PB96-963131
EPA/ESD/R02-96/290
November 1997
EPA Superfund
Explanation of Significant Difference
for the Record of Decision:
Love Canal,
Niagara Falls, NY
9/5/1996
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Attachment B
Explanation of Significant Differences
LOVE CANAL SUPERFUND SITE
CITY OF NIAGARA FALLS
Niagara County, New York
EPA
Reqion
NOVEMBER 1996
INTRODUCTION
The United States Environmental Protection Agency
(EPA) and the New York State Department of
Environmental Conservation (NYSDEC) announce this
Explanation of Significant Differences (ESD) to explain
modifications to the selected remedy for the final
destruction and disposal of love Canal dioxin-
contaminated sewer and creek sediments. These
modifications are embodied in proposed changes to a
partial consent decree between the United States and
the State of New York and the Occidental Chemical
Corporation (OCC) in the United States District Court
for the Western District of New York.
The remedy selection for the destruction and disposal
of Love Canal sewer and creek sediments was
documented in the October 26, 1987 Record of
Decision (ROD) for the Love Canal site (Site), The
selected remedy in the 1987 ROD required that sewer
and creek sediments, teachate treatment residuals,
debris, and haul road materials be thermally treated on-
site at Love Canal in a thermal destruction unit (TDU)
and that the treatment residuals be disposed in selected
areas on-site. In 1989, the United States and the State
of New York and OCC entered into a Partial Consent
Decree (PCD). In the PCD, OCC agreed to implement
portions of the 1987 ROD at its Niagara Falls Plant
instead, of at Love Canal. A public notice announcing
the first ESDrwhich identified the PCD modifications to
the'1987 ROD, was published in The Niagara Gazette
and The Buffalo News on June 1.1989.
This ESD announces further modifications to the 1987
ROD that are embodied in a proposed modification to
the 1989 PCD that is being lodged in the U.S. District
Court simultaneously with the publication of this ESD.
The proposed modification to the PCD that is discussed
in this ESD will be the subject of a public comment
period. As discussed below, there will be no separate
comment period with respect to this ESD. Any
comments received on the subject matter that is
common to the proposed PCD modification and this
ESD will be addressed in the context of the comment
period for the proposed modification to the PCD.
EPA is issuing this ESD in accordance with Section
117(c) of the Comprehensive Environmental Response,
Compensation, and Liability Act (GERCLA), as
amended, 42 U.S.C. § 9617(c), and Section
300.435(c)(2)(i) of the National Oil and Hazardous
Substances Pollution Contingency Plan (NCP), 40
C.F.R. §300.435(c)(2)(i). This ESD and those
documents which form the basis for the decision to
modify the response action will be incorporated into the
Administrative Record maintained for the Site in
accordance with Section 300.835(a)(2) of the NCP.
The Administrative Record is available for review during
business hours at EPA Region II, 290 Broadway, New
York, New York 10007-1866 at (212) 637-4308, and at
the information repository at EPA, Carborundum
Center, 345 3rd Street Room 530, Niagara Falls, NY
14303 at (716) 285-8842.
SUMMARY OF SITE LOCATION, HISTORY,
CONTAMINATION PROBLEMS AND SELECTED
REMEDIES
The Site Is located in the southeast comer of the City of
Niagara Falls, New York and is approximately one-
quarter mile north of the Niagara River. Between 1942
and 1954, Hooker Chemicals & Plastics Corporation
(Hooker) disposed of over 22.000 tons of chemical
wastes in Love Canal. Hooker deeded the Love Canal
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property to the City of Niagara Falls Board of Education
in April 1953. An elementary school was built adjacent
to the central portion of the Canal. During the 1950's,
home construction accelerated in the area, and by 1972
area lots had been completely developed, including lots
with backyards directly abutting the landfill property.
In the mid-late 1970's, wastes were observed on the
surface of the landfill and in the basements of homes
abutting the Canal. The Site is contaminated with
various volatile organic compounds, dioxin, pesticides
and heavy metals. The Commissioner of the New York
State Department of Health declared a state of
emergency at Love Canal on August 2, 1978.
President Carter declared two environmental
emergencies at Love Canal on August 7,1978 and May
21,1980, enabling the federal government to provide
financial assistance to the State for the initiation of
remedial measures and relocation assistance to the
residents.
The first phases of the remedial activities at Love Canal
began in October 1978, including Site containment and
cutting off of sewer lines contaminated by leachate
migrating from Love Canal.
On May 6,1985, EPA issued a ROD for the Site which,
among other things, called for the removal of dioxin*
contaminated sediments from specific stretches of
Black and Bergholtz creeks and storm and sanitary
sewers, and the interim storage of these sediments in
a containment facility. The sewer cleaning work was
completed in late 1987.
On October 26,1987, EPA issued a second ROD for
the Site which required that ail sewer and creek dioxin-
contaminated sediments together with contaminated
debris and treatment residuals from the on-stte leachate
treatment facility be thermally treated at the Site in a
Thermal Destruction Unit (TDU) to six nines (99.9999%)
destruction removal efficiency (DRE). Nonhazardous
residuals from thermal treatment were to be disposed
in select areas on-site. The 1987 proposed plan
identified alternatives in which the action level of 1 part
per billion (ppb) of dioxin would have triggered a
requirement that the waste be treated; and materials
contaminated with dioxin at levels below 1 ppb would
have been able to be land-disposed without treatment
However, because segregation of material above and
below the threshold was considered to be
impracticable, the ROD called for the thermal
destruction of all materials.
As discussed above, the PCD modified certain require-
ments of the October 26, 1987 ROD. The most
significant modification was the change in the siting of
the TDU from the Site to the OCC Buffalo Avenue Plant
site (OCC Plant Site). OCC was also required to
process, bag and transport the excavated sediments
and other remedial wastes from a staging area at the
93rd Street School site to the OCC Plant Site. OCC
was required to store these materials in a centralized,
permitted storage facility and to seek a permit to
incinerate the waste materials in a TDU that was to
have been built at the OCC Plant Site instead of at the
Site.
A second modification of the PCD provided that, after
contaminated materials were treated at the OCC Plant
Site, the residual materials from the thermal treatment
process would not be disposed of at the Site.
DESCRIPTION OF SIGNIFICANT DIFFERENCES
AND THE BASIS FOR THOSE DIFFERENCES
The selected remedy in the 1987 ROD, as modified by
the PCD, required that all sediments from the sewers
(2,500 yds3) and creeks (31,000 yds3) remediation, as
well as debris (1,300 yds3), haul road materials (3,900
yds3), and leachate treatment residues such as spent
carbon (200 yds3) be incinerated in a TDU to be
constructed on the OCC Plant Site, or in a commercial
incineration unit, if available. Federal statutes and
regulations would require that the nonhazardous
residues from thermal treatment be disposed of in a
Resource Conservation and Recovery Act (RCRA),
Subtitle C secure landfill.
Subsequent to the entry of the PCD in 1989, the
utilization of existing commercial incineration capacity
outside the City of Niagara Falls became a viable cost-
effective alternative for OCC. The consideration of
commercial alternatives to the TDU was also respon-
sive to public concern about the construction and
permitting of new hazardous waste incinerators within
Niagara Falls. .
In addition, in June 1990, EPA promulgated regulations
that affected the waste classification under RCRA of the
dioxin-contaminated materials addressed by the 1987
ROD and PCD. Prior to the 1990 regulations, the
leachate from Love Canal (as well as the sediments
which contained contaminants from the leachate, and
treatment residues that were derived from the leachate)
carried an F020 RCRA-listed waste classification which
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required incineration for destruction of dioxin
irrespective of the level of dioxin contamination in these
materials.
The June 1990 regulations created a new hazardous
waste category, F039, which applies to teachate from
multiple sources and wastes derived from this teachate.
EPA has determined that the Love Canal remedial
wastes should be classified as F039 wastes under
RCRA rather than F020 wastes. Under the 1990
regulations, F039 wastes containing dioxin can be
treated only in facilities whose permits allow for the
treatment of F039 wastes containing dioxin. F039
wastes must be treated to meet all applicable universal
treatment standards (UTS) [regulatory treatment
standards for over 200 organic and inorganic
contaminants, including dioxin]. The UTS for dioxin is
1 ppb. There currently are several facilities that have
been fully permitted for the incineration of F039 wastes
containing dioxin. Once compliance with all UTS is
demonstrated, treatment residues must be disposed of
in a RCRA Subtitle C landfill.
In summary, as specified in the 1987 ROD and as
modified by the PCD, the selected remedy required that
all Love Canal sediments, debris, and treatment
residues be incinerated in a TDU to be constructed on
the OCC Site. However, as a result of the above-
discussed regulatory changes, OCC's implementation
of sediment conditioning and handling procedures that
were necessary for the interim storage of sediments, as
well as the availability of commercial incineration
facilities, the existing remedy is no longer the only
practicable and safe alternative for remediating the
wastes. EPA has determined that it is no longer neces-
sary to thermally treat all contaminated materials,
irrespective of the level of contamination. Therefore,
EPA has decided to modify the 1987 ROD to allow
segregation of wastes based upon concentrations of
contaminants in those wastes. Consistent with the
F039 requirements, those segregated wastes that have
concentrations of contaminants below the UTS will not
require prior treatment before land disposal.
Furthermore, in addition to problems concerning
implementability. the 1987 ROD addressed the fact that
the community was concerned about disposal of
untreated materials at Love Canal. With the proposed
modification to the PCD, wastes with contaminant levels
which exceed the UTS will be treated utilizing
incineration for organic compounds (at facilities that
have demonstrated 99.9999% ORE for dioxin
surrogates more difficult to incinerate than dioxin and
will be operated at that DRE) and stabilization for
metals. This treatment will be conducted at commercial
facilities instead of at the OCC Plant Site. AS such
commercial facilities that are authorized for the
treatment of F039 wastes containing dioxin are located
outside of New York State. The residues from
treatment, or wastes that meet UTS without treatment.
will be disposed of in a RCRA Subtitle C landfUL All of
these disposal facilities also are located outside of New
York State. Therefore, there will be no land disposal of
materials at the Site or anywhere within the vicinity of
the Site.
Pursuant to the PCD, OGC dewatered and conctjoned
creek sediments, which are currently being stored on
the OCC Plant Site. These materials will now be
analyzed for purposes of segregating those portions
that will meet the 1987 ROD action level of 1 ppb of
dioxin from those that would not The UTS for dfaxin is
also 1 ppb. In addition to analysis for dioxin, however,
the RCRA regulations will also require that the residual
materials be analyzed for the over 200 contaminants for
which there are UTS, including metals. Only the waste
materials that meet the UTS without prior treatment
would be able to be land-disposed in a RCRA Subtitle
C facility. ,
This alternative would allow OCC to transport the sewer
and creek sediments, large debris, haul road masrials.
and leachate treatment residues to off-site facilities
permitted for the treatment storage, and disposal of
these materials. Those waste materials that h^e low
levels of contaminants that do not exceed UTS tan be
landfilled without prior treatment Those organic waste
materials that do not meet RCRA UTS for organic
chemicals, including dioxin, will be thermally tested
prior to final disposal. RCRA requirements further
mandate that after materials are treated, the residues
must be tested to ensure that the UTS have been met
If the UTS have hot been met the materials rrust be
retreated until the UTS have been met Once the UTS
are met the treatment residuals would be disposed in
a RCRA Subtitle C hazardous waste landfill.
All sediments from the sewer remediation, large cebris,
and spent carbon will be incinerated (4,000 yds3).
However, it is anticipated that most of the had road
materials (approximately 4,000 yds9 minus those
materials generated from the sediment dewsrering
facility) would not require treatment With respec to the
31.000 cubic yards of creek sediments, further a-alysis
of these sediments will provide an estimate of the
percentage of sediments that meet UTS and ray be
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able to be land disposed without further treatment. It is
believed that the majority of the creek sediments could
be landfilled without treatment , Under certain
circumstances, the data from these analyses might be
utilized by OCC to support a petition for a site-specific
variance from treatment standards in accordance with
RCRA regulations (40 C.F.R. §268.44).
The overall costs for the treatment and final disposal of
the wastes from the remedial action are expected to
range from $15 million (rf only 4,000 cubic yards require
treatment) to $27 million (if all materials require
treatment). Actual costs within this range will depend
upon the percentage of the 35,000 tons of haul road
materials and creek sediments that must be treated (by
incineration to meet UTS for organic chemicals or waste
stabilization to meet UTS for metals) prior to disposal in
a RCRA Subtitle C landfill.
The incineration of all Love Canal remedial wastes, as
specified in the 1987 ROD and the PCD, would offer a
slightly greater degree of permanence than the land
disposal of materials with low levels of contamination
without treatment, as presented herein. Pursuant to the
1987 ROD, the incineration of materials with low
chemical concentrations would destroy some contami-
nants that are present at levels below the UTS. This
greater degree of permanence provided by the 1987
ROD remedy, however, is likely to be minimal since, if
the UTS requirements are met without treatment, the
level of contamination in these materials would be
relatively low, and incineration would not result in any
substantial incremental environmental benefits beyond
those provided by disposal in a RCRA Subtitle C
Landfill. In addition, EPA believes that the incremental
risks to human health and the environment from the
land disposal of those untreated materials that already
meet UTS, along with incineration residuals, would be
inconsequential.
SUPPORT AGENCY COMMENTS
NYSDEC has concurred with the findings of the ESD.
AFFIRMATION OF STATUTORY DETERMINATIONS
Considering the new information that has been
developed and the changes that have been made to the
selected remedy, EPA and NYSDEC believe that the
remedy remains protective of human health and the
environment, complies with all federal and state
requirements that are applicable or relevant and
appropriate to this remedial action at this time, and is
cost-effective. In addition, the modified remedy utilizes
permanent treatment and alternative treatment (or
resource recovery) technologies to the maximum extent
practicable.
PUBLIC PARTICIPATION
EPA and NYSDEC rely on public input to ensure that
the concerns of the community are considered in
selecting an effective remedy for each Superfuhd site.
To this end, this ESD is being made available to the
public for review. In accordance with the requirements
of CERCLA, EPA will publish a notice of this ESD in the
local'newspapers: The Niagara Gazette and The
Buffalo News.
Simultaneously with the publication of this ESD, the
United States is lodging a proposed modification of the
PCD in federal district court which addresses the same
matters as those addressed in this ESD.
Notice of a comment period on the proposed
modification to the PCD will be published in the Federal
Register by the United States Department of Justice.
This notice will provide further details concerning the
submission of comments on the proposed modification
to the PCD. The comment period will run for thirty days
following the date of publication of that notice. There
will be no separate comment period on this ESD.
The 1987 ROD, the 1989 PCD, and the proposed
modification to the PCD that is being lodged with the
federal district court will be available for public
inspection at the EPA Public Information Office,
Carborundum Center Suite 530, 345 Third Street,
Niagara Falls, New York 14303. The documents may
also be reviewed at EPA's Region II Office located at
290 Broadway, New York, New York 10007-1866 by
contacting George Shanahan, Assistant Regional
Counsel, at (212) 637-3171. Once the Federal Register
notice is published, copies of the notice also will be
made available at the above addresses.
Any comments received concerning the subject matter
of this ESD, which are received within the 30-day
comment period for the proposed PCD modification, will
be addressed within the context of the proposed PCD
modification. Further information can be obtained by
contacting Mr. Shanahan.
As indicated above, this ESD will be included in the Site
Administrative Record, which is available at the
repositories for public review.
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eta/., Civil Action'No. 93-335 LON, was
lodged on November 15,1996, with the
US. District Court for the District of
Delaware. The proposed consent decree
would settle an action that the United
States brought on behalf of the U.S.
Environmental" Protection Agency under-'
Section i07(a) of the Comprehensive. ' '
Environmental Response, -- ;
Compensation, and Liability Act, as -
amended ("CERCLA").-42 U.S.C.
9607(a), against Johnson Cdntrbls, Inc.
("JQ"), for recovery of response cpsts
incurred by the United .States in '''
connection with the'Wildcat Landfill -
Superfund"Site, located in Kent County,
Delaware, near the City of Dover ("the
Site")..The consent decree'Wbuld also ;
resolve the .claims that JCI brought in :
this action under Section 113(0(1) of .
.CERCLA, 42 y.S.C. $613(0(1); Against .
third-party defendants the City'of Dover'.i
DelawareV.th"eU.S.:pepartmenf;of. :' .
' Defense, ELC Dover, Inc.,; ILC Industries',
Inc., J.C, Penney Co., Inc.,.General.
Foods CorpM and Sherwin-Williams Co.,
alleging that those parties Were;liable to':
reimburse JO for an equitable share of
any response costs for which'JCI was
found liable to reimburse the United
States relating to the Site.' Under the '
. terms'of the consent decree, the '
$550,000. in funds that the Settling
Defendants (JCI and each of the third-
party defendants) collectively have paid
into an escrow account pending
finalization of this proposed settlement,
plus interest, will be paid to the United
States to reimburse the EPA Hazardous
Substance Superfund. -'
The Department of Justice will
receive, for a period of thirty- (30) days
from-the date of this publication, -
comments relating to the proposed
consent decree. Comments should be
addressed to the Assistant Attorney
General of the Environment and Natural
Resources Division, Department of. .
Justice, Washington, DC 20530,.and
should refer to United States v. Johnson
Controls. Inc. v.Clty of Dover, Delaware.
et al., D.Ji-No. 90-!ll-3-595.-In.addition,
pursuant^o Section 7003(d) of RCRA, 42
U.S.C. 6973(d). any member of the
public who desires a public meeting in.
the area affected by the proposed .:.. ..
consent decree in order to discuss .the
proposed consent decree prior to its
final entry by the court may-request that
such a meeting be held. Any such '..''.
request for a public meeting should be
sent to the same address and bear the
same reference as indicated abdve for '
submission of comments. '-'-'-':':;', '
The proposed consent decree may be
examined at the office of the U.S.
Attorney for the District of Delaware,
1201 Market Street, Suite 1100.
Wilmington, DE19899-2046; the Region
in Office of the Environmental
Protection Agency, 841 Chestnut
Building, Philadelphia, PA 19107; and
at the Consent Decree Library, 1120 G
Street NW.,' 4th floor, Washington, DC
20005. A copy of the proposed consent
decree;may be obtained in person or by
mail from the Consent Decree Library,
1120 G'Street NW:, 4th floor,
Washington, DC 20005. In requesting a
copy, please enclose a check in the
amount of $7.75j25 cents per page-
reproduction costs) payable to the
Consent Decree Library. - . ~
WalkerSmiuV: :;.-:;^ '".: ;
Deputy Chief. Environmental Enforcement ''"
Section, Environment and Natural Resources
Division. :x.--y :-5- ';\;i!-; ' :.;;" -
[FR.Doc. 96-30807 Piled12^3-4»6; 8:451 am)
B1LUMQ CODE M10-i&4i»C V . ' ', ",.V'V; ''\, ."~
Notice 6f Locking; Sccprid'V.r .,:
Modification of thei Partial Consent ' <
Decree on Remediation Between v
United States, State of New York and
Occidental Chemical Corporation : .'
Pursuant to the Comprehensive :''"'>;'
Environmental Response, ' ''. .--.' .'-"
Compensation and Liability Act ';'''-
In accordance with. Departmental.
policy, 28 CFR § 50.7i 38 Fed. Reg. r .
19029, and Section 122(d) of the
Comprehensive Environmental
Response; Compensation and Liability
Act, as amended (CERCLA), 42 U.S.C.
§ 9622(d), notice is hereby given that on
November 15,1996, a proposed Second
Modification of the Partial Consent -
.Decree on Remediation between United :
States, State of New York and . ;. ,
Occidental'Chemical Corp', was lodged
with the United States Distrirt Court for
the Western District of New York in4
United States v. Occidental Cheriiical
Corporation, et ol:. (Love Canal), Civil;
Action No. 79-990(JTCJ. ,
The Love Canal litigation was . .
commenced in 1979 seeking injunctive
relief and cost recovery in connection -
with the disposal by Occidental of
hazardous substances at the Love Canal
Landfill Site near Niagara Falls, New
York. On -March 19, .1996, the Court
entered a Consent Decree pursuant to '
which the United States will recover'a
total of $137 million (plus interest) in
response costs incurred in connection
with the Site. On July 1,1994, the Court
approved a Consent Judgment between '
New York State and Occidental under
which Occidental agreed, infer alia, to
perform operation and maintenance -
(6&M) of the remedy at the Site and to
pay $98 million in settlement of the
State's claim. The instant Decree will
not affect either of these prior
settlements'.
The Second Modification modifies the
Partial Consent Decree on Remediation :
(PCD), whichivas previously entered oh
September 20.^989. Under the'originaT
PCD, all wastes from the Love Canal site
were to be incinerated. Subsequent
regulations provide that certain wastes
with low levels of toxicity can be ;. .
landfilled at licensed facilities:The :; '
Second Modification to the PCD would,
upon entry by the Court, authorize ";
Occidental to landfill some Love Canal
wastes in accordance with applicable . ..
regulations and incinerat&remaining ,
wastes. The Second Modification will' .,
retain the standards for thermal ;;",. ..'
destruction contained in the priginal'.'';..'
Decree. These standards are more .. ' .'r :
stringent >h«Ti are otherwise required, .-..
under current regulations. These..- ,'.'.'".
changes are. described in greater detail .
. m the Explanation of Significant .. ._'.
Differences (1ESD), which was prepiared,
by the United States Environmental. ..t,
Protection Agency (EPAJ^ and which; ".-..
accompanies, arid is a part of,-'the ' ..'..-
Second Modification. The instant. " ..,
Decree, if approved by the Court, will - ",
resolve all outstanding remedial issues
m the Love Canal litigation. . . "
The Department of Justice will
receive, for a period of thirty (30) days
from the date of this publication, v
comments relating to the Decree
Modification: Comments should be
addressed to the Assistant Attorney
General of the Environment and Natural
Resources Division, Department of
Justice, Washington, D.C. 20530, and
should refer to {/ofted Stares v. y
Occidental Chemical Corporation, DiJ.
Ref. 90-5-1-1-1229. : -
The proposed Decree Modification
may be examined at the Office of the
United States Attorney, Western District
of New York at Federal Centre.'lSS
Delaware Avenue; Buffalo, New York
14202; the offices of EPARegion'IIat -
290 Broadway, New York, New York " '
10007-1866; and at the Consent Decree
Library afll20 G Street, N.W., 4tiY - :
Floor, Washington, D'.C. 20005, (202)
624-0892. A copy of the proposed". , '
Decree Modification may be obtained in
person or by mail from the Consent
Decree Library, 1120 G Street, N.W;; 4th
. Floor, Washington. D.GV 20005. In
requesting a copy, please enclosed a '
'check in the amount of $5.50 (25 cents
per page reproduction cost) payable to
the Consent 'Decree 'Library'... . V
. BruceS.Ge&er^'^^''.'^. ''' ';"..*''.
1 Principal Deputy £hief, Environmental .-;..
Enforcement Section. Environment and....
Natural Resources Division. '['
PR Doc. 96-30893 Filed 12-3-96; 8:45 ami
BILLING CODE 441O-16-M
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United States Department of Justice
Environment & Natural .Resources Division
Environmental Enforcement Section
mfl tddremi: . mntrnter »ddre«i: telephone:
Benjamin FnaOin Station 1425 New Yort Avenue, N.W. (202)514-2794
P.O. Bat 7611 Room 13005 (202) 5144097FAX
WaMngian. B.C. 20044-7611 WaMnfton, D.C. 20005
90-5-1-1-1229
November 13, 1996
Honorable John T. Curtin
United States District Court Judge
Western District of New York
United States Courthouse, Room 624
68 Court Street
Buffalo, New York 14202
Rodney C. Early
Clerk of the Court
United States District Court
Western District of New York
United States Courthouse
68 Court Street
Buffalo, New York 14202
Re: United States of America, et al. v. Occidental Chemical
Corp.. et al. fLove Canal Landfill^. Civil NO.79-990C
(W.D.N.Y.)
United States of America, et al. v. Occidental Chemical
Corp.. et al. (S-Area Landfill). Civil No. 79-988C
(W.D.N.Y.)
Dear Judge Curtin and Mr. Early:
I am writing on behalf of the United States and the State of
New York to describe and lodge with the Court the accompanying,
proposed Modification to the Love Canal Partial Consent Decree
(LCPCD or Partial Decree) concerning incineration and disposal of
"Love Canal Remedial Wastes" as that term is defined in the
LCPCD.1 On September 20, 1989, this Court entered the LCPCD
1 An original and two copies of the LCPCD modification
accompany the letter to the Clerk of the Court. The original and
one of the copies are provided for the files of the Clerk of the
Court. In addition a second copy is provided so it can be file-
and date-stamped and returned to me at the Department of Justice
in the enclosed, postage-paid envelope for our records. Finally,
under separate cover, a third copy is being expressed to the
Court. Please note that, as an aid to the Court, its copy
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between the United States, the State of New York, and the
Occidental Chemical Corporation (OCC) in the Love Canal Landfill
litigation. The LCPCD requires, .inter alia, that OCC thermally
treat all Love Canal remedial wastes in a Thermal Destruction
Unit (TDU) to be constructed at its plant site in Niagara Falls,
New York. As this Court is aware, the parties have experienced
great difficulties implementing;the TDU requirement.
In order to finally resolve these difficulties, the proposed
Modification authorizes, in accordance with applicable United
States Environmental Protection Agency (EPA) regulations, the
incineration of some of those wastes at permitted facilities
outside of New York State. With respect to the remaining wastes,
if analyses demonstrate that they already meet all applicable
treatment standards, they may be disposed of without prior
incineration, also at permitted facilities outside of the State.
It is important to note that, at this time, the United
States and the State are only lodging the proposed Modification
to the LCPCD with the Court. We will determine whether to
formally request approval by this Court of the Modification only
after we have published notice of the lodging of the proposed
Modification in the Federal Register soliciting public comments
for a period of thirty days and evaluated the comments, if any,
which are received.
In light of the long history in these matters, it would be
helpful to briefly describe the LCPCD incineration requirements
and their origins as well as the subsequent regulatory changes
giving rise to the proposed Modification of the LCPCD.
LCPCD INCINERATION REQUIREMENTS .
The LCPCD provides, in pertinent part, that if a TDU has not
been constructed at OCC's plant site in Niagara Falls, New York
by June 1994, OCC is to submit for approval by the United States
and the State a report which. inter alia, proposes an alternative
method for accomplishing thermal treatment of Love Canal Remedial
Wastes. See. LCPCD, Section VI.E., f 37, pp. 37-40. In July
1994, the New York State Department of Law (DOL) informed the
Court that the Settling Parties to the LCPCD and the S-Area
Landfill Consent Decrees had agreed that OCC could defer
submission of such a report pending OCC's efforts to negotiate a
contract with a commercial source located outside of New: York
State for the incineration of wastes from several of OCC's
landfill sites, including Love Canal and the S-Area.
Unfortunately, OCC's efforts to negotiate such a contract were
delayed by a change in ownership of the facility in question.
includes the original LCPCD with the proposed modifications
inserted.
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.Because of changes in federal regulations since the entry of
the LCPCD in 1989, however, there are now several commercial
facilities with the apparent capability of treating Love Canal
and S-Area remedial wastes. Following discussions and contract
negotiations with certain of these facilities, OCC entered into
an agreement with Rollins Environmental, Inc., for thermal
destruction of these wastes. Accordingly, on August 8, 1996, OCC
submitted a Report pursuant to 5 37(a) of the LCPCD proposing
Rollins' facilities as an alternative method for thermal
destruction of the Love Canal Remedial Wastes. Further, as the
United States and the State informed the Court on August 12,
1996, that Report was accepted.
In the process of discussion of these issues, however, OCC
requested that EPA and the New York State Department of
Environmental Conservation (DEC) agree that OCC should be able to
make a demonstration that certain of the Love Canal Remedial
Wastes with low levels of contamination can be disposed, without
prior incineration, in a secure landfill permitted for the
disposal of hazardous waste consistent with currently applicable
federal and state requirements for land disposal. For reasons
discussed below, EPA and DEC believe that further consideration
of OCC's request is reasonable. However, since the LCPCD
currently requires that all Love Canal Remedial Wastes be
incinerated, a modification of the LCPCD will be necessary to
provide for the option of land disposal without prior treatment,
subject to a showing pursuant to 5 37 of the LCPCD,. as proposed
to be modified, that such an option is consistent with current
federal and state regulations.
ORIGINS OF LCPCD INCINERATION REQUIREMENTS
When EPA published its proposed plan for the
destruction/disposal of contaminated Love Canal sewer and creek
sediments in August 1987, it proposed one part per billion (1
ppb) of dioxin as the action level for determining whether the
sewer and creek sediments would be incinerated prior to being
landfilled. Sediments that were contaminated at levels below 1
ppb were proposed ^to be disposed without prior treatment in an
above-ground containment facility to be constructed at the
demolition site of former residences adjacent to Love Canal.
During the administrative comment period on the proposed remedy,
the community expressed a preference for the incineration of
wastes with levels of contamination below 1 ppb of dioxin over
the alternative of containing these low level wastes without
treatment.
Further inquiry by EPA at that time into the issue of
potential segregation of wastes above and below an action level,
such as l ppb of dioxin, disclosed major problems with
implementing such a remedy. It was anticipated that since the
excavated creek sediments would be as much liquid as solid in
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form, very large dewatering facilities would be required to
segregate the sediments for further analysis. Substantial
analytical problems, as well as greatly increased costs would be
engendered in sampling the creek sediments in situ. Moreover,
remediation of the creeks would have been unacceptably delayed.
Accordingly, EPA determined that segregating the wastes'into high
and low contamination categories for either incineration or land
disposal, respectively, was not an implementable option. EPA's
Record of Decision (ROD), which was issued on October 26, 1987,
therefore required that all sediments be incinerated,
notwithstanding the actual level of contamination.
The 1989 LCPCD modified the 1987 ROD primarily by moving the
proposed incinerator from the Love Canal Site to the OCC Plant
Site, and by providing for storage of the wastes there instead of
at the Love Canal Site. The LCPCD, however, adopted the ROD'S
requirement of thermal treatment of all "Love Canal Remedial
Wastes."
CURRENT SITE CIRCUMSTANCES AND REGULATORY REQUIREMENTS
FOR WASTE TREATMENT AND DISPOSAL
There have been many changed circumstances since the
Settling Parties first attempted to resolve these waste treatment
and disposal issues. The reasons expressed in the 1987 ROD for
EPA's determination that it would not be feasible to implement a
treatment remedy that would require segregation of wastes into
categories of high and low contamination levels are no longer
relevant. The creeks have been since been remediated; all
dredged sediments have been dewatered and stabilized and are in
storage at OCC's plant. The action level of 1 ppb of dioxin that
EPA had proposed in 1987 as the demarcation between Love.Canal
wastes that must be incinerated, as opposed to wastes that could
be landfilled, subsequently has been adopted as the applicable
dioxin treatment standard in EPA regulations promulgated pursuant
to the Resource Conservation and Recovery Act (RCRA).
In addition to the dioxin standards, additional treatment
requirements have been imposed by EPA RCRA regulations for
approximately 200 additional hazardous constituents. Waste
materials that are incinerated must meet all of these RCRA
treatment standards before the residues from the treatment can be
landfilled. If residues from incineration do not meet the
treatment standards, they must be incinerated again until they
do, before they can be landfilled. .
However, under the current universal treatment standard
regulations, 40 C.F.R. § 268.40, waste materials which, without
prior treatment, have levels of contamination low enough to meet
all those standards, which are prerequisites to land disposal,
can be land-disposed without such prior treatment. The
relationship between RCRA land disposal requirements and
' . ' -4-
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hazardous waste site remediation has been the subject of further
proposed EPA rulemaking. For example, EPA recently has proposed
changes to RCRA regulations specifically to address contaminated
soils (but not sediments) from hazardous waste remediation sites.
58 Federal Register 48091 (September 14, 1993) and 61 Federal
Register 18780 (April 29, 1996). Under certain circumstances,
these EPA regulations would allow for approval of a variance from
the treatment standards.
The proposed Modification to the LCPCD reflects these
changed circumstances both with respect to the status of the
remediation at Love Canal and also with respect to the changes in
federal regulations. Under the Explanation of Significant
Differences and the Modification to the LCPCD, however, all Love
Canal materials to be incinerated must be thermally processed at
facilities that have demonstrated 99.9999 percent destruction
removal efficiency (DRE) for dioxin surrogates more difficult to
incinerate than dioxin, and which will be operated at that DRE.
Finally, the proposed Modification retains the flexibility in the
LCPCD for the selection of alternatives for the treatment and
disposal of Love Canal Remedial Waste from among alternatives
that are "available."
The first shipments of Love Canal wastes for off-site
treatment were nade during August, in accordance with the
existing provisions of 5 37 of the LCPCD, as referenced in OCC's
August 8, 1996 Report pursuant to.5 37.
SOLIDS INCINERATOR NO LONGER NECESSARY FOR THE S-AREA REMEDIATION
The disposal and treatment issues discussed above also
relate to the S-Area litigation in which a Stipulation on
Requisite Remedial Technology (the RRT Stipulation) was approved
by this Court on April 12, 1991. The RRT Stipulation contained a
Remedial Waste Management Plan and related milestone schedules.
Since the governments were concerned that the existing liquids
incinerator might not have sufficient capacity to treat all the
liquids generated by the remedial program, these provisions
require OCC to revise its permit applications to also allow for
the incineration of S-Area liquid wastes in the solids
incinerator to be constructed at the OCC Plant Site pursuant to
the LCPCD.
Based upon assessments which OCC prepared, and the
governments reviewed, all parties to the RRT Stipulation now
believe that adequate capacity is available in OCC's existing
liquids incinerator at its Plant Site to treat all liquid wastes
generated by the S-Area remediation. Alternatively, in the event
that there proves to be insufficient capacity in OCC's existing
liquids incinerator to handle all S-Area remedial wastes,
sufficient commercial capacity is available elsewhere in the
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United States to treat S-Area wastes without delaying the
remedial installation schedule.
Thus, the parties have concluded that a solids incinerator
will not be needed to address such liquid wastes and that OCC
will not be required to seek a permit to incinerate S-Area
remedial wastes in an on-site solids incinerator. Accordingly,
the parties to the S-Area RRT Stipulation do not believe that
incineration issues require any consideration by the Court with
respect to the S-Area Landfill and, unless otherwise directed by
this Court, will proceed to implement the RRT Stipulation in
conformity with the understandings described above.
Finally, we have also considered whether any of the other
decrees in cases before this Court relating to OCC landfill sites
require modification at this time. In our opinion, they do not.
If this Court should have any questions, or would like the
Settling Parties to provide further information concerning these
matters, we would be pleased to respond to your questions or
concerns. Otherwise we request that this Court take no formal
action until after the comment period on the proposed
Modification to the LCPCD has closed; we have addressed the
comments, if any are received; and we can make a determination
whether to request approval of the LCPCD Modification described
in this letter.
Thank you for your attention to this matter.
Very truly yours,
STEVEN R. BAER
Senior Counsel
Enclosures: proposed Modification to LCPCD
cc: Parties on Service List
George Shanahan, Assistant Regional Counsel, United States
Environmental Protection Agency, Region II
Mary Pat Fleming, Chief, Civil Division, Office of the
United States Attorney, Western District of New York
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA, )
THE STATE OF NEW YORK, )
UDC-LOVE CANAL, INC., )
)
Plaintiffs, ) Civil Action No. 79-990C
)
v. )
' )
OCCIDENTAL CHEMICAL CORPORATION, )
CITY OF NIAGARA FALLS, NEW YORK, )
and BOARD OF EDUCATION OF THE )
CITY OF NIAGARA FALLS )
(Love Canal Landfill) , )
)
Defendants . )
SECOND MODIFICATION OF PARTIAL CONSENT DECREE ON REMEDIATION
BETWEEN UNITED STATES, STATE OF NEW YORK
AND OCCIDENTAL CHEMICAL CORPORATION
I. Preliminary Statement
1. This Second Modification of Partial Consent Decree on
Remediation between United States, State of New York and
Occidental- Chemical_Corporation_is_lodged pursuant_to_Paragraph _ .
89 of the Partial Consent Decree.
*
2. On September 20, 1989, the Court entered the Partial Consent
Decree (LCPCD or Partial Decree) between plaintiffs United States
of America and State of New York and defendant Occidental
Chemical Corporation (OCC) (collectively, the Settling Parties)
in the above-referenced action concerning the Love Canal Landfill
(the Site).
3. The Partial Decree reflected the modification through an
Explanation of Significant Differences (ESD) of the terms of the
Record of Decision (ROD) relating to the Site, issued by the
-------
United States Environmental Protection Agency (EPA) on October
26, 1987 and made the ROD, as modified, enforceable pursuant to
the Partial Decree.
4. The ROD, at pp. 26-27, ultimately selected a remedial action
alternative requiring the thermal treatment of all wastes
generated during remediation of vthe sewers and creeks in the
"Love Canal Area11 (as this term was subsequently defined in the
Partial Consent Decree).
5. As related in the ROD, at pp. 26-27, EPA had originally
selected a remedial alternative which required thermal treatment
only for remedial wastes that were determined by testing to
contain 2,3,7,8-tetrachlorodibenzo-p-dioxin (dioxin) at levels
above one part per billion (1 ppb). Remedial wastes that did not
contain dioxin at levels above 1 ppb would have been land
disposed. Subsequently, EPA promulgated regulations which, inter
alia, have adopted the 1 ppb level for dioxin as the action level
that would require treatment of remedial wastes prior to_land.
disposal of such wastes. 40 C.F.R. § 268.40.
6; The ROD, at pp. 18-19, determined, however, that the
segregation of wastes above and below the.proposed l ppb action
level for dioxin would not be readily implementable and would
unduly delay the remediation of the creeks in the Love Canal
Area.
7. Accordingly, the ROD concluded at pp. 24-27, based upon
these implementation problems, as well as public concern that
untreated wastes might be redisposed at the Site, that all "Love
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Canal Remedial Wastes," as that term would be subsequently
defined in the Partial Consent Decree, would require thermal
treatment.
8. Pursuant to the terms of the Partial Consent Decree and an
BSD published concurrently with the lodging of the Partial
Consent Decree on June 1, 1989, the Love Canal Remedial Wastes,
including creek sediments, have been transported by OCC to its
main plant in Niagara Falls, New York and are currently being
stored at that OCC plant.
9. EPA, concurrently with the lodging of the Second
Modification of Partial Consent Decree on Remediation between
United States, State of New York and Occidental Chemical
corporation has published or will cause to be published an
Explanation of Significant Differences (1996 BSD) concerning the
changes to the selected remedial alternative to be effectuated by
the instant modification to the LCPCD.
10. The_ 1996..BSD-explains.that.,..in.light_.of_±he. completion..of. .
sediment removal from the creeks and the adoption by EPA of the l
ppb action level for dioxin, the segregation of remedial wastes
is now feasible, implementable, protective of human health and
the environment, and cost-effective.
11. EPA has proposed regulations at 58 Federal Register 48091
(September 14, 1993) and 61 Federal Register 18780 (April 29,
1996), which, if ultimately promulgated, could, under certain
circumstances, modify the standards for the treatment and land
disposal of soils from the remediation of hazardous waste sites.
-3- .-..'
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NOW THEREFORE, it is hereby ORDERED, ADJUDGED, AND DECREED
that the Partial Decree shall be modified as follows (and as
indicated in the revised text set forth as Attachment A, hereto)
to allow for a determination, based upon further analysis of Love
Canal Remedial Wastes, that some of these wastes may be
segregated for disposal in facilities permitted, in accordance
with requirements of all applicable federal and state law, for
the disposal of hazardous wastes without prior thermal treatment:
II. Second Modification of Partial Decree
12. Page 15, Section III, paragraph 3.ee., the definition of
"Remedial Actions," starting on the second line therein, shall be
modified to include the underlined language below:
... as modified herein and bv the 1996 Explanation of
Significant Differences (1996 ESDV (Attachment A to
this Second Modification to the Partial Consent Decree)
which OCC commits to perform pursuant . . .
13. Page 16, Section IV. PURPOSE. Paragraph 5 shall be modified
to add the following to the third line therein:
temporary storage and thermal destruction or disposal
of Sewer and Creek sediments ...
14. Page 16, Section IV. PURPOSE. Paragraph 5 shall be modified
to add and delete, as indicated, the following in the ninth line
therein:
destruction^ ej? other permanent treatment or disposal
of these materials, by ensuring ....
15. Page 17, Section V.A., Paragraph 6, starting at line 17
shall be modified to include the underlined language below:
and, where practicable, Large Debris, as. and if.
necessary to meet all applicable treatment standards
required bv federal and State law for the land disposal
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(v*'w'X*»:s*»:.;«0'.v :^*i.-;.-:*'-".- ;'.:'.
^"WiWNVjc^: ««x<
of such materials; (g) dispose of residues remaining
after thermal destruction of such wastes, as well as
any wastes that do not require treatment pursuant to
federal and State requirements for the land disposal of
wastes. in accordance with all applicable laws . . .
16. Page 18, Section V.&. Paragraph 7 shall be modified to
delete the word "and" on line 6 thereof and to add the underlined
language as follows:
... to Paragraph 16, and all Plans and Specifications
approved by the Governments pursuant to this Decree,
and any report filed pursuant to Paragraph 37. below.
and approved bv the Governments or the Court
17. Page 22, Section VI.A., Paragraph 22, second line, should be
modified to add the underlined language below:
ROD, as modified by the 1996 ESP and this Decree, by
implementing ...
18. Page 37, Section VI.E., Paragraph 37.a, shall be modified to
strike the following language on lines 3 and 4:
within 30 dayo of the fifth anniversary of the lodging
of this Decree
and to insert the following underlined language, in its place:
by October 15. 1996. and annually thereafter, submit to
''.
19. Page 38, Section VI.E., Paragraph 37.a, shall be modified to
add the following underlined language commencing on the fourth
line of page 38:
thermal destruction of Love Canal Remedial Wastes. or
the land disposal of such wastes without treatment to
the extent allowed by federal and state law, at another
. facility or facilities.
20. Page 38, Section VI.E, Paragraph 37.b, commencing on the
fifth line thereof, shall be modified to add the language
underlined, below:
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aj««MMs><«u^>**^>»*»M^
facility or operations, the analytical protocols and
sampling plans (with appropriate statistical
justification for the number and location of samples)
to be utilized for purposes of determining compliance
with land disposal requirements pursuant to Subtitle C
of the Resource Conservation and Recovery Act and of
determining any petition bv OCC "to EPA pursuant to 40
C.F.R. S 268.44 for a variance from such land disposal
requirements with respect to certain Love Canal
Remedial wastes . and the manner and schedule for
implementing the method, and a detailed description of
all other alternative . . .
21. Page 39, Section VI. E. , Paragraph 37. c shall be modified as
follows commencing on the fifth line of page 39:
government approvals necessary to destroy^ er treat. or
dispose of materials, or residues from the treatment of
such materials, with physical and chemical . . .
22. Consistent with the above changes, the Certification
provision contained on Pages 40-41, Section VI. F. , Paragraphs
39. d and 39.e shall be construed to allow OCC to certify, as
appropriate, to the land disposal of waste materials without
treatment where such disposal is in accordance with federal and
state regulations for the land disposal of waste materials.
III. Publication of Notice of Lodging, Opportunity to
Comment and Entry _
23. This Modification shall be lodged with the Court for a
period of 30 days for public notice and comment. The United
States reserves the right to withdraw or withhold its consent if
the comments regarding this Decree disclose facts or
considerations which indicate that this Modification is
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' ~<5S8JSSSSS!asSS*%S^^
inappropriate, improper, or inadequate.
SO ORDERED THIS DAY OF October, 1996.
JOHN T. CURTIN
United States District Judge
The Parties herein, through their undersigned
representatives, who are authorized to enter into this Second
Modification of Partial Consent Decree on Remediation between
United States, State of New York and Occidental Chemical
Corporation, sign as follows:
FOR THE UNITED STATES OF AMERICA
LOIS J. SCHIFFER
Assistant Attorney General
Environment and Natural Resources
Division
Date: #-3L*)-7L By:
STEVEN R. BAER
Senior Counsel
CHERYL L. SMOUT
P.- SUSAN LIVELY
CAROLINE SPRINGER
FRANCIS X. LYONS
Trial Attorneys
Environmental Enforcement Section
(202) 514-2794
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PATRICK H. NeMOYER
United States Attorney
Date: -- by:
Q
MARTIN J^lfLTTLEFIEVD
Assistantr-^United States Attorney
Western District of New York
138 Delaware Avenue
Buffalo, NY 14202
-8-
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Date
STEVEN A. HERMAN
Assistant Administrator for Enforcement
and Compliance Assurance
United States Environmental Protection
Agency
401 M Street, S.W.
Washington, DC 20460
&OHN H. WHEELER.
Senior Attorney
Office of Enforcement and Compliance
Assurance - 2272
United States Environmental Protection
Agency
401 M Street, S.W.
Washington, DC 20460
-9-
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Date
i/s/n
JEANNE M.
Regiona
GEORGE/ A.i SHAN;
Assistant Regional Counsel
Region II
United States Environmental Protection
Agency
290 Broadway
17th Floor
New York, NY 10007-1866
(212) 617-3171
-10-
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.XNSXVVVfcX .*.-.'
DENNIS C. VACCO
Attorney General of the
State of New York
Date: (L/£&&e^. y , 1996 By:
EUOENE MARTIN-LEFF .
N^w York State Department of Law
120 Broadway
New York, New York 10271
11-
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FOR OCCIDENTAL CHEMICAL CORPORATION:
PIPER & MARBURY LL.P.
Thomas H. Truitt
Steven K. Yablonski
Anthony L. Young
1200 Nineteenth Street, N.W.
Washington, D.C. 20036-2430
and
PHILLIPS, LYTLE, HITCHCOCK,
BLAINE&HUBER
Paul B. Zuydhoek
3400 Marine Midland Center
Buffalo, New York 14203
and
PHILLIPS, NIZER, BENJAMIN,
KRIM& BALLON
George Berger
Martin B. Wasser
666 Fifth Avenue
New York, New York 10019
Dated:
STEVEN K. YABLONSKI
ANTHONY L YOUNG
Attorneys for Defendant
OccidentalChemical Corporation
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N^j>WWJ^^^
Attachment A
CHANGES TO LANGUAGE
LOVE CANAL PARTIAL CONSENT DECREE
1. Paoe 15. Section ill. Paragraph 3.ee:
ee. "Remedial Actions" means those remedial measures
authorized by the 1987 ROD, as modified herein, |n$W'tr>f 1 '996
£$iffip^o^
|ft|sj$§^^ which OCC
commits to perform pursuant to this Decree.
2. Paoes 15 and 16. Section IV. PURPOSE. Paragraph 5:
5. The purpose of this Decree is to protect the public health,
welfare, and the environment by providing for the temporary storage and
thermal destruction or jdisposal of Sewer and Creek Sediments and
certain other waste materials that have been or will be generated during
remediation of the Love Canal Area, by providing a schedule and
framework for OCC to assume responsibility for the removal of Love
Canal Remedial Wastes from the Love Canal Site and for temporary
storage and thermal destruction! ef other permanent treatment U
|ispOs0|.of these materials, by ensuring that the Work required by the
Decree is performed in a timely and proper manner so as not to delay the
present schedule for excavation of the creeks and the storage of creek
sediments as adopted by NYSDEC, and by ensuring that the
Governments are reimbursed for all costs incurred in connection with the
activities carried out under, or with respect to, this Decree, as provided
herein. .
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3. Pane 17. Section V.A.. Paragraph 6:
A. Commitment to Perform Remedial Actions
6. OCC shall perform the following Remedial Actions and
related work: (a) receive or pick up, process, and, if necessary,
temporarily store at the Love Canal Site, Sewer Sediments, Creek
Sediments, and Large Debris; (b) pick up, and prepare for transportation
to the OCC Plant Site, O&M Wastes and LTF Sludge; (c) diligently seek
permits for a Centralized Storage Facility at the OCC Plant Site for
storage of, among other things, Creek Sediments, Sewer Sediments,
Large Debris, and O&M Wastes, and, if the permits are issued, operate
the facility; (d) transport all Love Canal Remedial Wastes to the OCC
Plant Site for temporary storage and thermal destruction or other
permanent treatment; (e) diligently seek permits for an incinerator at the
OCC Plant Site to thermally destroy, among other things, Sewer
Sediments, Creek Sediments, and O&M Wastes and, if the permits are
issued, construct and operate the incinerator; (f ) thermally destroy Creek
Sediments, Sewer Sediments, O&M Wastes, LTF Sludge and, where
practicable, Large Debris/qas>and':if« -'necessary' to meet efi applicable
b^atmenif standards required i>V ^federal -'and 'State, law for the^Jahd
J. ^ ...... f fj f 'fvf A * ff-f wt > -tt-fff. * .. V- f. > '-V f -. v : f.v.
'disposal vof such 'materials; (g) dispose of residues remaining after
V \ W . V - V, V>V.^ Wk f fSV. " ** * W
thermal destruction of such wastes;^$ well as any wastes that -tio.not
ffeqtrfre treatment -pursuant tojfederaf and jState requirements for the Jand
Bispqsat of wastes, in accordance with all applicable laws and
regulations; and (h) reimburse the Governments for all costs incurred not
inconsistent with the NCP in connection with the activities carried out
under, or with respect to, this Decree. .
4. Page 18. Section V.A.. Paragraph 7:
7. OCC shall complete the Remedial Action and Work referred
to in Paragraph 6, above, and more particularly set forth in Section Vi,
below, in accordance with the standards, specifications, and
requirements, and within the time periods* prescribed in Section VI, the
Project Schedule approved pursuant to Paragraph 1 6, &n4-a\\ Plans and
Specifications approved by the Governments pursuant to this Decree!
>< J fJi-ff^ff / < t v $(#.. *V< ***: tftf&tV*' " VkJ- t ^^f t A**** * * t s ^ * ''"" k
rvrf,any report fifed pufsuanttp^raragrapti 3/,;befoyy, and approved^by
'^ '""" '"'"""
5. Paoe 22. Section VLA.. ParaaraDh 22:
22. OCC shall finance and perform portions of the 1987 ROD,
as modified by Decree, by implementing the
Remedial Actions^'ianld^orirspecifieid in Paragraph 6 and more fully set
forth in Subsections B through F, below.
6. Pages 37 and 38. Section VI. E.. Paragraph 37. a.:
37. a. If the TDU is nbt permitted and operational within five
years after the lodging of the Decree, OCC shall, within 30 doys of the
fifth anniversary of the lodging of this DocrGoiiiOctoberliiil^E and
annually thereafter, submit to the Governments for their approval a
report proposing an alternative method for accomplishing, thermal
.' - 2 -
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destruction of Love Canal Remedial Wastes at the OCC Plant Site. If no
alternative method for accomplishing thermal destruction at the OCC
Plant Site is available, OCC shall submit to the Governments for their
approval a report proposing an alternative method for accomplishing
thermal destruction of Love Canal Remedial Wastes/or the {and disposal
|f^ch"^
$t^sl&W/at another facility^r,facl|it.fes. If no alternative method for
accomplishing thermal destruction of Love Canal Remedial Wastes at
another facility is available, OCC shall submit to the Governments for
their approval a report proposing an alternative method for permanent
treatment of the Love Canal Remedial Wastes which, at a minimum, shall
permanently reduce the mobility and toxicity of the wastes and meets
all applicable legal requirements, or explaining why no such alternative
method is available. '
7. Page 38. Section VI.E.. Paragraph 37.b.:
b. The report required to be submitted pursuant to
subparagraph (a) shall include, at a minimum, a detailed description of
the alternative method proposed by OCC, including the technology
and/or facility to be used, the location of the facility or operations, fnli
v,s f.y.y + r v.w ^ vj% .
protocol ana/sampfjng rplans iwth appropriate statistical
for the numberanU1oc$tjQX.df samples) to be titled for
purposes.of determining compfiance ,with land disposal requirements
pgr^yanHo Subtitle C of the Resource Conservation and Recovery 'Act
prid^>f Determining any petition by OCC to EPA pursuant to 40 C.F.a. f
:268.44 for-a variance f romsuch land disposal requirements with respect
io5j&ftafn'LoveCanal Remedial wastes,, and the manner and schedule for
>%.*,.« -. v f f~. . v ^~. -. . ^ ^. '
implementing the method, and a detailed description of all other
alternative methods examined by OCC and the basis for OCC's
determination that such methods are not available.
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8. Pages 38 and 39. Section VI.E.. Paragraph 37c.:
c. For purposes of this paragraph, a method is "available" if (i)
it has been effectively utilized on a full-scale basis to destroy or
permanently treat wastes with physical and chemical characteristics that
are similar to those of the Love Canal Remedial Wastes, (ii) there is
sufficient capacity to treat, the Love Canal Remedial Wastes and
adequately dispose of the treatment residues within a reasonable period
of time, (iii) personnel and ancillary equipment necessary to implement
the method are commercially available, (iv) in the case of an off-site
facility, the owner or operator of the facility holds all government
ft - y £ Vf f *>" f** vifvjww , t ffQp&vXf-K
approvals necessary to destroy; e^-treat, or-dispose; of materials|||f
^sitfui^Mm/thej^^tm'ent'bf'jsuch; materials, with" physical arid
chemical characteristics that are similar to those of the Love Canal
Remedial Wastes, and (v) in the case of a commercial facility, the
charges for treatment or destruction do not exceed the fair market rate
for such treatment or destruction or, if not market rate exists or can be
inferred, the charges are not disproportionate to the costs incurred by
the facility for treatment or destruction.
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