of ambient airborne
asbestos in the community at present do not appear to
differ significantly from other nearby communities."
The above referenced 1983 ARB report on ambient
concentration of asbestos through California indicates that
the levels found in the air in Alviso are not significantly
higher than the levels found in San Jose in general.
In summary, the ambient air testing done to date in
Alviso has failed to isolate the ring level as the source of
asbestos in the air in Alviso and has failed to demonstrate
that the ambient air concentrations of asbestos in the Alviso
area are significantly different than in the surrounding San
Jose area.
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REMEDIAL ACTION ALTERNATIVES
The OUFS failed to discuss several practical, feasible,
and cost-effective remedial action alternatives and in some
cases does not adequately address the remedial action
alternatives identified.
No Action Alternative:
As set forth in the comments regarding Asbestos Health
Risks, no demonstration has been made that there are adverse
health effects from chrysotile asbestos in the concentrations
found in the ambient air at the Alviso site. The ambient air
testing has failed to isolate the ring levee as the source or
a source of asbestos in the ambient air at Alviso and
evidence is not presented to indicate that the concentrations
of asbestos in the air in Alviso are significantly different
than concentrations in the Greater San Jose area. For all of
these reasons, the selected alternative should be no action.
Chemical Soil Suppressant:
This alternative is discussed in the OUFS only in terms
of its potential permanent application. Supposedly the OUFS
is recommending interim measures for the South Bay Asbestos
Site. The long term and permanent solutions are to be
covered in the ongoing RIFS. The chemical suppression treat-
ment, which has been in effect since May of 1986, appears to
have been markedly successful. The ambient air samples taken
by EPA since the application of the soil suppressant has
revealed no higher ambient air concentrations of asbestos
than is found in surrounding communities. It would appear
that the continued and "temporary" application of the
chemical soil suppressant at least until the conclusion of
the RIFS would be the most logical and rational approach to
the ring levee. Such an approach is the only alternative
that has no potential of being in direct conflict with an
ultimate solution for the ring levee, whatever that may be.
The continued "temporary" application of chemical soil
suppressant is also consistent with a City of San Jose and
Army Corps of Engineers' plan for flood control improvements
to the Coyote and Guadalupe Rivers in the Alviso area. These
projects, some of which have commenced, address the cause of
the 1983 flooding which led to the construction of the levee.
It is believed that once these flood control measures have
been implemented that the need for the levee would no longer
exist and it could then be removed pursuant to the
alternative discussed below. Continued soil suppressant use
in the interim would provide protection from the levee until
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the permanent solution could be implemented.
Incorporation of Ring Levee Into New Permanent Levee:
As pointed out in the OUFS, the ring levee was built as
an emergency measure in an attempt to protect the citizens of
Alviso from floodwaters during a period of extremely heavy
rains. After construction of the ring levee, the City of San
Jose in 1984 prepared a draft Environmental Impact Report for
a permanent levee. The City and the Corps of Engineers have
both discussed the feasibility and possibility of incorpora-
ting the existing ring levee into a larger and more permanent
levee structure for the protection of the town of Alviso from
floodwaters. If in fact this project proceeds, the existing
levee would be an ideal base for a new levee. The existing
ring levee would be covered with more than ample material to
prevent the escape of any asbestos containing material into
the air. The use of the existing ring levee and/or the
materials in the existing ring levee would be far and away
the most cost efficient and practical method of construction
of a new permanent levee. No consideration is given to this
alternative in the OUFS despite the fact that such a plan is
being and has been considered for a number of years by the
City of San Jose and the Army Corps of Engineers and is the
subject of the above mentioned Environmental Impact Report.
Pending the permitting and construction of the permanent
levee, the continued use of chemical soil suppressants would
all but eliminate the risks claimed to be associated with the
existing levee.
Removal and Relocation of Ring Levee Material to a Project
Needing Fill and/or to the Quarries of Origination:
The volumes of studies, reports, and documentation
relating to asbestos fibers of the type found in serpentine
rock clearly reveal that the fibers are hazardous only in the
event of inhalation. That is, the material is not inherently
hazardous but can become hazardous if released to the
atmosphere and inhaled in high concentrations over long
periods of time. If the asbestos containing rock has no
potential for release to the atmosphere, it becomes
non-hazardous. In fact, the asbestos containing rock is a
naturally occurring substance throughout the United States
and is used throughout the United States as bedrock for
uncountable construction projects typically including
roadways, parking lots, and the like. A practical, permanent
and cost effective solution to any risk created by the ring
levee would be to remove the material comprising the ring
levee to a nearby highway construction project where the
material would be utilized as a base fill and covered with
-2-
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sufficient non-asbestos containing material arid/or sealed
with asphalt in conjunction with such project to prevent the
future escape of any material into the atmosphere. The need
for significant amounts of such fill in connection with
highway construction is unquestioned and there is little
doubt that a suitable project site could be found within the
immediate vicinity of the ring levee. This alternative not
only permanently removes the material from the Alviso area
and disposes of it in a manner where the material is rendered
non-hazardous, but it is also the most cost effective
alternative and minimizes any transportation problems related
to any other removal alternative (i.e., to a permitted
facility).
If for some reason a suitable project could not be found
to utilize the ring levee fill material, the material could
be returned to its "quarries of origin" for future use as
fill material under circumstances protecting escape of
asbestos into the air. The ability to work with asbestos
containing serpentine in a safe manner is clearly
demonstrated in the Summary Report, Serpentine/Asbestos
Public Health Analysis attached as Exhibit 1.
Section 122(b)(l) of CERCLA provides:
"Remedial actions in which treatment which permanently
and significantly reduces the volume, toxicity, or
mobility of hazardous substances, pollutants and
contaminants is a principle element and are preferred
over remedial actions not involving such treatment.
These latter two alternatives, i.e., removal to a nearby
project site and/or removal to the quarries of origin
This section goes on to provide:
"The president shall select a remedial action that is
protective of human health and the environment that is
cost effective, and that utilizes permanent solutions
and alternative treatment technology or resource
recovery technology to the maximum extent practicable.
If the president selects remedial action not appropriate
for a preference under this section, the president shall
publish an explanation as to why a remedial action
involving such reductions was not selected."
Finally, subsection (b)(2) of Section 121 provides:
"The president may select an alternative remedial action
meeting the objectives of this subsection whether or not
-3-
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such action has been achieved in practice at any other
facility or site that has similar characteristics. In
making such a selection, the president may take into
account the degree of support for such remedial action
by the parties interested in such site."
The solutions offered by these alternatives, removal to
a suitable construction site or the quarries of origination,
are consistent with other federal laws and regulations and
remove all problems associated with leaving the levee in
place. As an emergency construction project, the ring levee
was constructed without many of the required permits and
investigations which would normally be undertaken in
connection with a project of this nature. No Bay
Conservation and Development Commission permit was obtained,
no Environmental Impact Report was done prior to construction
of the levee, no 404 Clean Water Act permits were obtained
and no wetland mitigation provided. Removal of the levee
resolves all of these problems.
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INDEX
Attachments to EPA Letter Addressed to Nancy Woo
Dated May 24, 1988
1. Asbestos Health Risks
Exhibit 1 - Article from California Mining dated
September 1986
Exhibit 2 - Geological Occurrences and Health Hazards of
Amphibole and Serpentine Asbestos by
Malcolm Ross of U.S. Geological Survey
Exhibit 3 - Article from British Journal of Industrial
Medicine 1980 entitled "Dust Exposure
and Mortality in Chrysotile Mining,
1910-75"
Exhibit 4 - Letter from Robert G. Coleman, Ph.D. of
Stanford University dated March 25, 1986,
addressed to Board Secretary, Air
Resources Board
Exhibit 5 - Letter from Malcolm Ross of U.S. Department
of Interior dated February 28, 1985,
addressed to Dr. Bernard D. Goldstein
of the U.S. EPA
2. Air Monitoring
Exhibit 1 - Woodward Clyde Report
Exhibit 2 - State of California Air Resources Board
Staff Report and Final Report, Volumes
I and II
Exhibit 3 - EPA's Supplemental Sheet to OUFS
3. Remedial Action Alternatives
Exhibit 1 - Summary Report: Serpentine/Asbestos Public
Health Analysis
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Comments Submitted by
The City of San Jose
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CITY MANAGER
CITY OF SAN JOSE, CALIFORNIA
101 NORTH FIRST STREET. ROOM 460
SAN JOSE. CALIFORNIA 95110
TELEPHONE (401) 277-4000
OFFICE OF ENVIRONMENTAL
MANAGEMENT
May 25, 1988
DELIVERED BY MESSENGER
Nancy Woo
Remedial Project Manager
U.S. Environmental Protection Agency
215 Fremont Street (T-4-3)
San Francisco, CA 94105
Re: COMMENTS ON OPERABLE UNIT FEASIBILITY STUDY.
SOUTH BAY ASBESTOS SITE. INTERIM RING LEVEE.
ALVISO, CALIFORNIA
Dear Ms. Woo:
This letter and its enclosures constitute the City of San Jose's comments
on the Operable Unit Feasibility Study (OUFS) for the Alvlso Ring Levee.
At the outset we wish to state that It 1s apparent that considerable
effort was expended by EPA and Its consultants 1n the preparation of the
OUFS. Nonetheless the study has some critically Important shortcomings. It
Is the City's position that these shortcomings render the OUFS substantially
deficient. It 1s our view that the OUFS 1s not complete enough, at this
point, to serve as a basis for decision. More work will be required before
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Nancy Woo Hay 25, 1988
Comments on Operable Unit Feasibllty Page 2
Study, South Bay Asbestos Site, Interim
Ring Levee, Alvlso, California
the OUFS can be said to be adequate to the task of analyzing the risks and
providing an adequate evaluation of the appropriate remedial actions.
For example, and as will be addressed 1n greater detail, the OUFS does not
properly address the question of causation, I.e., whether whatever asbestos
that 1s present 1n various other parts of Alvlso (Including the atmosphere)
came from the naturally occurring chrysotlle asbestos contained in the
serpentine rocks and soil in the levee. Indeed, the City submits that there
is considerable evidence that much, if not all, asbestos which may be found in
Alvlso came from sources other than the levee. Furthermore, the City points
out that the naturally occurring chrysotlle asbestos 1n the serpentine rock
and soil at the Alvlso Ring Levee 1s no different than the naturally occurring
chrysotlle asbestos found In serpentine rocks and soil In many other areas 1n
California. It poses no different health hazard. It should be treated no
differently than If the levee were a natural formation. The City further
contends that EPA has Inadequate information to conclude that a health risk
may exist in Alvlso as a result of the serpentine rocks and soil in the
levee.
The City also contends that critical engineering questions have not been
adequately examined. For example, the OUFS falls to examine the flood control
ramifications of the proposed remedial alternatives. There Is no engineering
analysis as to whether the modifications to the levee, under the several
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Nancy Woo May 25, 1988
Comments on Operable Unit FeaslblHy Page 3
Study, South Bay Asbestos Site, Interim
Ring Levee, Alvlso, California
alternatives, would Increase the risk of flood damage. Without a thorough
study of the alternatives 1n the light of their potential flood control
Impacts, the OUFS 1s simply Incomplete. Before any decision 1s made to leave
the levee 1n Its present location, add cover material to 1t, or to remove 1t,
an engineering study of the levee must be conducted.. At a minimum, a complete
study of the levee should consider whether, with a cover, the levee would
withstand flooding. Compaction tests should be conducted prior to any
decision to add cover to the levee. Only when these tests are conducted, and
their results included 1n the OUFS, can the OUFS be regarded as adequate. The
failure to consider the flood control ramifications of the remedial alterna-
tives renders the OUFS deficient.
To the extent EPA conceptualizes the Ring Levee as a hazardous waste site
it commits a fundamental error. The levee should be considered as a
"community structure." See 42 U.S.C. Section 9604 (c)(3)(B). Its character
as waste 1s questionable: It 1s soil and dirt, containing naturally
occurring, unprocessed, unmanufactured serpentine material, which contains
chrysotile asbestos. As pointed out above, the soil and rock 1n the levee Is
no different than that found 1n nature 1n numerous sites 1n California.
Turning to aesthetic issues, 1t 1s the CHy's position that 1f the EPA
were to select a remedy other than removal, and health and flood/engineering
issues were equal, then the most desirable remedy 1s the one which would
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Nancy Hoo Hay 25, 1988
Comments on Operable Unit FeasibUty Page 4
Study, South Bay Asbestos Site, Interim
Ring Levee, Alvlso, California
provide for an acceptable appearance of the levee, one which meets the
aesthetic needs of the Alvlso community. A soil cover, with low maintenance
native plants and gunlte only where 1t 1s necessary, would be preferable,
certainly to the plain gunlte cover. The City strongly urges that the views
of the Alviso community be taken into account on matters such as desirability
of a walking-jogging path, benches, and other amenities, if the safety of the
community is assured.
A recent search of City files has revealed the possibility that it may be
appropriate to designate additional potentially responsible parties (PRPs).
These include the U.S. Department of the Interior, Piazza Construction,
Hlllsdale Quarry, and W. H. Ebert Construction. Piazza and Ebert evidently
performed construction work on various portions of the levee. Their work
evidently included procuring and transporting more than 1,500 tons of the
rocks and soil used in the levee. (The material came from Hillsdale). The
Department of the Interior apparently financed the activities of Piazza, and
by so doing, may have become an "owner" or "operator."
Any remedial orders should consider both long and short term solutions,
and should provide for subsequent alterations, for example to permit work to
be undertaken on the ultimate levee. Any removal and rebuilding which might
be permitted should be accomplished between April 15th and October 15th, in
view of weather considerations. As Indicated above, flooding/engineering
-------
Nancy Woo May 25, 1988
Comments on Operable Unit FeasibHty Page 5
Study, South Bay Asbestos Site, Interim
Ring Levee, Alvlso, California
studies are recommended as a necessary factor 1n selection of the appropriate
remedial alternative. Removal of all or any part of the levee should be
considered only after flooding/engineering studies have been conducted, and
adequate flood control measures, if required, are taken. Of course the
effects of transportation and disposal should be carefully considered, before
any removal 1s ordered.
The City contends that the EPA's refusal to extend the comment period as
requested by the City constitutes an abuse of discretion which, under the
circumstances, has denied the City due process of law. The matter of asbestos
contamination is complex. Data as to asbestos health risks 1s Incomplete,
especially as to chrysotile asbestos. The comment period allotted to the
City, thirty days, plus a two-week extension, was simply too brief to permit
the City to fully address matters of the complexity involved in the OUFS.
EPA's denial of the City's request for a sixty day extension hindered the City
in conducting its review of the OUFS, prevented a study of other alternatives
and combinations of alternatives, and in preparing full comments on the OUFS.
As a consequence, the City asserts that it has been denied due process of law.
In addition to the foregoing comments on the OUFS as a whole, the City has
a number of concerns with various specific sections of the OUFS. These are
addressed separately in the attached comments, which are incorporated by this
reference.
-------
Nancy Woo May 25, 1988
Comments on Operable Unit FeasibHty Page 6
Study, South Bay Asbestos SHe, Interim
Ring Levee, Alvlso, California
The City of San Jose extends Its appreciation for the close consideration
we anticipate will be given to our comments. We regret that time limitations
constrained our efforts to provide full comments. We would welcome an
opportunity to submit further comments.
Sincerely,
Michelle YesneyW
Director
Office of Environmental Management
MY:RCY:GL:nn
Enclosures
-------
"EXECUTIVE SUMMARY"
Pg. ES-1, lines 3-4:
"The ring levee Is an earthen flood control dike about 2 miles long and 6 to 8
feet high which surrounds most of the community of Alvlso..."
Comments;
This statement regarding the height conflicts with other statements 1n the
report. For example, page 1-12, Section 1.3.2, "Description of the Levee", at
line 28-30 states:
"The ring levee 1s approximately five feet 1n height with a
trapezoidal shape, two miles 1n length, and surrounds the
town of Alvlso on the east, north, and northwest (Figure
1-2)."
Page 1-6, "Site History", at Hne 17-20 states:
"The ring levee 1s approximately two miles long, and average
of four to five feet 1n height and eight to twelve feet 1n
width, and surrounds nearly three-quarters of Alvlso. The
levee material was apparently Imported from quarries 1n San
Jose and Cupertino."
Surrounding the town on the east, north, and northwest, means that slightly over
half of the town Is surrounded by the levee (five-eighths 1f northwest 1s
considered 1/8th of the circumference) and does not reasonably Imply that "most
of the community" 1s surrounded.
OUFS Comments
-------
"EXECUTIVE SUMMARY"
Pg. ES-1, Unes 6-8:
"The levee was constructed in 1983, Immediately after a major flood, as part of
the City of San Jose and County of Santa Clara's plans to provide improved flood
protection to the area."
Comments;
Portions of the levee were constructed during the flood, not after. Accurate
placement of the emergency levee, 1n terms of conforming to existing property
lines, was hampered by the flood conditions (parts of the area were under water).
The City of San Jose did not then and does not now have primary jurisdiction or
responsibility for providing flood protection. Prior to the emergency action,
no plans were being developed by the City to construct a levee. The statement
that the City and the County were jointly planning to provide flood protection
1s Incorrect. The Santa Clara Valley Water District 1s the public agency
charged with flood control responsibility.
OUFS Comments
-------
"EXECUTIVE SUMMARY"
Pg. ES-1 , lines 8-10:
"The source of the material used for the levee was a rock quarry contalninn
asbestos, and the soils In the levee contain up to 40 percent asbestos."
Page 1-6, lines 16-19, "SITE HISTORY", states:
"The ring levee 1s approximately two miles long, an average of four to five feet
In height and eight to twelve feet 1n width, and surrounds nearly three-quarters
of Alvlso. The levee material was apparently Imported from quarries 1n San Jose
and Cupertino.
Comments;
Research on the part of the City reveals that the sources of the material the
levee was constructed from Includes at least two quarries. Records Indicate
that soil was imported from both the Ralsch Quarry and the Hillsdale Quarry. It
1s not known at this time whether the Hillsdale Quarry materials contained
asbestos. It Is not known what quarry In Cupertino 1s referred to.
EPA should Investigate more thoroughly the sources of the material that the
levee was constructed from and whether those sources contained asbestos 1n order
to accurately Identify all Potential Responsible Parties, as required by 42
U.S.C Section 9613(k)(2)(D).
OUFS Comments
-------
"EXECUTIVE SUMMARY"
Pg. ES-2, lines 6-8:
"The majority of the alternatives were eliminated because of unproven
technology, lack of documentation of protectlveness of human health, or high
cost."
Comments;
At issue Is whether the Implied elimination of the removal option due to "high
costs" 1s valid. The fact 1s that the review of the option of removal and Its
subsequent dismissal as a cost effective option was based on the administrative
requirement by EPA to dispose of the material 1n a "RCRA" approved hazardous
waste disposal facility. Additional potential locations for disposal should be
considered. Existing EPA policy requiring that naturally occurring asbestos
material 1n soil and rocks be disposed of only 1n RCRA-approved facilities (when
asbestos can be safely disposed of by burial which does not pose any long term
threat by migration), should be examined prior to dismissal of the removal
option as too costly.
The history of EPA's actions for asbestos abatement includes Instances where
asbestos material, once safely buried, was excavated and reburled at high cost
with no additional Increased protection, is often cited as an extreme example of
bureaucratic mismanagement.
OUFS Comments
-------
"EXECUTIVE SUMMARY"
Pg. ES-2, lines 15-17:
"The gunlte cover requires fewer easements and 1s easier to Implement, but may
not be acceptable to the community and other agencies."
Comments;
It Is not clear what the term "easements" means here. If 1t applies to
easements needed to apply the gunlte versus the soil cap, then the statement may
be true. If easements for the placement of the levee are 1n question, 1t 1s not
clear why the gunlte option would eliminate any required easements. Speculating
as to what will be acceptable to the public 1s not appropriate. They should be
consulted and heeded.
OUFS Comments
-------
Section 1, "INTRODUCTION"
Section 1.1 "Purpose' Pg. 1-1, lines 15-19:
"Because the flood control levee, or ring levee, appears to be a significant
source of asbestos, EPA has chosen to separate and accelerate the remediation
process for the levee by designating It an "operable unit." (Underscore added).
Cocroents;
The quoted language seems to Indicate that asbestos found elsewhere came from
the levee ("source of asbestos"). However, the City contends that while
naturally occurring chrysotHe asbestos may be present 1n the rocks and soil 1n
the levee, the OUFS does not establish that there has been any "significant"
migration of that form of asbestos from the levee. The City submits that the
tests which may Indicate the possibility of migration have not been shown to
have been conducted in a matter accepted as scientifically valid.
The .City suggests that the sentence be reworded to state "...appears to be a
discrete area where naturally occurring chrysotile asbestos is found 1n rocks
and soil,....' The foregoing would be substituted for '...appears to be a
significant source of asbestos...'.
The City also points out that the naturally occurring chrysotHe asbestos found
in the rocks and soil In the levee is no different than the naturally occurring
chrysotile asbestos found In rocks and soil In a variety of other locations,
including their original (natural) locations. If the levee were a fortuitously
located geological formation deposited In Us present location by the forces of
nature, it would not have been Included 1n the South Bay Asbestos Area. That
the levee came into being as a flood control measure, and not as a result of
deposition through the course of nature should not make any difference. There
was no "waste' disposal in the ordinary sense. The levee should not be treated
as a waste disposal site.
6
OUFS Comments
-------
"Section 1.2 "SITE BACKGROUND"
Section 1.2.1 "SITE LOCATION AND DESCRIPTION" Pg. 1-2, lines 19-21:
"Flooding occurs because of the site's proximity to the Bay and land subsidence
due to ground water extraction In the vicinity."
Comments;
The City submits that the quoted language Indicates that the OUFS analysis of
the causes of flooding 1n Alvlso 1s superficial and that additional analysis 1s
required before a remedy 1s selected. The City suggests that "proximity to the
Bay and land subsidence...." falls to take Into consideration a variety of
factors relevant to an evaluation of flooding risks.
If proximity to the Bay and land subsidence were the only factors, all lands
below the level of the Bay would be submerged at all times. Obviously more 1s
involved in determining whether flooding, especially from non-bay sources, 1s
caused or Influenced by any natural or man-made factors, including but not
limited to other flood control devices.
Without an examination which goes beyond "proximity to the Bay and land
subsidence..." the OUFS Is deficient and provides an Inadequate basis for
selection of the suitability, vis-a-vis the flooding potential, of any of the
alternatives. This-1s of no little significance. In the absence of evidence
establishing that the remedial action will not Increase the risk of flooding, a
prudent PRP might be compelled to resist a remedial order. In an effort to
Insulate Itself from liability for flood damage and asbestos contamination which
might result from flood water erosion and dispersal of the levee.
OUFS Comments
-------
Section 1.2 "SITE BACKGROUND"
Section 1.2.2 "SITE HISTORY" Pg. 1-6, lines 1-2:
J°Se constructed the r^9 levee after a disastrous flood 1n
Comments;
The levee was constructed during, not after, the flood.
8
OUFS Comments
-------
Section 1.2 "SITE BACKGROUND"
Section 1.2.2 "SITE HISTORY" Pg. 1-6, lines 6-9:
proceeded
(COE) who w.. _, JUWM ^
consultation with the Federal and State^agencl'es
Comments;
It is the City's position that the flooding emergency simply left no time to
consult the various agencies Involved. Moreover, applicable regulations
contemplate emergency situations, and provide for "after-the-fact" permitting,
OUFS Comments
-------
Section 1.2 "SITE BACKGROUND"
Section 1.2.2 "SITE HISTORY" Pg. 1-6, lines 8-13:
"The City placed the "ring levee" 1n the approximate location of Its tentatively
planned flood-control levee, termed the "ultimate levee" (Figure 1-3) which
would join the Guadalupe River levee at a top elevation of 10.0 to 11.5 feet
(City of San Jose, 1984). The unfunded, tentative flood control plan was the
basis for construction of the existing ring levee."
Comments;
The City had no plans to construct a levee prior to the 1983 flood. There was
no "tentative flood control plan" prior to the construction of the emergency
ring levee and the document cited by EPA postdates the construction activity.
10
OUFS Comments
-------
Section 1.2 "SITE BACKGROUND"
Section 1.2.2 "SITE HISTORY" Pg. 1-6, lines 18-19:
"The levee material was apparently Imported from quarries In San Jose and
Cupertino."
Comments:
This statement conflicts with an earlier statement found on pg. ES-1, lines 8
and 10.
"The source of the material used for the levee was a rock
quarry containing asbestos, and the soils 1n the levee
contain up to 40 percent asbestos."
If EPA has Identified an additional quarry source for the fill, the source
should be cited, the source should be Investigated to ascertain whether it
contains asbestos, and the source should be Identified as a Potentially
Responsible Party, as required by 42 U.S.C. Section 9613(k)(2)(D).
11
OUFS Comments
-------
Section 1.2 "SITE BACKGROUND"
Section 1.2.2 "SITE HISTORY" Pg. 1-8, lines 9-12:
"The level of airborne asbestos generated was approximately 100 times higher
than the Occupational Health and Safety Administration (OSHA) Permissible
exposure limit (explained 1n more detail 1n Section 1.3.1) and prompted the DHS
to contact EPA."
Comments;
The OUFS falls to establish either the relevance or validity of the raking and
shoveling "experiment" (not test, not sampling method, but "experiment") or that
the OSHA permissive exposure limit (for occupational settings) 1s applicable to
environmental naturally occurring chrysotlle asbestos when 1t 1s not
artificially disturbed by raking and shoveling In front of a fan. (To the
City's knowledge raking and shoveling the levee 1s an activity pursued only by
representatives of DHS and EPA).
12
OUFS Comments
-------
Section 1.2 "SITE BACKGROUND"
Section 1.2.2 "SITE HISTORY" Pg 1-10, lines 1-5:
"When the asbestos fibers 1n a solid material, such as soil or Insulation, are
released Into the air and Inhaled, the adverse human health effects are
extremely serious. Asbestos 1s one of 20 known human carcinogens and also
causes other lung diseases. Asbestos has been throughly examined 1n numerous
epidemiology studies."
Comments;
The quoted language is both too general and too brief. It is simply not the
case that studies show, or permit the reasonable conclusion, that Inhalation of
any single asbestos fiber, of any size, will invariably produce an extremely
adverse human health effect. Indeed, some fibers, notably chrysotile, as a
result of their size and susceptibility to acid decomposition, seem to pose a
lower risk of adverse health effects.
Moreover, it is submitted that not all forms of asbestos have been thoroughly
examined "in numerous epidemiology studies." There have been numerous
studies. These were not uniform, and many did not (were not able to)
distinguish one form of asbestos, chrysotile, from others. The quoted language
Is therefore misleading. The distinctions in the studies of the effects of
various forms of asbestos are simply too important to justify Indiscreet use of
the Inaccurate collective tern "asbestos."
13
OUTS Comments
-------
Section 1.2 "SITE BACKGROUND"
Section 1.2.2 "SITE HISTORY" Pg. 1-12, lines 8-9:
"Although the OSHA 0.2 f1ber/cc workplace standard 1s the only promulgated
health standard for asbestos, EPA 1s concerned about any asbestos exposure."
lines 12-14:
"EPA recognizes that a certain background concentration of asbestos exists 1n
the atmosphere, caused by asbestos product use and natural sources, which cannot
be remedied.*
lines 25-26:
"In conclusion, the adverse health effects of asbestos are well documented, with
no known safe threshold of exposure."
Comments:
EPA's concern for asbestos exposure Is appreciated, but concern does not mean
that a particular action contemplated by EPA Is justified. The fact 1s that, to
date, EPA has not found a justifiable basis for the promulgation of appropriate
standards for naturally occurring asbestos 1n rocks and soil. This 1s why EPA
has not promulgated standards or regulations applicable to chrysotlle asbestos
In Its naturally occurring form, In soil and rock. Acting against the levee on
the basis of data that 1s Incomplete - or worse In the face of data Indicating
that different forms of asbestos pose different risks, and that chrysotlle may
well pose the least risk, would be arbitrary and capricious.
In addition, It 1s submitted that where, as here, the
»
"Levels of ambient airborne asbestos 1n the community
doe not appear to differ significantly.from other nearby
communities" (OUTS supp. sheet, April 28, 1988),
there 1s no justification for EPA to take action until all unresolved matters
have been addressed. To act otherwise would deny the rights of Alvlsans and the
PRPs to an informed reasonable judgment, and procedural due process.
14
OUFS Comments
-------
Section 1.3.2 "DESCRIPTION OF THE LEVEE"
Pg. 1-12, lines 28-29, Pg 1-13, line 1:
"The levee 1s generally rounded In shape, with side slopes generally steeper
than 2:1, and covers an area of approximately eight acres."
Comments;
The area said to be covered by the levee appears to be an error. Appendix Page
C-l cites an Initial loss In acreage calculation made by the U.S. Army Corps of
Engineers (letter from the Corps of Engineers to the City, of San Jose, Feb. 9.
1987) as being 4.2 acres. An additional area of approximately 4.0 acres 1s
cited as being required for the proposed capping option.
15
OUFS Comments
-------
Section 1, "INTRODUCTION"
Pg. 1-21, lines 24-25:
Based on the TEM results, 1t appears likely that the ring levee was
contributing asbestos to the ambient air In Alvlso during windy periods."
Comments;
This statement seems to be an unsupported assumption or opinion. The testing
cited does not appear to be designed to differentiate between different sources
of asbestos dust. Considering the widespread Indiscriminate dumping of asbestos
containing wastes that have taken place, the large amount of unpaved dirt roads
»
and commercial areas known to contain asbestos dust, and the lack of control of
this source of re-entrained dust generated by both wind and vehicle traffic, 1t
would seem appropriate to assume that other sources, besides the levee, are
principal contributors. It 1s not clear how, based on the TEM results cited,
the conclusion stated, "1t appears likely that the ring levee was contributing
asbestos", 1s supported by evidence. In fact, as noted in the following
paragraph in the text, evidence exists that could refute that assumption:
Page 1-21, lines 29-30:
"Results of the PCLM, or optical microscopy, analysis showed
opposite results (Table 1-2)."
16
OUFS Comments
-------
Section 1 "BACKGROUND
Section 1.3.2 "DESCRIPTION OF THE LEVEE" Pg. 1-21, lines 24-27:
"Results of the PCLM, or optical microscopy, analysis showed opposite results
(Table 1-2). In all 6 upwind/downwind sample pairs, the downwind concentrations
were less than, or equal to, the concentrations upwind of the dike."
Comments;
The OUFS supplemental sheet dated April 28, 1988 also comments on upwind/
downwind sampling, noting that the differences "are not statistically
significant..." and that "the experiments are not considered conclusive at this
time and the data are being reanalyzed...." Most unfortunately, the OUFS
supplemental sheet does not Identify which experiments "are not considered
conclusive" and which data 1s being reanalyzed, or why. EPA's failure to
Identify these experiments, or to say why they are not considered conclusive
leaves the matter open to speculation and denies commenters the opportunity to
present arguments or evidence on this point. The result Is a denial of an
effective opportunity to comment, a denial of due process.
17
OUFS Comments
-------
Section 2 "REMEDIAL ACTIONS ALTERNATIVES"
"ASBESTOS TOXICITY" Pg. 2-2, lines 18-20:
"Therefore to be consistent with EPA's policy and standard of practice, site
remediation should control containment releases so that the risk from exposure
Is Insignificant."
Comments;
This statement seems to highlight the scientific and policy dilemma faced by
EPA. A no-threshold exposure value for which there 1s no danger of cancer from
exposure 1s cited in the previous sentence as the level required for safety.
How, considering ambient background levels 1n existence throughout the entire
area, excluding the Alvlso area, can an assessment of the efficiency of any
proposed remediation method be determined as decreasing risk to an (undefined)
"Insignificant" level? Only the complete elimination of asbestos from the
ambient environment could be considered as a zero threshold or "insignificant"
risk.
18
OUFS Comments
-------
Section 2 "REMEDIAL ACTIONS ALTERNATIVES"
ASBESTOS TOXICITY" Pg. 2-2, line 20:
"Asbestos 1s present 1n the levee soils In amounts up to 40 percent (as measured
by PLM and TEM). The value 1s 2,000 times more than the Region IX air guideline
of 200ppm 1n soil (0.02X) which would cause a (10 to the minus 4) risk 1n air
under worst-case assumptions."
Comments;
This 1s not a valid worst-case assumption for the simple reason that we know, at
least with some statistical certainty, that the highest level observed is not a
valid likely mean value. Even a worst-case assumption has to be tempered by
«
some reasonable estimate of the likely percent of asbestos present 1n the fill.
A worst-case assumption does not allow choosing a discrete data that may fit a
previously taken assumption or unrecognized bias. We would suggest. If this
section 1s to serve some function, that the worst-case assumption be based on a
concentration based on the mean, not the extreme of the existing data.
An additional flaw in this logic Is. the general assumption that a concentration
of asbestos in soil can be projected to a lifetime exposure and a predicted
level In air. The OUFS contains no substantiation for that assumption.
19
OUFS Comments
-------
Section 2 "REMEDIAL ACTIONS ALTERNATIVES"
Pg. 2-4, Under "Description of NESHAP" in table
i
Controls on asbestos use Include "no visible emissions",
and prohibits the use of asbestos mine waste for surfacing."
and 1n the text following the table
"Since there are no regulations or health standards that apply directly to
outdoor air asbestos concentrations, the risk from asbestos In the levee soils
has been calculated under the No Action alternative In Section 4.0."
Comments:
EPA's description of the NESHAP neglects to mention that there 1s apparently no
prohibition which addresses the use of rocks and soil which contain chrysotlle
asbestos 1n Us naturally, occurring form from being used as fill material for
levees, dikes, roadbeds, or any other purpose. Conceptually, it would seem
that the rocks and soil 1n the levee are no different from any other serpentine
rocks and soil 1n their natural settings. To order action against the levee,
and not other sites where serpentine rocks and soil are found, without stating a
rationale for making the distinction, is not justified. The OUFS contains no
such rationale.
20
OUFS Comments
-------
Section 2 "REMEDIAL ACTIONS ALTERNATIVES"
Section 2.5.3 "OFF-SITE CONTAINMENT" Pg. 2-24, lines 18-21:
"Regulations prohibit transporting hazardous wastes to a non-RCRA-perm1tted
off-site location for disposal. RCRA landfills will be the only off-site
containment technology evaluated 1n this feasibility study."
Comments;
This statement constitutes the basic underlying flaw present 1n both EPA's
approach to the general problem of naturally occurring asbestos and the
Feasibility Study presented In the OUFS under consideration. It represents an
Illogical Interpretation of policy.
While EPA has classified asbestos as a carcinogen, it must nevertheless be
recognized that naturally occurring forms of asbestos present a unique and
distinctly different challenge. The naturally occurring forms of asbestos
found In the soil at the site do not require the stringent criteria and
controls needed for final disposal that other hazardous wastes present. In
many other states within the United States, this material 1s not considered a
hazardous waste as It Is In California. The appropriate long-term disposal
requirement for asbestos-containing soil 1s burial. It does not require
specific liners or other controls at the burial site because asbestos 1s both
chemically Inert and Insoluble 1n water so that migration Is not a problem.
The enormous amounts of this material currently safely contained by nature
support this statement.
Limiting the study to consideration of RCRA landfills Is a failure to consider
reasonable alternatives. It 1s submitted that removal and placement of the
material In a burial site Is an option which must be evaluated 1f the study 1s
21
OUFS Comments
-------
Section 2 "REMEDIAL ACTIONS ALTERNATIVES"
Section 2,5.3 "OFF-SITE CONTAINMENT" Pg. 2-24, lines 18-21 (Cont.):
Comments;
to be complete. For example, consideration might be given to using the rock
and soil as freeway construction fill, so 1t could be paved over with
concrete, 1n much the way that other serpentine rock and soil 1s used. That
1s not to say that the City necessarily endorses this option; 1t 1s simply to
suggest that the OUFS 1s Incomplete without consideration of the option. This
1s especially the case 1f EPA flooding/engineering studies suggest that one of
the cover alternatives would pose a risk of future flood damage.
The fact that the EPA has to discard what may be the safest and best long-term
solution, removal and burial, because EPA's administrative requirements are
Inflexible, has extreme Implications for this project.
The fact that asbestos-containing soils are routinely being excavated and used
within this region and throughout the state, without similar controls or
concern only confounds public perception of this Issue.
Consideration must be given by EPA to not requiring asbestos-containing soil.
to be disposed of In a RCRA landfill. Indeed, the City submits that disposal
In a RCRA landfill 1s not required. 40 C.F.R. Section 300.65. Any available
class II or class III landfill should be considered for the disposal of this
site. Additionally, a non-landfill burial site which will provide a final
resting place for the material, such as a quarry, should also be considered.
22
OUFS Comments
-------
Section 3 "INITIAL SCREENING OF REMEDIAL ACTIONS ALTERNATIVES"
"Effectiveness" Pg. 3-15, lines 20-22:
(Of off-site removal) "However, risks to human health and the environment during
Implementation are likely to be the highest with this alternative, due to the
extensive excavation and hauling activities."
Comments;
This statement seems to be an unsupported opinion. Appropriate mitigation
measures are available and are routinely used 1n various projects to mitigate
the potential dust generation from excavation. Similarly, the transportation of
hazardous waste 1s regulated and, aside from potential vehicle accidents which
could release the soil, the excavation and transport of material should not
present a health threat. It should be recognized that serpentine rocks and soil
are routinely being excavated and hauled throughout California, and In many
other parts of the nation. No restrictions or controls have been set by EPA
which covers those operations. If controls are needed, they should be
promulgated. The Inference to be drawn from the failure to promulgate such
regulations 1s that none are needed.
23
OUFS Comments
-------
Section 3 "INITIAL SCREENING OF REMEDIAL ACTIONS ALTERNATIVES"
Pg. 3-17, lines 17-19:
"The Off-Site RCRA Landfill alternative has also been screened out because
capital costs are seven times more than similar alternatives."
Comments;
Removal costs cited on page 3-18, "Containment Alternatives Summary Table"
Indicate an estimated cost for the "Off-Site RCRA/TSCA Landfill" of $7,969,900.
The other alternative option costs cited range from $1,380,600 to $2,950,400.
The statement that the removal option 1s seven times more expensive than similar
options 1s an obvious error 1n mathematical calculation and raises the question
as to what other errors 1n calculations, perhaps less obvious, are within the
body of this study and have formed the basis for some of the conclusions and
recommendations contained in the document.
24
OUFS Comments
-------
Section 3 "INITIAL SCREENING OF REMEDIAL ACTIONS ALTERNATIVES'
Pg. 3-20. lines 17-19:
"Since this fixation product has been Identified as an asbestos source at the
site, fixation as a remedial alternative may not be consistent with ARARs and
EPA policy."
Comments:
There is no evidence known to the City to suggest that "this fixation product"
1$ present In the operable unit under discussion, I.e., the Ring Levee. To the
City's knowledge, the only form of asbestos 1n the levee 1s naturally occurring
chrysotlle asbestos found 1n Us natural condition 1n the rocks and soil In the
levee. Unfortunately, the quoted language Illustrates shortcomings 1n the OUFS;
the failure to differentiate between types of asbestos, and the failure to
attempt to Identify the source or origin of the asbestos being discussed. The
City submits that the levee 1s a discrete, Identifiable portion of the site.
The failure to specifically Identify "asbestos" and Its source, renders this
portion of the OUFS misleading.
25
OUFS Comments
-------
Section 3 "INITIAL SCREENING OF REMEDIAL ACTIONS ALTERNATIVES'
'Cost" Pg. 3-27, lines 32-34:
"Estimates of total project costs, extrapolated from bench and pilot test, range
from $300 to $14UO/cy (University of Minnesota). Based on a treatment cost of
$125/cy, the estimated capital cost of the Plasma Fusion alternative Is
$8,515,400."
Comments;
This estimate seems to be totally unsupported. An estimate range of cost 1s
first cited, then Ignored for no apparent reason and with no explanation. Based
on the Information provided, the estimated range of costs for the Plasma Fusion
alternative would be $20,436,960 to $95,372,480.
26
OUFS Comments
-------
Section 4 "DETAILED ANALYSIS OF SELECTED REMEDIAL ACTIONS ALTERNATIVES"
Section 4.1.2 "WETLAND ISSUES" Pg. 4-5, lines 3-5:
"Filling activities to provide bulldable land have claimed the majority of the
Bay marshes over the last 100 years."
lines 15-31:
Identified violations Include:
o Executive Orders 11988 and 11900
o Clean Water Act, Section 404(b)(1)
o Endangered Species Act, Section 7
o USFWS Coordination Act and companion Mitigation Policy
o Rivers and Harbors Act, Section 10"
Comments;
No authority 1s cited for the statement "filling activities to provide bulldable
land have claimed the majority of the Bay marshes over the last 100 years." It
Is submitted that the statement may not be justified. It Is suggested that of
the 'lost wetlands", 80t have been converted to salt ponds or similar uses, and
that only lit have been converted to Industrial uses. It Is believed that San
Francisco International Airport, Oakland International and the U.S. Naval A1r
Station, Alameda, account for nearly all of the lit.
As to the alleged violations, It 1s suggested that 1n the absence of notice and
a hearing, followed by an adjudication, It 1s premature for the Agency to state
flatly, without qualification, that "violations have occurred." In order to
preserve Its defenses, and to avoid any adverse Inferences which might be drawn
from failure to comment, the City of San Jose, on Us own bejiaVf± and on behalf
of Its present and former officers, employees and agents, specifically denies
any and all "violations" referred to In the OUFS, expressly or by Implication.
27
OUFS Comments
-------
Section 4 "DETAILED ANALYSIS OF SELECTED REMEDIAL ACTIONS ALTERNATIVES"
Section 4.1.2 "Wetlands Issues" Pg. 4-6, lines 5-7 and 9-11:
"The plan 1s a series of calculations developed by USF&W showing that 1) 194.8
acres of wetlands adjacent to the New Chicago Marsh...". "...22.5 acres of land
would need to be exchanged for the eight acres lost to provide for lost habitat
value."
Comments;
For the record, and to preserve Us objections, the City disagrees with the
USF&W calculations. It 1s submitted that they are without demonstrated
justification In law or fact.
28
OUFS Comments
-------
Section 4 "DETAILED ANALYSIS OF SELECTED REMEDIAL ACTIONS ALTERNATIVES"
Section 4.2 "ANALYSIS OF NO ACTION ALTERNATIVE" Pg. 4-8, lines 7-10 and 32-34:
"For this risk assessment, under the chosen exposure scenario, 1t 1s assumed
that the DHS "worst case" experiment 1s a true worst case, and that the "toy
truck' experiment 1s a plausible worst case."
"It was assumed that a child would play on the levee for 5 hours every day for 6
days during each week of the summer months."
Comments;
The City submits that the "toy truck" experiment has not been demonstrated to be
a vaHd method and that 1t has not been shown to have any scientific validity.
The City disagrees that the "toy truck' experiment has been shown to be a
"plausible worst case."
As to the assumption that a child would play on the levee for "5 hours every day
for 6 days of each week of the summer months" 1t 1s submitted that the OUFS
contains no evidence to support that assumption. Therefore, 1t 1s suggested
that the exposure assumption has not been shown to have a valid basis. The
exposure assumptions should be redone.
29
OUFS Comments
-------
Section 4 "DETAILED ANALYSIS OF SELECTED REMEDIAL ACTIONS ALTERNATIVES"
"COMMUNITY ACCEPTANCE" Pg. 4-14, line 2:
"No Action would not be acceptable to the community given the emergency remedial
work performed to date and the Information EPA has provided on the dangers of
asbestos."
Comments:
This statement seems to be an unsupported opinion. The community has
questioned, at the recent public meeting, why EPA has taken no action regarding
the obvious sources of dust, the community streets and truck yards, but 1s
seemed apparent that they had little knowledge regarding the "remedial work
performed to date" (assuming this 1s a reference to the polymer spraying).
30
OUFS Comments
-------
Section 4 "DETAILED ANALYSIS OF SELECTED REMEDIAL ACTIONS ALTERNATIVES"
"STATE AND LOCAL AGENCY ACCEPTANCE" Pg. 4-14, lines 10-11:
"Local agencies have also expressed concern about the health risks at the levee."
Comment
The unidentified "local agencies" and the nature of their "expressed concerns"
should be Identified 1n the OUTS', and opportunity to address their concerns
should be permitted. Failure to Identify them, and to permit comment, denies
procedural due process to the PRPs.
31
OUFS Comments
-------
Section 4 "DETAILED ANALYSIS OF SELECTED REMEDIAL ACTIONS ALTERNATIVES"
COMMUNITY ACCEPTANCE" Pg. 4-19. line 14:
The soil cover alternative should be acceptable to the majority of the
community."
Comment
The City Is most concerned that the opinions of the community be considered.
Documentation of public meetings 1n which such opinions were expressed should be
provided.
32
OUFS Comments
-------
Appendix 8, "TOXICITY PROFILE FOR ASBESTOS"
"DISCUSSION AND CONCLUSIONS" Pg. B-19, lines 34-37:
"Although Alvlso air contains 10 to 1000 times more fibers per cubic meter than
control area air (which also contains detectable fibers), the levels are more
than a thousand times below occupational standards and thus would not constitute
an alarming exposure."
Comment
This statement should be considered with the statement 1n the April 28, 1988
supplemental sheet that "the levels of ambient airborne asbestos 1n the
% community at present do not appear to differ significantly from other nearby
communities." These statements suggest that selection of a "remedy" before
full evaluation of necessity and appropriateness of the remedy has been
evaluated would be premature.
33
OUFS Comments
-------
Appendix B, "TOXICITY PROFILE FOR ASBESTOS"
Pg. 1-2, line 13:
" o Health criteria are developed for exposure to asbestos via Inhalation
based on a recent Airborne Asbestos Health Assessment Update (EPA
1986). The major uncertainties associated with developing health
criteria for exposure to asbestos via Inhalation Include:
(1) uncertainty associated with extrapolation from high occupational
levels to much lower ambient levels, (2) difficulties associated with
converting between results of different methods of measurement, and (3)
questions Involving the relevance of extrapolating dose-response data
that may be based on different mineral ogle and physical forms.1'
Comment
The quote demonstrates, 1n EPA's own language, that "major uncertainties"
continue to exist with respect to health criteria for exposure to asbestos via
Inhalation. As that Is the case, and as "the levels of ambient airborne
asbestos In the community at present do not appear to differ significantly from
other nearby communities" (OUFS Supplemental sheet, April 28, 1988) It 1s
suggested that selection of a permanent remedy be made at the earliest
appropriate time, I.e., as soon as the "major uncertainties' are resolved. The
City urges the EPA to take prompt action to resolve the "major uncertainties"
and to make Us selection, once the "major uncertainties" are resolved.
34
OUFS Comments
-------
Appendix B, "TOXICITY PROFILE FOR ASBESTOS" Section 2.0
"INTRODUCTION" Pg. 2-1 line 32, and Pg. 2-2, lines 1-2:
"However, asbestosls 1s primarily observed 1n occupatlonally exposed Individuals
following long-term exposure to high levels of asbestos."
Comments:
The quoted language Illustrates the need to closely examine the sweeping
generalizations currently extant regarding asbestos. The statement that
asbestosls Is primarily Involved 1n occupatlonally exposed Individuals
following long-term exposure to high levels of asbestos" would seem to be more
to the point. The Alvlso Ring Levee does not Involve a risk of long-term
occupational exposure to high levels of asbestos, and must be evaluated
differently.
35
OUFS Comments
-------
Appendix B, "TOXICITY PROFILE FOR ASBESTOS"
Section 3 "INITIAL SCREENING OF REMEDIAL ACTIONS ALTERNATIVES" Pg. 3-5, line 7:
"...fine chrysotlle fibers were not studied because they could not be
measured...."
Comments;
The quoted language Illustrates the points that not all "asbestos" studies are
studies of the same fibers, and that results of a given study are not
necessarily applicable to all forms of asbestos particularly chrysotlle
asbestos. For this reason, 1t 1s submitted that the health effects and exposure
assumptions 1n the OUFS should be reevaluated, using studies specific to
chrysotlle.
36
-------
Appendix B, "TOXICITY PROFILE FOR ASBESTOS"
iSection 3 "INITIAL SCREENING OF REMEDIAL ACTIONS ALTERNATIVES" Pg. 3-6, line 13:
"The degradation of chrysotlle 1s greatest,"
lines 18-19: '
"It has been difficult to assign a scale of relative pathogenlcity to various
asbestos types.*
lines 22-25:
"It has been suggested that chrysotlle 1s less hazardous than other asbestos
types. However, high rates of lung cancer 1n asbestos workers have been related
to all types of asbestos Including chrysotlle (Dement 1982, 1983a,b, EPA 1986)."
Comments;
It 1s submitted that chrysotile's fiber size and degradation character,
especially In nonoccupatlonal settings are significant factors which merit
closer attention. Moreover, that "high rates" 1n asbestos workers have been
"related" to all types of asbestos, Is not to say that much lower ambient
airborne levels of chrysotlle asbestos will also "relate" to "high rates" of any
particular disease. The OUFS falls to make this Important distinction.
37
OUT? P/-i
-------
Appendix 8, "TOXICITY PROFILE FOR ASBESTOS"
Section 3 "INITIAL SCREENING OF REMEDIAL ACTIONS ALTERNATIVES" Pg. 3-7, lines
1-6:
"It should be emphasized that there 1s still considerable controversy as to
whether or not croddolHe or other amphlbole asbestos types are more
carcinogenic than chrysotlle (EPA 1986). Great Britain, Canada, and Sweden, for
example, have Imposed far more rigid standards for croddollte than other
varieties of asbestos. In contrast, the United States has no specific standard
for any specific asbestos mineral."
lines 16-17:
"Unfortunately, the differential risk associated with different fiber types 1s
still not completely understood (EPA 1986)."
Comments;
To impose enormously expensive requirements which purport to solve a problem
allegedly created by a naturally occurring substance found 1n rocks and soil 1n
Its natural state 1n widespread areas, before the "considerable controversy" 1s
resolved, and the differential risks are understood. Is to act on the basis of
Insufficient Information. In this setting, remedial orders would be arbitrary
and capricious.
38
-------
Appendix B, "TOXICITY PROFILE FOR ASBESTOS
Section 4 "DESCRIPTION OF HEALTH EFFECTS IN HUMANS
Section 4.1 "Carcinogenic effects" Pg. 4-1, lines 5-8:
"The cardnogenldty of asbestos following 1ngest1on has not been conclusively
established; however there 1s available data from occupational studies that
suggest a link between Inhalation and subsequent 1ngest1on of asbestos and
gastrointestinal cancer."
lines 23-28:
"A limited number of studies have suggested a possible association between
Increased Incidence of human cancers and exposure to asbestos 1n nonoccupatlonal
settings. These studies have examlne.d the occurrence of asbestos-related
disease among family contacts of asbestos workers, residents living 1n the
vicinity of asbestos facilities or other sources of ambient asbestos,..."
lines 29-30 and page 4-2, lines 1-2.
"However, these types of associations have not been extensively studied, and in
many cases, results of the studies are Inconclusive or equivocal. Furthermore,
exposure data often are incomplete or lacking."
Comments:
The quoted language Illustrates the limitations of the data available.
Moreover, Alviso is a nonoccupatlonal setting "where the levels of ambient
airborne asbestos in the community at present do not appear to differ
significantly from other nearby communities." (OUFS supplemental sheet, April
28, 1988). To order remedial action before the OUFS contains data adequate to
Justify the remedial action contemplated would be to act on "inconclusive or
equivocal" data. Given these limitations, and the limited, inconclusive,
equivocal information presented in the OUFS, a decision based on the OUFS would
be arbitrary and capricious.
39
-------
Appendix B, "TOXICITY PROFILE FOR ASBESTOS
"Section 4, "DETAILED ANALYSIS OF SELECTED REMEDIAL ACTIONS ALTERNATIVES" Pg.
4-2, line 1:
"...results of the [nonoccupatlonal] studies are Inconclusive or equivocal.
Furthermore, exposure data often are Incomplete or lacking."
Comments;
The quoted language again Illustrates-that the nonoccupatlonal studies are
"Inconclusive of equivocal." Selection of a permanent remedy should be based on
conclusive, unequivocal studies, and It Is suggested that the selection process
Include such studies.
40
-------
Appendix B, "TOXICITY PROFILE FOR ASBESTOS"
Section 4 "DETAILED ANALYSIS OF SELECTED REMEDIAL ACTIONS ALTERNATIVES"
Section "ANALYSIS OF NO ACTION ALTERNATIVE" Pg. 4-7, lines 24-25:
^^
Comments:
This language, too, Illustrates that different forms of asbestos may well carry
different risks. We also note that chrysotlle seems to be associated with the
lowest risks.
41
-------
Appendix B, "TOXICITY PROFILE FOR ASBESTOS"
Section 4.0 "DESCRIPTION OF HEALTH EFFECTS OF ASBESTOS" Pg 4-8, lines 5-7:
"However, chrysotlle 1s more vulnerable to add and shows a tendency to split
Into smaller fibers or to dissolve 1n the lung (Morgan and Seaton 1984)."
lines 24-25:
"Information concerning the occurrence of asbestos-related disease among persons
not directly exposed at the workplace Is limited.*
Comments:
___^___ ,
The comment as to the vulnerability of chrysotHe (to dissolve In .add, to split
Into smaller fibers, or to dissolve In the lung) Indicates that the risks of
chrysotile exposure maxwell be lower than for other forms of asbestos.
In addition, the "limited" Information as to the occurrence of asbestos-related
diseases among persons not directly exposed at the work place* suggests that
additional Information should be obtained as soon as possible. As soon as 1t
becomes available, but not before, EPA should select a remedy, based on that
Information.
42
-------
Appendix B, "TOXICITY PROFILE FOR ASBESTOS"
"DOSE-RESPONSE ASSESSMENT" Pg. 6-6, lines 11-12:
"The risks shown in Table 6-1 are best estimates for inhalation exposure to
fibers released from a variety of asbestos products used in the United States."
lines 17-18:
"In some pure chrysotile exposure circumstances (e.g., mining and milling), the
risk may be overestimated."
Comment
Again it appears that the generalized statements in the OUFS as to the risks
posed by asbestos may not apply to the risk posed by the naturally occurring
chrysotile asbestos in the levee. There is a differential, and 1t should be
taken into account that a policy which fails to consider the differences in the
risks is deficient. For that reason, the OUFS is inadequate, as this
differential has not been addressed.
43
OUFS Comments
-------
Appendix B, "TOXICITY PROFILE FOR ASBESTOS"
Section 7, "SUMMARY OF CRITERIA" Pg. 7-1, lines 8-13 and 19-20:
"The criteria for exposure by Inhalation to asbestos 1n ambient air shown 1n
Table 7-1 are expressed In terms of PCM fibers per ml (I.e., fibers 5 microns
1n length, aspect ratios 3.1). These limitations are required primarily
because the majority of available studies on which the criteria are based
employed PCM analytical techniques. Thus. Individual asbestos minerals could
not be distinguished and were not considered separately."
"Asbestos counts, even when limited to the fraction greater than 5 microns,
differ widely between PCM and TEM."
Comment
The.blanket Indictment of asbestos is not completely justified. EPA should
attempt to conduct studies evaluating the individual asbestos materials. Only
when this is done can the OUFS serve as a basis for rational decision.
44
OUFS Comments
-------
Appendix C "WETLANDS MITIGATION PLAN"
Pg. C-l, lines 13-18:
"This policy requires that where Impacts to the wetlands are unavoidable, land
must be provided to offset or compensate for those Impacts. At Alvlso, this
means that wetlands must be Identified to offset the loss of approximately 8
acres of land to the levee and the additional land lost due to the levee
remediation.
Comment
If the U.S. F1sh and Wildlife Service's mitigation policy Is to be observed, the
specific statutory basis, and all relevant Implementing regulations, should be
presented as a cornerstone of the policy. A reference to "policy" without
providing specific authority as the basis of the policy, 1s an inadequate
foundation for exactions. Citation to "policy" without citing authority,
requires commenters to engage in speculation as to the basis for the "policy,"
and denies them the opportunity to effectively challenge the policy. Moreover,
to the extent that the creation of new wetlands 1s contemplated as a remedial
requirement, the U.S. Fish and Wildlife Service should be required to present
evidence that "conversion-1nto-wetlands" projects are effective, and that the
uplands loss is justified. The OUFS fails to address these points. Until it
does, it 1s deficient. Moreover, as pointed out earlier, the cited amount of
lost wetlands, 8 acres, conflicts with a COE estimate of 4.2 acres lost by
construction of the levee.
45
OUFS Comments
-------
Contents Submitted by
State and Federal Agencies
-------
United States Department of the Interior
FISH AND WILDLIFE SERVICE
Division of Ecological Services
2800 Cottage Way. Rra.E-1803
Sacramento, California 95825
May 10, 1988
Ms. Nancy Woo
Program Manager - South Bay Asbestos Site
U.S. Environmental Protection Agency, Region IX
215 Fremont Street
San Francisco, California 94105
Subject: South Bay Asbestos Site Interim Clean-up Action - Operable Unit
Feasibility Study
Dear Ms. Woo:
It is our understanding that the Environmental Protection Agency is
proposing a permanent solution to asbestos contamination resulting from the
unauthorized Alvlso Ring Levee as noted In the informational filer
accompanying the feasibility document. Our earlier comments addressed
Interim clean-up proposals.
We are concerned about statements regarding the future of the unauthorized
fill made In the document and the failure of this effort to provide
mitigation to offset wetland losses Incurred by placement of the
unauthorized fill placed In 1983 or the clean-up efforts. We are also
concerned about the use of any draft technical information pertaining to
mitigation that we provided earlier for the temporary solution proposed by
the Environmental Protection Agency - the emergency soil capping
alternative.
On page 3-15 the discussion of the off-site containment alternative
contains the sentence stating that "After the levee is removed and
replaced, the levee would have restricted use." This statement Implies
that replacement of the unauthorized levee Is a foregone conclusion. It Is
not. The asbestos clean-up program does not take the place of the public
Interest review process required In the Corps of Engineers regulatory
program.
On page 4-5 the document references the Service's Mitigation Policy and
states that our mitigation goal for wetlands Is no net loss of in-kind
habitat values. This Is Incorrect. Our mitigation goal Is no net loss of
in-kind wetland acreage or value (April 17, 1987 letter In Appendix C).
AIR DIVISION
U.S. EPA, REGION 9
MAY 12 1988
RECEIVED
-------
The Service previously provided comments and technical information on
interim clean-up proposals. We recommended that removal of the
unauthorized fill and restoration of wetland values to the area covered by
the fill is the preferable solution from a fish and wildlife standpoint.
In addition, we recommended that mitigation be provided to offset the
interim loss of wetland values for the period the unauthorized fill was in
place. We continue to recommend removal of the material and restoration of
wetland values and the provision of mitigation for the loss of wildlife
values that has occurred to date. We also maintain that It is necessary
for the Environmental Protection Agency to initiate consultation under the
auspices of Section 7 of the Endangered Species Act.
If you have any questions about these response, please contact Don Palawski
or Peggie Kohl at (916) 978-4613. If you have any questions on endangered
species Issues, contact Peter Sorensen at (916) 978-4866.
Sincerely yours,
James Jr. MCKevltt
Field Supervisor
cc: Reg. Dlr.. (APWE), FWS, Portland, OR
Dlr., CDFG, Sacramento, CA
DOI. San Francisco (Attn: Pat Port)
COE, San Francisco District, San Francisco
Reg. Mgr., CDFG, Reg. Ill, Yountvllle
DOI, Solicitor. San Francisco
SESO, Sacramento
-------
of QIaltfi
GOVERNOR'S OFFICE
OFFICE OF PLANNING AND RESEARCH
14OO TENTH STREET
SACRAMENTO 98814
GEORGE OEUKMEJIAN
aow*w<0" (916) 323-7180
DATE: M«y ??, 1988
TO: Ms. Nancy Woo
Environmental Protection Agency
215 Fremont Street (T-^-3)
San Francisco, CA 9^105
PROM: Office of Planning and Research
State Clearinghouse
RE: SCH 880U2901Feasibility Study, South S*y Arbestos Site, Ping Levee
Operable Unit. Santa Clera County.
As the designated California Single Point of Contact, pursuant to Executive
Order 12372, the Office of Planning and Research transmits attached comments
as the State Process Recommendation.
This recommendation la a consensus; no opposing comments have been received.
Initiation of the "accommodate or explain" response by your agency is,
therefore, In effect.
Sincerely,
Ben A. Williams
Interim Director
Attachment
cc: Applicant
-------
Resources Building
1416 Ninth Street
95814
(916) 445-5656
TOO (916) 324-0804
Tifornti Conservation Coroi
Department at Boiling ma Waterways
Department ot Conservation
Department ol Fun ana Game
Department of Forestry
Department ol Parks and Recreation
Department ot Water Resources
GEORGE DEUKMEJIAN
GOVERNOR OF
CALIFORNIA
THE RESOURCES AGENCY OF CALIFORNIA
SACRAMENTO. CALIFORNIA
Air Resources 3o*ra
California Coastal Commission
Caii'ornia Tanoe Conservancy
California waste Management
Board
Colorado River Board
Energy Resources Conservation
And Development Commission
San Francisco Bay Conservation
and Development Commission
Slate Coastal Conservancy
Slate Lands Division
Slate Reclamation Board
Slate Water Resources Control
Board
Regional Water Quality
Control Boards
Ms. Nancy Woo
Environmental Protection Agency
215 Fremont Street (T-4-3)
San Francisco, CA 94105
Dear Ms. Woo:
May 25, 1988
The State has reviewed the Feasibility Study, South Bay Asbestos Site,
Ring Levee Operable Unit, Santa Clara County, submitted through the Office
of Planning and Research.
We coordinated review of this document with the Air Resources Board, Waste
Management Board, San Francisco Bay Regional Water Quality Control Board,
and the Departments of Fish and Game, Health Services, Parks and Recreation,
Transportation, and Water Resources.
The Department of Fish and Game and the San Francisco Bay Regional Water
Quality Control Board have prepared the attached comments for your con-
sideration.
Because properly packaged asbestos can be disposed in non-hazardous landfills,
the Waste Management Board would like to comment on any landfilling remedy
that may be imposed if the preferred alternatives are not implemented. Any
questions regarding these comments should be directed to Michael Leaon of the
Board's Local Planning Division at (916) 322-2674.
Thank you for providing an opportunity to review this document.
Sincerely,
Attachments (2)
cc: Office of Planning and Research
(SCH 88042901)
* -
Gordon F. Snow, Ph.D
Assistant Secretary for Resources
-------
Agoncy
Memorandum
To
The Honorable Gordon K. Van.Vleck
Secretary for Resources
1416 Ninth Street
Sacramento, CA 95814
Attn: Gordon F. Snow, Ph. D
Projects Coordinator
Data
May 25, 1988
From
Department of Fhh and Gam*
Subject: South Bay Asbestos Site, Ring Levee Operable Unit Feasibility
Study, City of Alviso, Santa Clara County, SCH #88042901
Department of Fish and Game (Department) personnel have reviewed
the Operable Unit Feasibility Study South Bay Asbestos Site
Interim Ring Levee, City of Alviso, Santa Clara County, SCH
#88042901. The study examines alternatives for remedying the
unauthorized placement of asbestos-contaminated fill by the City
of San Jose to create a levee around Alviso following flooding
in 1983. The placement of the levee resulted in the loss of
approximately 4.2 acres of seasonal wetlands and transitional
habitat. Capping of the interim levee would result in the loss
of an additional 4 acres of wetlands.
It is the Department's policy that no project should result in
a net loss of either wetland acreage or wetland habitat value.
Any action taken to remedy the problems created by the interim
levee should incorporate measures to offset the loss of wetlands
from both the initial placement of the interim levees and any
loss of wetlands which result froa the corrective action. In
addition, compensation should be provided for the loss of
habitat values incurred since the interim levee was constructed.
Because of the asbestos-contaminated nature of the dike and the
fact that it was constructed without benefit of a Corps permit
or any other public review process, we recommend removal of the
dike and restoration of the impacted site to preproject
conditions. Further, a means of compensating for the temporary
loss of wetland habitat values since the dike was constructed
should be developed in consultation with the Department and the
U. S. Fish and Wildlife Service. Should the City of Alviso
and/or the County of Santa Clara elect to construct a dike
composed of nontoxic material, then such a project should be
subject to the same public review criteria as any other similar
project pursuant to the requirements of the California
Environmental Quality Act, the National Environmental Policy
Act, and the Corps of Engineers Section 404 permit program.
-------
-2-
Questions concerning our comments should be directed to Carl
Wilcox, Associate wildlife Biologist; or Theodore Wooster,
Environmental Services Supervisor, at (707) 944-5500.
Pete Bontadelli
Director
cc: Peggy Kohl, U. S. Fish and Wildlife Service
Corps of Engineers, San Francisco District
-------
CALIFORNIA REGIONAL WATBl QUALITY CONTROL BOARD
KAN FIANCUCO IAT KAON
1111
May 137 1988
File No. 2188.05mad
Mr. Glenn Stober
State Clearinghouse
1400 Tenth Street Rm. 121
Sacramento, CA 95814
Dear Mr. Stober,
Subject: South Bay Asbestos Site, Ring Levee Operable Unit
Feasibility Study, SCHI 88042901
Alviso, Santa Clara County
This document evaluates alternatives for remedial action at the
interim ring levee, part of the South Bay Asbestos CERCLA
Superfund site in Alviso, California.
We have reviewed the subject document and we have the following
comments.
(1) The Regional Board* s Basin Plan requires that any
application for proposed fill activity within its
regulatory jurisdiction include mitigation located within
the same section of the Region, wherever possible, so that
there will be no net loss of wetland acreage and no net loss
of wetland value when the project and the mitigation lands
are evaluated together. Since this project will result in a
loss of wetland value, the Regional Board will require
mitigation.
(2) Section 404 of the Clean Water Act requires a permit from
the U. S. Army Corps of Engineers prior to the discharge of
fill material to waters of the United States. Under Section
401 of the Clean Water Act, the Regional Board must certify
that Section 404 permits issued by the Corps comply with
water quality standards established by the State.
(3) We have questions as to the impacts of this project on water
quality in the New Chicago Marsh. We would like to review
management plans for this area.
Thank you for providing this opportunity to comment. If
any questions, you can contact me at (415) 464-4268.
Warifer Resource Control Engineer
-------
Contents Submitted by
Other Interested Parties
-------
May 25, 1988
Ms Nancy Woo
Remedial Project Manger
U.S. Environmental Protection Agency
215 Fremont Street (T-4-3)
San Francisco, CA 94105
Ret South Bay Asbestos Superfund Site
Over the five years since asbestos was discovered in the Alviso
Ring Levee we have been presented with numerous reports and attended
many meetings. It is somewhat disconcerting that so much discussion
and so little action has resulted. As frustration levels in the
community have increased attendance at your meetings and reiteration
of our preferences has decreased.
Nevertheless, the data supports our original positions on the
various options, and our positions have solidified. Of the five
alternatives presented we wish to make comments on each, and then
state a preference by the order in which we comment. From worst to
best they are as followsi
Option 1: No Action. This is clearly unacceptable as it
does not solve the now-proven health risk problem. It is,
unfortunately, the option which is now in place through the
inaction of the City of San Jose, the Santa Clara County
Water District, the State of California Department of Health
Services, and the U.S. Environmental Protection Agency. It
is imperative that this paralysis of inaction be cured, and
this option be eliminated.
Option 3s The Gunite Cover. This option has inherent
disadvantages. This first is that the asbestos material
will still be present. Leakage and cover deterioration will
allow asbestos to "escape" from under the cover,
exacerbating structural weakness and so, again, allow
further leakage. The second problem is aesthetic. The
-ring wall" will attract graffiti. With or without this
"public art", the wall will be ugly, and detract from
property values. In addition, the lack of vegetative cover
will no doubt present serious problems for the surrounding
areas of abundant but threatened wildlife. This is not an
acceptable alternative.
-------
Page 2
South Bay Asbestos Superfund
Site
Option 41 Combination soil and gunite While this option is
not as bad as option 3, it does, in the gunited areas,
present the same disadvantages. This is made worse by the
placement of the gunite areas in the most visible areas of
the community. The result is an unacceptable alternative.
Option 2 i Soil cover. If installed and planted correctly,
this could be an attractive improvement to the existing Ring
Levee. If the design is what the engineers assume, this
more flexible cover should contain the asbestos bearing
material. The questions that disturb us are: Can such a
cover be installed correctly? And how durable will the
cover be? If the design is correct, the installation
correct, and there is no wear, then this is a good option.
The necessary assumptions are questionable, however.
Option 5t Removal and replacement. Oddly, this was the
original option requested by the community half a decade
ago. It was not proposed at that time because of the risk
of exposure to dust during removal. That short terra problem
no longer seems relevant after years of low level exposure.
The long term risks would be completely removed. This will
result in considerable peace of mind in the community and a
clear end to the problem. The new ring levee can be
constructed in the proper locations (on easements and
outside of the Wildlife Refuge), and to the same aesthetic
and environmental standards as the soil-cover option, and no
longer has to be taller than required for basic flood
protection. This is by fbf the most preferable of the
options presented.
It must be noted that, while this option was brought up by a
member of the community, it was not, as you stated in your
announcement for the extended comment period, announced as an
alternative by EPA. It has long been considered and presented, but
was conspicuous by absence from your presentation at the April 28,
1988 meeting.
It is our strong preference that Option 5 be implemented. Option
2 appears acceptable, but does not appear to be reliable. Options 1,
3, and 4 are not acceptable, and will be strongly opposed.
We remain concerned that the inertia of inaction will prevail, and
that the funding available will all be spent on studies and meetings
and analysis. While we agree that incautious action has placed us all
in this situation, and that discussion is necessary before action,
there must be action taken in order for the problem to be rectified.
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Page 3
South Bay Asbestos Superfund
Site
Five years of consistent test results and expressions of
preference by the community seem to be sufficient to demonstrate the
correct course of action. We urge you to take action - removing the
contamination and replacing the levee - immediately.
Patiently your,
CraigJParada and Sharon Rice
1450 Wabash Street
P.O. Box 377
Alviso, CA 95002
cc: U.S. Senator Alan Cranston
U.S. Senator Pete Wilson
U.S. Represenatative Don Edwards
California Senator Alfred E. Alquist
California Assemblyman John Vasoncellos
San Jose Councilwoman Shirley Lewis
(announcement attached)
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SOUTH BAY ASBESTOS SUPERFUND SITE
Alvlso, California
May 11,1988
EPA ANNOUNCES ADDITIONAL ALTERNATIVE BEING CONSIDERED
FOR CLEANING UP THE RING LEVEE AND
EXTENDS PUBLIC COMMENT PERIOD ON STUDY UNTIL MAY 25th
As you know, the U.S» Environmental Protection Agency (EPA) released the "Operable Unit Feasibil-
ity Study" for the South Bay Asbestos Superfund Site on April 12,1988 for public comment. The
Feasibility Study evaluates alternatives for addressing the ring levee contamination In Alviso. The
four alternatives considered in detail for the ring levee are: (1) No action; (2) Covering the ring levee
with a soil cover; (3) Covering the ring levee with a gunite coven and (4) Covering the ring levee with
a combination of soil and gunite cover. This fourth alternative is EPA's preferred alternative.
At a community meeting held In Alviso on April 28th, 1988, EPA announced that there is a fifth
cleanup alternative that came into consideration after releasing this report. This alternative involves
removing asbestos-contaminated fill from the old levee and replacing it with clean fill to form a new
levee. This alternative was ruled out as a viable alternative in the Feasibility Study due to the high
cost Involved if EPA conducted the action. Recently, however, two of the parties who are potentially
responsible for the contamination at the levee have indicated the possibility of their conducting this
levee removal and replacement. Because the four alternatives that we looked at in detail did not
include this alternative and therefore was not put forth as an alternative on which we asked for your
ment, EPA decided to extend the comment period by two weeks and to solicit your input on this
alternative, as well as the other four.
The Operable Unit Feasibility Study is available for your review at the two Information Repositories
listed on page 2; an April 1988 fact sheet summarizing this study Is also available at these locations.
EXTENDED COMMENT PERIOD : May 11th to May 25th
EPA has already received some comments on the Feasibility Study. These include comments made
at the April 28th community meeting. To ensure that all Interested parties have a chance to com-
ment on the four alternatives Initially considered, as well as on the new fifth alternative, the public
comment period has been extended for two weeks from May 11th to May 25th. This extension is not
expected to delay site cleanup activities.
Written-comments on the study and on all the alternatives should be submitted to:
1 Nancy Woo
Remedial Project Manager
U.S. Environmental Protection Agency
215 Fremont Street (T-4-3)
San Francisco, CA 94105
will consider all comments received during the comment period when selecting a final cleanup
for the ring levee contamination.
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Brenda Monroe
Post Office Box 82
1385 State Street
Alviso, California 95002
(408) 263-8871
May 2, 1988
U.S. Environmental Protection Agency
Attention: Nancy Woo
Remedial Project Manager
215 Fremont Street
San Francisco, California 94105
E.P.A.,
I am very upset about this whole asbestos scare in Alviso. I have
many questions:
Who discovered and reported the asbestos content in the
dirt?
Why did the City of San Jose instruct the trucking company
who hauled the dirt to get the dirt from a pit that is "known"
to have asbestos laden dirt, even though there are pits closer
to Alviso with "clean" dirt?
Why does the city allow that pit with asbestos laden dirt to
remain open and doing business if the dirt is so toxic?
Why was it reported to the media that Alviso is one of the
most toxic sites in California because of the levee with
asbestos in it, when the pit where the levee dirt came from is
worked every day with heavy equipment and has one
thousand times more dirt which is tossed about in the air
instead of just sitting there levee-like?
-------
Why didn't the city get the damn dirt out of Alviso as soon as
they found out what they had done?
Why is so much tax payer's money being spent on project
managers and community relations coordinators, and time
wasted while little kids whose parents can't read may be
playing on that levee that is supposed to be so toxic?
Isn't it so that much of the dirt in this valley and up the
peninsula has asbestos in it?
Aren't trucks hauling asbestos laden dirt from a future
freeway site in San Jose, without tarps, to the same pit that
provided the dirt for the Alviso ring levee?
What is going on?
These community meetings and newsletters seem like some kind of a
smoke screen to cover up what really is going on.
Brenda Monroe
A Concerned Citizen
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May 4, 1988
Nancy Woo
Remedial Project Manager
U. S. Environmental Protection Agency
215 Fremont St.
San Francisco, CA 94105
RE: EPA - MEETING OF 4-28-88
Clean up Actions for Asbetos Contamination at Alviso, California
Nancy;
These are my comments and concerns regarding above;
I. LEVEE
A. I am wondering if the easements needed to obtain access for
clean-up may still be in effect since levee was built in 1983,
only five years ago. Why do the easements cost so much? On
our property close to Sacramento, ATT wanted to pay us only
$.50 per foot for a 20 foot easement onto our land.
B. What would action be if levee needed emergency repair or we
had another major flood? Couldn't EPA just go onto the
property to secure "environmental protection" and what makes
this different? Isn't there a health problem now that would
be considered an emergency situation for the environment -
for US!! ?
EPA says it has no authority or power to do anything by itself
so if I brought home a fuel rod from a nuclear power plant,
(Uranium 222), you're telling me you wouldn't have someone
remove it immediately? I think this problem with the asbetos
is just as important.
II. HEALTH
A. I request that Medical studies of this area are started.
1. Who can I contact to request this?
2. Are there are any other problems with water or other
harmful materials found in this area?
B. At the meeting, several people were concerned about the
dust control problem from the trucking lots...
I am from Iowa and if a person lives on a gravel or dirt road
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Page 2
EPA - Clean up Actions for Asbetos Contamination at Alviso, California
to control dust kicked up by tractors, trucks and other
vehicles we use oil. Couldn't a coat be put on the dirt
parking, lots? I can't see the good watering the streets
and lots**** In a half an hour during the summer that water
would have dried up and the problem would still be there!!
It's a waste of time and water.
1. What is the possibility of getting the truck yards
to pave their lots? Are there any legal procedures
a town could go through to try to pass some control
over this?
III. SUMMERSET MOBILE HOME PARK
A. Please contact owner of land park is on to see if you can
test for asbestos or provide me with his/her phone number
and address so I can contact directly.
B. Contact person who owns property directly in front of the
mobile home park, where trucks are dumping rocks from some
quarry.
C. While walking, we seen yellow flags warning about asbestos
at Summerset's front drive way - on both sides (toward vacant
lot and toward Guadalupe River)
1. Please check for these flags and see what the testing
was when these flags were put up.
2. When were the flags put there?
3. The area toward Guadalupe River must be county owned,
so you should be able to check there without having
to get permission.
IV. SOIL COVER
A. If above is used to correct situation, what erosion problems
can you forsee?
B. Has this alternative been used elsewhere for same problem?
I still don't understand why this matter is taking so long! Your sheet
of 4-28-88, Operable Unit Feasibility Study, South Bay Asbetos Area Super-
fund Site, Alviso, California states "A numeric risk characterization is
not necessay for EPA to proceed with clean-up actions at this site because
of the documented hazardous propensities of asbestos, the documented existence
of asbetos in the study ajea» and the documented potential for release of
that asbetos into the air', yet you are still testing the soil to see what
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Page 3
EPA - Clean up Actions for Asbetos Contamination at Alviso, California
you come up with.
JUST HOW BAD IS THIS WILL WE EVER REALLY KNOW! !
Waiting for your response and your action.
Very truly yours,
Diane K. Hein
P.O. Box 604
Summerset Mobile Home Park // 303
Alviso, CA 95002
Work i 408/739-0934 X 207
Home // 408/945-8866
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= Corporate Office & Alviso Health Center
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May 25, 1988
Nancy Woo
Remedical Project Manager
U.S. Environmental Protection Agency
215 Fremont Street (T-4-3)
San Francisco, CA 94105
Dear Ms. Woo:
I am writing regarding the alternatives being considered for
cleaning up the Alviso levee that is contaminated by asbestos.
The contaminated levees are not only an environmental hazard they
are also a prodigious architectural (though necessary)
monstrosity.
Our organization is a long-time Alviso based community health
center (founded in 1967) that has invested inordinate level of
time, resources, and services to the community and obviously have
a vested interest in not only the community's infrastructure but
also it's future.
We wholeheartedly support the EPA levee asbestos clean up
campaign of removing this serious health hazard, and urge that
this go forward expeditiously. Procrastinations have for too
long hindered resolving this environmental nightmare.
We urge an asbestos clean up effort that will also include making
the levees less obtrusive and hideous.
We urge the complete removal of asbestos contaminated fill and a
replacement of clean fill to form a new levee. Furthermore, we
urge that the "new levee" be landscaped with trees and other
greenery with walking scenic trails, rest areas, and proper
paving and drainage in order to prevent mud run-off during the
raining season. We think that these improvements will screen the
obtrusion of the levees and provide an opportunity for the
Alviso and other south bay residents to enjoy some of the
unique characteristics of our community. Thank you.
cerely,
Roy Jimenez I
Vice President, Capitated Health Systems
RJ:ic
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Question and Answer Period of the
April 28. 1988 Public Meeting
(Pages 30 through 66 of the Meeting Transcript)
-------
1 we let Juliana catch her breath and Jill can catch her
2 fingers. So, we'll reconvene, then.
3 (Recess)
4 CHAIRMAN CLIFFORD: I think we should get back
5 into this and see if we can answer your questions and
6 listen to your comments. So, if everybody could take a
7 seat, maybe we can get started again. Juliana, are you
«
8 ready? We might not need this, but I'll keep it on, just in
9 case. Okay, it's now open for questions. Who wants us to
10 answer the first question?
II MR. GROSS: I'll kick it off. Bob Gross, for the
f2 record. I better give you a written comment covering some
13 of these issues here, but I'd like to point out, I don't
14 know who did your land value and marketing research in yourl
15 study, but he must have been smoking marijuana because you
16 show, in your coraparables, that a home here may be worth
17 $24,000.00, based on your report. I find that, you know, I
18 really find that maybe it's acceptable to EPA and the City
19 of San Jose, but not to people who own property here.
20 Another thing is, I'd like to know who is going to be
21 held accountable for this so called, "asbestos", quote,
22 unquote, in the ring levy that's on private property?
23 CHAIRMAN CLIFFORD: Is that a question?
24 MR. GROSS: That's a question.
25 CHAIRMAN CLIFFORD: Okay, the question is, who is
30
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1 responsible for the portions of the ring levee that are on
2 private property?
3 MR. GROSS: Right, and to follow up with that, my
4 question is, who is going to do to the impact on that real
5 estate? For example, today in the Mercury News, the Mercury
6 News, this morning, they got a deal here how asbestos
7 devalues properties. Who is going to be held accountable
8 for that?
9 CHAIRMAN CLIFFORD: As far as we're concerned,
jg we're responsible for dealing with and making sure that the
II asbestos in those portions of the ring levee on private
12 property are controlled.
13 MR. GROSS: Okay, are you telling me that if you
14 come in and cap that on private property and I have a
15 building that's going to be constructed there, I can not
K break that seal, and then am I going to be held accountable
17 for the asbestos that is air borne as a result of that?
18 CHAIRMAN CLIFFORD: No, we're not going to tell
19 you that you can't break the cover.
20 MR. GROSS: You didn't answer my question. Am I
21 going to be held accountable if I break that seal?
22 CHAIRMAN CLIFFORD: Yes.
23 MR. GROSS: But you're on my land and you didn't
24 have the authority to come on there. I just suggest this
25 and I'm going to tell you the general opinion of the people
31
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1 here in Alviso: Get the damn thing out.
2 CHAIRMAN CLIFFORD: For those other people who
3 have portions of the ring levee on their property that we're
4 going to be seeking easements for, as the owner of that
5 property, you are responsible for that on your property.
6 MR. GROSS: Not if we didn't put it there.
7 CHAIRMAN CLIFFORD: That's
8 MR. GROSS: Bullshit.
9 CHAIRMAN CLIFFORD: That doesn't mean you're the
10 only person responsible.
11 MR. GROSS: I know it. I'm speaking for a lot of
12 other people tonight. We didn't put it there.
13 CHAIRMAN CLIFFORD: We know you didn't put it
14 there.
15 MR. GROSS: Okay.
16 CHAIRMAN CLIFFORD: We know who did put it there.
17 i think we all know that the City of San Jose is responsible
18 for putting that serpentine rock and soil on whosever
19 property it happens to be on. We also know that easements
20 weren't necessarily obtained in all cases. So, we know
21 EPA is not an agency that assigns liability. We identify
22 those responsible parties who might be potentially
23 responsible, but it's a court that actually makes a decision
24 as to who's liable. All I can say is, if you own property
25 that has hazardous material on it, as an owner of that
32
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I property, whether you put it on or not, you're considered
2 potentially liable. We're not going to make the decision.
3 The court will make that decision. That's not our decision.
4 Yes, sir? could you please state your name, for the
5 record?
6 MR. SHOCKLEY: Dave Shockley. (phonetic) Why is
7 it that this ring levee has got so much asbestos in it that
g I've hauled out of that pit down there, all over this valley
9 and this is the only one that's getting goofed about it.
10 CHAIRMAN CLIFFORD: The question is, that this
It gentleman has hauled other truck loads of soil out of the
12 same quarry, the Raisch Quarry, that the material from the
13 Alviso ring levee was drawn from, and he's moved it to other
14 places in the Santa Clara Valley besides the town of Alviso.
15 Why are we just worried about Alviso and why aren't we
16 dealing with the other portions, the way it's asked. The
17 simple answer is that we know where it is in Alviso, but we
tg don't know where else it is in the valley.
19 MR. SHOCKLEY: Come to me and I can take you to a
20 l°t of places.
21 CHAIRMAN CLIFFORD: This gentleman in the white
22 had a question?
23 MR. ZANGER: No, I didn't have a question. I had
24 a statement. Earl Zanger is the name. If you had a map of
25 those locations, what would your actions be?
33
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1 CHAIRMAN CLIFFORD: The question is, if we had aj
2 map of where the other soils from the quarry had been
3 disposed, what would we do about it?
4 MR. ZANGER: Would they expand the site location?
5 CHAIRMAN CLIFFORD: No, we wouldn't expand the
6 site location.
7 MR. ZANGER: The material is from the same
8 source.
9 CHAIRMAN CLIFFORD: What we probably would do is
10 ask the state or the city or the county to do some
11 investigating of the different sites that the soil was
12 disposed at and make an assessment to whether or not they
13 thought any of those situations warranted EPA involvement.
14 If they did, we would probably look into it. Yes?
15 MS. CARROT: Where is the site of the quarry?
16 CHAIRMAN CLIFFORD: The question is, where is the
17 site of the quarry. I might look to Nancy to maybe point
18 that out on the map. Can I get your name, please, for the
19 record?
20 MS. CARROT: LaVonne Carrot. (phonetic)
21 CHAIRMAN CLIFFORD: We don't have a map that shows
22 that?
23 MR. ZANGER: Give us the street, an area, where it
24 is at, cross street, something.
25 CHAIRMAN CLIFFORD: Nancy?
34
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1 MS. WOO: I can get the answer in a couple of
2 minutes.
3 CHAIRMAN CLIFFORD: Okay, we'll get the answer.
4 We don't have it at the tip of our tongue. Sir, do you know
5 right offhand? Could you describe where it's at right now?
6 MR. SHOCKLEY: I want you guys to get it out.
7 MS CARROTT: I think they're on our side, not our
8 enemies. They're trying to help out.
9 CHAIRMAN CLIFFORD: Thank you. Tom
10 MR. ARY: My name is Tom Ary. (phonetic) I'd like
II to ask about some of the alternatives. I agree, there are
12 some basic problems you'll have to address as well, but on
13 this gunite cover, it suggests that it would increase the
14 flood function and erosion resistance to the levee. I
15 wondered if it's only going to add two inches versus the
16 soil cover, which is going to add eighteen, how that would
17 reduce much in the way of a flood hazard. That's the first
13 question. I got a couple.
19 CHAIRMAN CLIFFORD: The question, I believe, is,
20 where we have proposed to put gunite, we are only looking at
21 a two-inch increase in height?
22 MR. ARY: Yeah.
23 CHAIRMAN CLIFFORD: And how is that going to
24 better fend off a flood or fend off a flood, as well as the
25 eighteen-inch soil cover. Do you want to take a shot at
35
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1 this, Greg?
2 MR. BAKER: You're correct in pointing out that as
3 far as the height of the flood, the gunite cover would not
4 resist, say, a flood that was of a higher elevation than the
5 existing ring levee. The point of that comment in the
6 Feasibility Study is that the gunite material is more
7 resistant to erosion.
8 MR. ARY: What kind of flow that's my second
9 question, what kind of flow do you expect coming in across
10 the flat lands of lower Santa Clara valley?
11 CHAIRMAN CLIFFORD: The thing is that there are
12 portions of the ring levee that are enclosed. I think it's
13 a point on the ring levee where they would want to reinforce.-
14 them with gunite as opposed to soil, are those areas where
15 there is a corner or bend that's considered to be more
16 susceptible to erosion at the main face of the levee.
17 Certainly, we're not talking about a river, we're talking
18 about a sheet flow, title flow.
19 UNIDENTIFIED: During the '82 floods.
20 UNIDENTIFIED: I was here, tell me about it.
21 CHAIRMAN CLIFFORD: This is Sarah Black and she's
22 a consultant working for us on this and she probably has
23 more of the technical details. Sarah?
24 MS. BLACK: Well, the thought that we wre
25 trying to convey was that, for instance, during the '83
36
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1 flood the water depth was probably higher than your ring
2 levee and the gunite would simply prevent erosion or washing
3 as the water rose and washed over the levee.
4 UNIDENTIFIED: But if it washes over, then the
5 levee isn't any good, anyway. So, what do you care about
erosion? It's already no good. Aside from those little
details, where are you going to put the gunite? In other
words, I don't think the gunite is much improvement over
soil, over most of the area and if the levee remains, I
10 think most people would vote for soil cover throughout
11 because you're only going to save, on a combination, you're
12 going to save $7,000.00.
13 CHAIRMAN CLIFFORD: Yeah. I agree. In fact, what
14 we would have liked to have done is and this is still up
IS for discussion because we haven't1 actually made a decision
16 on this would be to use soil for, as much of it, if not
all of it that we could. That's sort of we heard that
in the past public meetings that that's what the community
wanted and we think that's the way to go. There are some
other constraints with certain portions of the ring levee
21 that make it very difficult for us to use a soil cover in
22 those areas. Greg, did you actually describe which areas?
23 Do we know that the areas that are most likely to, that are
most difficult to use soil at?
25 MS. WOO: These are the areas, right there, where
37
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1 we would have difficulty getting the large earth movers in.
2 So, that's the area that we're thinking about gunite
3 cover, but, you know, based on public comment, that may
4 change.
5 UNIDENTIFIED: Excuse me, you're going to gunite
6 in that spot? There's a lot of room to work there, and I'd
7 like to point something out, as Doctor Harvey pointed out
8 earlier. Those of us who were here in Alviso, if the ring
9 levee was in position, the ring levee would be higher than
10 the flood waters in 1983 I think they were lower, I'm
II sorry. The ring levee was at a higher elevation than the
12 actual water. The ring levee is higher than the water that
13 was in here. It would have protected us and another thing,
14 too, when we talk about hydraulogy I think a real close
15 analysis has to be made of that because the sheet flows came
16 basically from this direction, here, and I agree with Doctor
17 Harvey that if there is that much energy there, then you
18 might as well kiss the whole thing goodbye. A little gunite
19 isn't going to do a bit of good. :
20 CHAIRMAN CLIFFORD: Bob, Nancy tells me this is
21 something we didn't address quite fully and we're going to
22 try and do that before you leave here tonight. The question
23 earlier was, where is the Raisch Quarry, that this stuff
24 cane there. It's off Old Monterey road, near .the
25 fairgrounds and it's a part of Communication Hill. I don't
38
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1 know, I'm not that familiar with the San Jose area. I don't
2 know where that is, exactly. If it would help to point that
3 out on a piece of paper or a map for somebody, we should do
4 that. So, if there are people, I can't remember who asked
5 the question, but we could do that for you and if you leave
6 your name and address, we could get that for you.
7 UNIDENTIFIED: Well, if this trailer court is put
8 in on that old quarry, the quarry is closed down now, but
9 the trailer court is put in there. How come they're not
10 under asbestos deals?
II CHAIRMAN CLIFFORD: There's a mobile home court?
12 UNIDENTIFIED: Mobile home court, yeah.
13 CHAIRMAN CLIFFORD: On the Raisch Quarry?
14 UNIDENTIFIED: Yeah. The quarry is closed down.
15 CHAIRMAN CLIFFORD: I thought there were two
16 quarries. I thought the Raisch Quarry was still in
'7 operation. That's not true? Is the Raisch Quarry still in
18 operation? Do we know?
19 MS. WOO: It is still in operation.
20 CHAIRMAN CLIFFORD: The Raisch Quarry is still in
21 operation.
22 UNIDENTIFIED: Well, part of the quarry isn't, the
23 part where that mobile home court is.
24 CHAIRMAN CLIFFORD: Well, actually, we don't know
25 and we'll check into that.
39
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1 MS. WOO: What we're concerned about today is the
2 community of Alviso. if there are other sites out there,
3 we'll take a look.
4 CHAIRMAN CLIFFORD: la there anybody in the
5 audience who happens to know whether or not it's the Raisch
6 quarry that has the trailer park on top, as a pat of the
7 quarry? Okay, no. We have been taking a lot of questions
8 from those of you who speak English because I speak English
9 and that's pretty easy. I'd like to ask, in particular, if
10 there's anybody who has a head set on that would like to ask
11 a question and if you would like to ask a question and if
12 you would like to make a comment, if you'd raise your hand,
13 we'll get the microphone to you and we'll get the translator
14 and we can get a response to any questions you might have.
15 Yes, sir, the gentleman in back? If you could please state
16 your name before you ask a question, that would be
17 appreciated.
1* (Translation)
19 CHAIRMAN CLIFFORD: Is the question, why is it
20 taking us so long to put it okay, the question thank
21 you sic. I think I understand. There are two questions.
22 one is, in the past, other people have put, maybe the City
23 of San Jose, the levee is there now, in a matter of seventy-
24 two hours. Why is it taking us so long. That's a
25 legitimate question.
40
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(Applause)
2 CHAIRMAN CLIFFORD: If we could have simply made
3 the decision to build another levee without doing the
* studying and without doing the analysis and without
5 coordinating with all the agencies that we had to coordinate
6 with, without presenting in the document that we should
1 present to the community for public comment, we, too,
8 probably could have been able to do it quite a bit quicker
9 than we're taking now. Unfortunately, we have a very
10 cumbersome process that we're forced to go through to make
11 sure that we are making the right decision, that increasing
12 the size of the levee is warranted, and to make sure that
13 the design of the levee is going to be something that's
14 acceptable to the community. That's why we've put together
15 this document that's about three inches thick and it's taken
16 us about a year and a half to complete. Frankly, I would
17 have liked to have done something much quicker than this,
1* too, myself.
19 Let's see, there was a second part of that question.
20 in addition to why it took so long oh, the second
21 question is, why can't we just dig it up and take it away,
22 just as easy as we could build another levee on top of it.
23 The problem we face wi.th digging it up and taking it away is
24 the cost of digging it up, the cost of disposing it in a
25 commercial hazardous waste landfill that we would have to
41
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dispose of it because of the asbestos content.
UNIDENTIFIED: Where are you going to put it, i
you move it?
CHAIRMAN CLIFFORD: And, where would we have to
take it to in order to dispose of it, as this lady
mentioned. Given those concerns, when we did our analysis
on I can't remember, and maybe Nancy or Sarah could help
me here the cost of removing the levee was, I believe,
around nine million dollars, nine or ten million dollars.
Yes, madam?
(Question; interpretation)
CHAIRMAN CLIFFORD: You didn't have any problems
with floods before the ring levee was put there?
(Question; interpretation)
UNIDENTIFIED: It's been flooding since 1777, on
the record in Alviso.
(Question; interpretation)
CHAIRMAN CLIFFORD: I'm not sure how I can respond
to that. I think we have records that it actually had
flooded several times prior to the flood of '83.
(Question; interpretation)
CHAIRMAN CLIFFORD: Do we have specific dates of
floods since certain period of time?
(Question; interpretation)
CHAIRMAN CLIFFORD: I think what the gentleman
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1 just mentioned was that the floods came from the orchards
2 side as opposed from the Bay side and from Anderson's Dam.
3 Torn, being one of the ones that are probably more familiar
4 with this, with the flooding here, is that your
5 understanding of where the floods
6 UNIDENTIFIED: People that have lived there for a
7 long time know that it was flooded one of the levees were
8 put along the Guadalupe and that got leveed again pretty
9 well and the last one, the '83 was from the Coyote flood.
10 When did it flood? Help me with the dates, '56 or
II somewhere? Those of you who have lived here longer. I
12 mean, come on, Gross.
13 MR. GROSS: 1982 we took water here from Coyote
14 Creek. Guadalupe was reconstructed over a period of years
15 and water did come in here, but Coyote Creek flooded us in
16 1982 and 1983 and in '82 it over-topped behind Agnes State
17 Hospital and over here by the Old Standish Ranch. In '83,
IS it pretty well was contained behind the hospital and it came
19 through on the Standish Ranch, back through the sewage
20 treatment plant and into Alviso. That was March of '83.
21 Again, I'd like the record corrected in your book; we did
22 take water in 1982.
23 CHAIRMAN CLIFFORD: Thank you, Mr. Gross. I think
24 that the specific years that the town of Alviso flooded is
25 not one of the things that we're here to try to address.
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1 We're not trying to rebuild the levee to fix whatever
2 potential flooding might occur here. Our job here is to try
3 to eliminate or reduce the risk of asbestos exposure, part
4 of which is the result of that asbestos that is contained in
5 a material the ring levee is now made of. That's why we've
6 developed these options and that's what we'd like to hear
7 your comments on. We do feel that something needs %to be
8 done with the ring levee and this is our proposal on the
9 kinds of things that could be done to fix that problem.
10 Yes?
11 MS. HINES: Have any medical studies been done in
12 this area?
13 CHAIRMAN CLIFFORD: Diane Hines, the question is,
14 have any medical studies been done in the area and to my
15 knowledge, there hasn't been any done on the Alviso
16 population as it relates to asbestos. There was a question
17 in the back? Yes, Jim?
18 UNIDENTIFIED: We talked earlier about from the
19 very beginning, I was interested in what the problem might
20 be. The community, from the very beginning, wasn't too hep
21 on EPA entering here and that language complained about the
22 dust from the trucks and all the stuff we've had to eat that
23 was in the air from the dust that the trucks picked up.
24 That problem, to this date, has not been corrected. Now, I
25 heard from Ms. Woo, or one of the young
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1 ladies here, that the truckers have been taught to maybe
2 water their lots down now and then. But that doesn't
3 correct the problem. So, if you're here to correct
4 something, why don't you correct it? The ring levee was
5 something which was put in by the City, which is something,
6 as far as I'm concerned, should be between you and the City
7 and not the community because, evidently, we don't have
8 anything to say about it, period. But, the dust, I think we
9 should have something to say about because that affects us,
10 directly, on a daily basis and nothing has been done,
II period, not anything has been done. Now, you've had plenty
12 of time to do something about the dust.
13 CHAIRMAN CLIFFORD: I agree.
14 UNIDENTIFIED: Well, if you agree, why don't we do
15 something?
16 CHAIRMAN CLIFFORD: I don't have a good answer for
17 that, Jim. I know we actually committed to the past
18 meetings, to deal with that truck yard dust issue. We
19 haven't done it. I'm not exactly sure what that reason is.
20 Do we have a reason?
21 UNIDENTIFIED: Can Ms. Woo comment on it a little
22 bit? I think she was the one that mentioned that something
23 should be said to the trucking people about the job.
24 MS. WOO: We have talked to the truck yard
25 owner
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1 UNIDENTIFIED: What have you done?
2 MS. WOO: Okay, what we did was, we went in there
3 and collected samples from the various truck yards along
4 State Street. One of the problems we're having is actually
5 analyzing for asbestos in the soil. It's incredibly
6 difficult to get an accurate measure of the asbestos in
7 soil. That's one of the problems we're having throughout
8 the entire site. So, we had to re-analyze the asbestos
9 samples collected from the truck yards, twice. Now that we
10 have a positive identification of the asbestos concentration
11 in the soil, that last month I sent out about six or seven
12 letters, all to truck yard owners that had asbestos in their
13 truck yards telling them the concentrations in the soil and
14 suggesting that they water down their yards, periodically.
15 Now, I know that's not very much, but it is our next area
16 targeted for action.
17 UNIDENTIFIED: That doesn't make a whole lot of
18 sense, with all the money you've been spending, and going
19 through the whole program, as far as we've gone, it doesn't
20 make any sense because that's something you could have taken
21 care of, Jerry, you and your group, from day one. We don* t
22 have to wait this long to take care of the dust. If the
23 asbestos is done, there's no problem, is that right? What
24 is going on? Let's put the money to some use.
25 CHAIRMAN CLIFFORD: You've got a good point, Jim.
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1 UNIDENTIFIED: I'm still breathing it, daily.
2 CHAIRMAN CLIFFORD: We committed to do something
3 about the truck yards and we didn't. The reason we didn't
4 is we haven't been able we don't have the authority, just
5 because there's dust there, and order somebody to do
6 something. We have to draw the connection between the
7 amount of asbestos that's in the dust that's in the air,
8 that's where we have the difficulty, on that connection.
9 Let me just ask Nancy.
10 UNIDENTIFIED: Can the community help you to do
It something about that? We're here as a community, right?
12 CHAIRMAN CLIFFORD: Right.
13 UNIDENTIFIED: Can we get together and do something
14 about it?
15 CHAIRMAN CLIFFORD; In terras of helping us get the
16 information
17 UNIDENTIFIED: Controlling the dust, controlling
18 the dust and the asbestos in the air. I mean, we're here,
19 all at once to contribute towards the one cause, right, keep
20 asbestos down.
21 CHAIRMAN CLIFFORD: Yes.
22 UNIDENTIFIED: Can we do that?
23 CHAIRMAN CLIFFORD: I don't know. I don't have
24 any ideas on how to we could help with the truck
25 yards.
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1 MS. WOO: Perhaps not with the truck yards, but
i
2 the community, the residents along State Street can '
3 certainly hose down the dust along, right outside of
4 their
5 UNIDENTIFIED: We're suffering a water shortage
* right now. Do you want us to go out and blow the water?
1 Let's put it together. Let's do it together.
8 CHAIRMAN CLIFFORD: Jim, we got to own up to this
9 responsibility and we've not performed here and that's
10 obvious. What I will commit to do is talk to our attornies
11 to see if there's something other than the letter that we've
12 sent suggesting they do something, that we can force the
13 truck yards to deal with the dust problem. All I can say is
14 I can't promise anything because I don't know from
15 UNIDENTIFIED: Jerry, we don't want to wait until
16 spring. I don't think I've missed very many meetings. I've
17 been to virtually every one, and every time I've been here,
18 we've talked about the same thing. It's not that big a deal
19 to hold the dust down. It's not that big a problem.
20 CHAIRMAN CLIFFORD: You're right; it's not that
21 big a problem. What's a problem is having the justification
22 from a legal standpoint to force somebody to do something
23 about it.
24 UNIDENTIFIED: You have the legal powers to come
25 in here and get the community to show up time after time
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1 after time, but we really don't have a choice in what you're
2 doing. So, we come here to find out just what's going on
3 and we have no control over what you're doing. That's not
4 right. Now, if you want the community to be part of what's
5 going on, let us be part of it and you do something to help
6 us.
7 CHAIRMAN CLIFFORD; I will get back to you in a
8 week and let you know what we can do with the truck yards.
9 I can't do any more than that right now because I haven't
10 talked to my attorney.
11 UNIDENTIFIED: One week, huh?
12 CHAIRMAN CLIFFORD: One week. I'll let you know,
13 in a week, what we're able to do.
14 UNIDENTIFIED: I hope you have a lot of power.
15 CHAIRMAN CLIFFORD: Well, the answer to that may
16 be, we don't have enough information to take action against
17 the truck yards.
18 UNIDENTIFIED: The Super funds can come into power
19 some place, even if they have to wet the truck yards down.
20 if it's that important, the asbestos here is that great,
21 you'd certainly be able to, even if you have to supply the
22 water to the truck yards.
23 CHAIRMAN CLIFFORD: I agree. If we're able to
24 document that the problem associated with the truck yards
25 warrants action, we'll take that action.
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1 UNIDENTIFIED: You've taken samples from the
2 homes; you've taken samples from the yards.
3 CHAIRMAN CLIFFORD: Right.
4 UNIDENTIFIED: And now the asbestos is located
5 within the ring levee which was brought in under a certain
6 instance that we had no control over and now the dust that
7 blows off thre ring levee, evidently, is the contamination we
8 have with the asbestos.
9 CHAIRMAN CLIFFORD: That's part of the
10 contamination.
11 UNIDENTIFIED: Part, but if we hold it down, if it
12 takes water to hold it down, it washes down the drain, it's
13 gone; we don't have to breath it, do we?
14 CHAIRMAN CLIFFORD: That's right.
15 UNIDENTIFIED: I think if you've got money to
16 continue, the way you've been going here, there's enough in
17 there to put water over the dust.
18 CHAIRMAN CLIFFORD: It's not a matter of money.
19 UNIDENTIFIED: Then, let's do something about the
20 dust. That's the contamination that we have to breathe.
21 CHAIRMAN CLIFFORD: I agree.
22 UNIDENTIFIED: If I'm wrong, tell me I'm wrong and
23 I'll sit down and I'll shut up and I won't come back again.
24 CHAIRMAN CLIFFORD: You're absolutely right,
25 although all the contamination isn't associated with the
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1 truck yards and that's what I have to make sure I have the
2 legal basis to take some action and that's what I'm
3 committing to you to get back to you in a week and let you
* know whether or not we have that basis.
5 UNIDENTIFIED: One of our last meetings, we had
6 the saying that EPA stopped the City of San Jose from
7 sweeping the streets out here, or that's what I was told by
8 the street sweeping, the head of it, whatever they are.
9 Okay, which is the worst? To have the street sweeper come
10 through once or twice a month or every two months or
11 whatever he does, or every time a truck goes down the road,
12 a bus or a car, the dust falls. You can't even see people
13 across the street. We're talking mostly about State Street.
14 CHAIRMAN CLIFFORD: The question is, we had the
15 City of San Jose stop street seeping with their sweepers
16 because of the amount of dust it was generating and because
17 or the content of the dust, the asbestos content of dust on
18 the road. The question is, how does that risk the health of
19 the residents of Alviso compared to the risk posed by trucks
20 and cars driving up and down the same street. In terms of
21 comparison, the exposure from whatever dust is generated by
22 cars and trucks is every bit as much a problem as that
23 generated by the street sweepers.
24 UNIDENTIFIED: And by leaving it sit on the
25 street.
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10
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CHAIRMAN CLIFFORD: And as this woman mentioned,
by leaving it sit on the street all the time. The answer to
that is yes, you're absolutely right, that it's a problem
that, in the short-term, we don't have a lot of good ideas
of how to deal with it.
UNIDENTIFIED: Why did you have, the City stop
sweeping the street? I asked the City guy down here at the
last meeting.
CHAIRMAN CLIFFORD: Oh, I see the question now.
The question I didn't understand the question was, was
it worse to leave the dust on the streets ad allow cars to
kick it up and generate a problem or was it worse to have
the street sweepers, as they were sweeping it up, generate
the problem. I think at the time, we thought that much of
the asbestos that was in the road along State Street,
Spreckles and Grand was a lot of what was being washed off
the ring levee and onto the streets opposed to that as being
carried by trucks onto the streets, and that we thought by
keeping the street sweepers off until we were able to pave
the levee, and cover it permanently, was the best thing we
could do. We had thought at the time, we were going to be
able to take that action much more quickly than we have, in
fact, been able to deal with the problem.
To answer your question, I don't know. I don't know
what that difference is now, even that we've taken a year
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7
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and a half longer than we thought we're going to deal with
the ring levee problem.
UNIDENTIFIED: Why can't you just get the street
sweepers to come back in now?
CHAIRMAN CLIFFORD: We could; I'm sure. I guess
you raise a good point. What we need to do is take a look
at the benefit of not having the street sweepers on there
against the increased risks of the dust building up on the
roads. Nancy, do you have anything to add to that?
MS. WOO: One thing that I can add is that when
we're doing our activities specifics, sampling in the next
three weeks, you'll see me out there, pulling
UNIDENTIFIED: Come on out there without a cover
on and get that dust and then you will change your mind.
MS. WOO: But, I think we'll have an answer real
soon. Like Jerry said, we will get back to you and he
did make the commitment that he would get back to you,
Mr.
UNIDENTIFIED: If I may, maybe the watering of the
truck yard may be more of a hazard to us than just the dust
because the trucks, if the yard is wet, are going to pick up
the mud, bring it on the streets for the busses and trucks
to re-distribute to the neighbors. You've got kind of a
two-fold problem here.
MS. WOO: We know though, the ambient air
53
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I concentrations for the entire community. So, that, we km
2 if the trucks, you know, are picking up the dust generating
3 throughout the entire community, the entire community would
4 have a problem.
5 UNIDENTIFIED: What is EPA's input, please. What
6 is the definition of EPA?
7 MS. WOO: Environmental Protection Agency.
8 UNIDENTIFIED: Okay, well, our control is out of
9 hands. There's a lot of dust, a hell of a lot of dust.
10 Whether it has asbestos in it or not, it's out of control.
11 It's not where it should be and if you people can control
12 the environment, let's do it. We're the community that
13 you're talking to and we don't have any control over our
14 environment. If you're here, you should give us some help.1
15 CHAIRMAN CLIFFORD: Jim, to the extent, we can't
16 exercise control over asbestos or any other hazardous
17 substance that's found within the town of Alviso.
1* UNIDENTIFIED: Anything other than clean air,
19 Jerry, is hazardous to our health, isn't it?
20 CHAIRMAN CLIFFORD: That's true.
21 UNIDENTIFIED: Well, it's a hazard.
22 CHAIRMAN CLIFFORD: But it's not within the
23 constraints that we have, does not allow us to deal with
24 dust, generically. That's a constraint that we have where
25 we're unable to do that.
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1 UNIDENTIFIED: But you're working in a community
2 that's already been contaminated, supposedly, otherwise,
3 you wouldn't be here. So, there, we have a reason, I would
* think.
5 CHAIRMAN CLIFFORD: We have a reason and when we
$ finish our broader study, we'll be able to decide whether or
1 not there's an action that's actually warranted with respect
8 to the asbestos.
9 UNIDENTIFIED: There are more people in this
10 community here that can tell you about the community, what's
II. underground, all around the ground, and how much dirt we eat
12 and how much we sweep and wipe off our furniture on a daily
13 basis, than you'll ever learn in an office conducting all
14 your studies or your bicycle or whatever. We live here.
15 This is part of our community and we're only here because we
16 want to make it better and you're only representing us to
17 make it better. It doesn't seem to me like the time that
18 you've taken you you've done any good. It really doesn't.
19 what have you done for us, since you've been here, really?
20 CHAIRMAN CLIFFORD: The only thing that I can
21 think of that we've actually done is we've managed to seal
22 the ring levee to reduce the amount of asbestos that's
23 coming off. In the interim, we finalized our study and
24 documented that something actually needs to be done. We
25 have done that. We haven't addressed the truck yards. We
55
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1 did three other things. We paved the extended part of
2 spreckles Avenue when we found high levels of asbestos, some
3 of which was the result of the ring levee extended down past
4 the paved portion. We paved a lot behind the George Maine
5 School that we had found contained the same types surpentine
6 in asbestos as that composed ring levee. We paved that.
7 We also found similar material out by the Environmental
8 Education Center and we have been able to cover that
9 effectively. So, we actually have done something. Lately,
10 we haven't done a lot and we explained tonight, obviously
11 not to the satisfaction of our or some of the other
12 people here, but there are reasons, not excuses, there are
13 reasons why we haven't been able to do something with the
14 ring levee. Frankly, I don't have a real good reason, nor(
15 do I have a real good excuse for why we haven't done
16 something with the truck yards, but I've committed to look
17 into it and get back with you. That's all I can do with the
1* truck yards.
19 UNIDENTIFIED: What is the purpose of our meeting?
20 CHAIRMAN CLIFFORD: The purpose of the meeting
21 tonight
22 UNIDENTIFIED: Or any night. You said several
23 meetings. What's been the purpose of our meetings.
24 CHAIRMAN CLIFFORD; Is to keep those of you
*5 interested in knowing what we're doing, informed of what
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1 we're doing, to solicit input and comment, a lot
2 of what we get tonight, a lot of it from you, as to what
3 your concerns are. Frankly, if you had not raised the truck
* level, or dust issue or this gentleman not raised the truck
5 level issue again, I probably wouldn't have thought about
6 it. It would not have been the first and foremost on my
7 mind. The ring levee is foremost on my mind. I probably
8 wouldn't have thought of it. So, I appreciate those of you
9 who raised that because I still agree it's something we
10 should deal with.
II UNIDENTIFIED: Well, you're concerned with our
12 health; is that true?
13 CHAIRMAN CLIFFORD: That's true.
14 UNIDENTIFIED: All right, well, what about this
15 dust that blows all the time? Is that unhealthy?
16 CHAIRMAN CLIFFORD: Dust is unhealthy. There's
17 not a question there. Unfortunately, the laws that give us
H the authority to deal with what we're dealing with are not
19 broad enough to allow us to deal with dust in and of itself.
20 The City of San Jose, the County of Santa Clara, they have
21 the authority to pass local ordinances to control dust
22 levels; we don't at EPA. So, in terms of what the community
23 could do to control dust levels or not, the stuff you're
24 talking in your own terms of water or seeding and making
25 sure the grass is growing to keep the dust down, the only
57
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I other thing I'm aware of that's within your control is to
2 petition the City of San Jose that would pass an ordinance
3 that would restrict the amount of dust on these truck yards,
4 regardless of the asbestos levels. That's something the
5 City of San Jose has the authority to do and I believe the
6 County of Santa Clara also has the authority. So, there's
7 two governmental bodies that have responsibility. You have
8 a right to appeal and go to them and ask them to do
9 something about it.
10 UNIDENTIFIED: Excuse me, you lost me. Did I hear
II correctly that the EPA gave the City of San Jose
12 instructions to stop street sweeping?
13 CHAIRMAN CLIFFORD: Yes, that's correct.
14 UNIDENTIFIED: Well, it seems to me, if you've go
15 the authority to do that, it's obvious you must have other
16 authority.
17 CHAIRMAN CLIFFORD: That's correct. We didn't use
18 our authority. We used the information that we had
19 collected to date and we went to the City of San Jose and
20 asked them if they would stop doing it. We didn't force
21 them to stop doing it. We asked them to stop doing it.
22 UNIDENTIFIED: But they probably did it because
23 they didn't want to spend money in the community. They had
24 nothing to do with the health.
25 CHAIRMAN CLIFFORD: Maybe they didn't. The net
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1 result is, they stopped at our request because we thought
2 this was the best thing for the people of the city, the
3 town of Alviso.
UNIDENTIFIED: Awfully confusing.
UNIDENTIFIED: I know I'm beating a dead horse,
but bear with me. I gather there's asbestos in the dust in
7 the streets and that's the concern for suggesting that they
8 stop being swept. Was that the initial concern about this
9 street sweeping?
10 CHAIRMAN CLIFFORD: That was our concern, yes.
1! UNIDENTIFIED: Have the results indicated that it
12 is a concern that there's enough asbestos contaminated in
13 the street dust to try to deep it down?
14 CHAIRMAN CLIFFORD: We found, to tell you
15 the truth, what we found was low levels of asbestos in the
16 street dust. People had complained about dust and the
street sweepers were something that, where people in this
community and past meetings that said if there's asbestos in
the dust, why are we allowing the City of San Jose to
20 continue street sweeping. So, we asked them to stop. Now,
21 whether or not there's enough asbestos in the street dust
22 that's getting into the air that warrants some longer term
23 fix, we haven't got enough information to conclude that,
24 yet. That will be included, we'll make that finding, based
25 on the longer term study. Nancy mentioned we would have
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1 results at the end of September. So, we should know, by I
2 that time, whether or not the asbestos levels in the street
3 dust, in combination with the other areas around the town
that have asbestos in pockets that have a mechanism to get
5 that asbestos in the air, whether contamination, in total
6 warrants taking any further action, other than what we're
proposing on the ring levee. Right now, I don't have that
answer.
UNIDENTIFIED: Yet, we got to go another six
10 months with breathing this dust down the streets, huh?
M CHAIRMAN CLIFFORD: Yes.
12 UNIDENTIFIED: You're not being fair to us,
13 really.
14 UNIDENTIFIED: Isn't there a way to wet sweep it?
15 in the last couple years, there's been absolutely no street
cleaning by any public works department at all. I gather
it's been done on some honest concerns of not trying to stir
up additional problems, street sweeping and stuff. If we,
after all the partners can't come to a conclusion that
20 there's enough hazardous material there to be a concern,
21 there must not be all that much there, or is that a far :
22 fetched conclusion?
23 CHAIRMAN CLIFFORD: No, but the issue is not
24 what's complicated about asbestos is that isn't very
25 difficult to draw the connection between what's in the soil,
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1 what can get into the air,'versus what"actually stays in the
2 air long enough for people'to "breathe and'then quantifying
3 that so that we can actually determine how much"" of a health
,4 problem that'is. Believe me,"- as 'frustrated 'as'"every one'"fa
:5 here with the progress we're mak'ing on this, "we1're equally
'.< as frustrated.-. This is-not the ;only asbe'stds'site'we'have.
^ We have ;.three that we're working'on through"'California. '
8 This is the only one in a'residential/ the "one that's I
9 guess it's not the only - ' ' ' - . . - . . - .
10 . . UNIDENTIFIED: ' We're concerned here, Jerry. "Come
I! on, keep it here. r-. .->:.-. :..- - - - : ....- .. ir..
12 ' CHAIRMAN CLIFFORD: Our problems are the same
13 problems in all these different'sites.' It's' extremely
14 difficult, without getting into technical" aspects of why
15 it's difficult, it's awkward for me to try to explain how
K difficult it. is. I could try to do that, if there are -'
17 people here, and it's probably not the best use of
If everyone's', time to do'thati- There are those of us who would
19 be willingvto stick around'and go into thai detail; if 3fld
20 people are. interested.-<
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1 in a position of probably recommending what to do in the
2 long term. Over the short term, which is the next six
3 months to, even a year, the incremental exposure that
4 residents of Alviso are getting to the levels that we found
5 in the street dust over your all's life is probably not
6 going to be a very significant risk. What we'll find out
7 when we pull all our information together and have it in a
8 document by the end of September, we'll take that
9 information that we do know about that incremental list,
10 we'll calculate what that risk would be over a person's
11 lifetime, having been born here and for seventy years, and
12 if that result is a significant health risk, we'll be
13 recommending that something be done. If that result is not
I
14 a significant health risk, our recommendation will be
15 nothing further be done, most likely.
16 UNIDENTIFIED: Does that include the ring levee,
17 too?
IS CHAIRMAN CLIFFORD: No. We've already paid the
19 City and if something needs to be done with ring levee, and
20 that's actually the prime reason we're here was to try to
21 get anybody's comments on what we're proposing to do with
22 the ring levee in the interim until we figure out what we
23 should be doing in the long term area, with the asbestos,
24 the other asbestos areas in Alviso.
25 UNIENTIFIED: Don't misinterpret some of our
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1 comments tonight. I think we appreciate your effort. I
2 think a lot of the people are feeling frustrated because of
3 the lack of accountability by the City of San Jose because
4 you look at we don't see San Jose officials here; we
5 don't see the Council people here. I think a lot of them
6 feel very strongly about that. There's a couple of comments
7 I hope you'll really look at. Doctor Harvey touched on them
*
8 briefly. If you're going to do something with the levee,
9 cap it and so forth, I think I'd encourage to beautify our
10 community. Don't put concrete in here. I think that's
11 disgraceful to come into an already environmental sensitive
12 area and want to put concrete in here. Let's try and
13 beautify this community. One of the things, too, I still
14 have concerns over polymer, and I've brought this up before.
15 One division of EPA still is doing a research on the
16 environmental impacts of polymers or a ceiling, yet we're
17 getting polymers here. I don't know if they'll harm the
18 environment or they wont.
19 CHAIRMAN CLIFFORD: They won't. The polymers that
20 we put on the ring levee, there is enough test and research
21 data that says it's non-toxic. The last thing we wanted to
22 do was try to fix the asbestos problem and only create
23 another problem in this area. So, we made sure we selected
24 a polymer that was non-toxic and that's what we selected. I
25 guess I do appreciate the comment about the frustration that
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1 people are expressing here and I'm not so sure there's muc
2 more I can say about that.
3 I'd like to get back to the ring levee, if we could,
4 for a moment and just ask if there are any other questions
5 or comments, other than the fact that what I'm hearing, in
6 general, is that people still prefer, as had been mentioned
1 in the previous public meeting, soil cover, as opposed to
8 gunite.
9 UNIDENTIFIED: And possible removal.
10 CHAIRMAN CLIFFORD: And possible removal.
11 UNIDENTIFIED: Or both, the gunite and earth on
12 top of the gunite. Wasn't that part of it, gunite with the
13 earth on top of the gunite, as well?
14 CHAIRMAN CLIFFORD: No, that wasn't something we
15 were proposing to do. Previously, we had looked at a fabric
16 line over the existing ring levee with soil on top of that.
17 We determined that based on that past study that we did,
18 that a larger soil cover was a better solution to the
19 problem than putting a cap on with a little soil cover.
20 UNIDENTIFIED: They don't have polyurithane, they
21 don't have a longevity of a hundred years or better?
22 CHAIRMAN CLIFFORD: The question is, is there some
23 synthetic fabric we could put on that would last a long
24 time. The answer is yes, there is synthetic fabrics that
25 would last a long time. I believe the reason that we
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1 discounted that was that it was going to be very difficult
2 to make sure that the soil adheres to the fabric cover. So,
3 I think the iraplementability was that you put the fabric
4 cover on and put soil on top of it and that you'd have to
5 put such a large amount of soil on it to make sure that it
6 didn't slip off the fabric cover
7 UNIDENTIFIED: The water district uses fabric or
8 soil stability and erosion control where they got extreme
9 hydraulic problems. I would say here, you've only really
10 got a vertical movement basically of water, compared to a
11 stream flow. So, there are fabrics out there
12 CHAIRMAN CLIFFORD: You're exactly right and the
13 reason is that we're trying, in designing a cover, one of ,
14 the things that the community wanted to make sure we
15 considered was public access to the levee. You're right, if
16 we simply wanted to put something on it to cover it and
17 could be assured that the community wasn't going to use it
18 for anything in terms of hiking, walking their pets, having
19 the children play on it, what have you, we could have done
20 just that. But, one reason, many of the earlier concerns
21 was that children wre going to play on it, they wanted to
22 use the levee, they wanted to walk on it, and walking on it
23 and using it, we felt that the best remedy to account for
24 that would be a much larger soil cover. So, that's why we
25 discounted that in the earlier study.
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1 Juliana, our interpreter, really needs a break and so,
2 we could do one of two things. For those of you that still
3 have a lot of questions you'd like to ask, in this type of
4 forum, we could break for ten minutes and reconvene, if
5 there are people who want to, if people are tired, they want
6 to go home, they could just go home and we could have an
informal discussion for those people who want to hang around
and ask questions. We'll be willing to stay as long as
necessary to respond to the questions. What would you all
10 like to do? If we broke for the evening, is that okay?
11 Okay, thank you very much for coming. A lot of us will be
12 hanging around to answer any questions those of you may have
13 and if there's anybody left who has ear phones that would
14 also like to stay around, our interpreter will be staying
15 around and there are other people here that could interpret
16 the answers to questions you may have. Thank you very much
for your input. Good night.
(Hearing adjourned)
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