oEPA United States Environmental Protection Agency For more information You can view documents related to the Tittabawassee River, Saginaw River & Bay Contamination site in information repositories set up by EPA and MDEQ. The repositories are located in the Grace A. Dow Memorial Library, 1710 W. Saint Andrews St., Midland; the Hoyt Main Library, 505 Janes Ave., Saginaw; and the Alice and Jack Wirt Public Library, 500 Center Ave., Bay City. Information office EPA has opened a community information office in the Saginaw County Courthouse, 111 S. Michigan Ave., Saginaw. Or call 989-790-5215. On the Web EPA dioxin investigation: http://www.epa.gov/region5/sites/ dowchemical Michigan dioxin information: http://www.michigan.gov/deqdioxin Sign up for the listserv If you would like to be e-mailed site updates, send a blank message to: dow_dioxin-subscribe@lists.epa.gov Contacts These EPA community involvement coordinators can answer questions: Patricia Krause 312-886-9506 krause.patricia@epa.gov Don de Blasio 312-886-4360 deblasio.don@epa.gov Region 5 toll free: 800-621-8431, 9:30 a.m. - 5:30 p.m., weekdays At MDEQ contact: Cheryl Howe 517-373-9881 howec@michigan.gov Proposed Settlement for Superfund Cleanup Process Tittabawassee River, Saginaw River & Bay Contamination Site Midland/Saginaw/Bay City Region, Michigan October 2009 Since June 2009, EPA and Michigan DEQ have been negotiating with The Dow Chemical Co. the terms of how to proceed with a Superfund evaluation of the Tittabawassee River, Saginaw River, Saginaw Bay and their floodplains. This process would ultimately lead to a comprehensive cleanup of dioxin contamination originating at Dow's Midland plant. In late September, the negotiators agreed on a proposed settlement, contained in a legal document called an "administrative order on consent," or AOC. EPA and MDEQ will use the established Superfund processes and Dow will be required to meet the same obligations as at any Superfund site. EPA follows an established step-by-step process to determine the best way to clean up a Superfund site. EPA prefers that the companies considered responsible for the contamination (the potentially responsible party, or PRP) clean up a site. EPA ensures this by negotiating binding and enforceable settlement agreements with the PRP Under the proposed agreement, Dow would conduct the following work: Remedial Investigation and Feasibility Study The RI/FS phase of the process determines the nature and extent of contamination at the site, develops cleanup optionssuch as dredging, capping, etc.for addressing the contamination, and evaluates and compares the performance and costs of the various cleanup options. Remedial Design The RD phase of the process includes preparing for the cleanup at the site. It is during this phase that the engineering plans are developed for implementing the cleanup option EPA selected. In addition to the AOC, the parties negotiated a "statement of work" that details the specific tasks that the company will perform. Each of these documents is about 75 pages long and is available on EPA's Web site (see box to the left). This fact sheet highlights some of the key provisions. Public review and comment Dow has signed the AOC and will be bound by its terms once it is signed by EPA and MDEQ. But, EPA and MDEQ have not signed the AOCand will not sign it until after a thorough review by the public. Only then, after considering the comments received from the public, will EPA and MDEQ decide if they will sign the AOC as currently written. Alternatively, EPA and MDEQ may elect to reopen negotiations to address significant public concerns. A 30-day public comment period will begin Oct. 19, 2009, for the community to review and comment on the proposed settlement. On Nov. 5, 2009, there will be a public meeting where people can learn more about the settlement, ask questions and make oral comments. Comments can also be made in writing (see the box on P. 5 for detailed information about how to comment). The agencies realize that the proposed settlement is a complex technical and legal document. This fact sheet is one effort to explain the agreement in plain language and the Nov. 5 meeting will be an opportunity to get ------- questions answered. In addition, EPA has agreed to provide independent 3rd-party technical assistance to the community to review the proposed settlement. This assistance is provided by EPA's Technical Assistance Services for Communities program (see http://epa. gov/superfund/community/tasc/ for more information) through The Lone Tree Council and Tittabawassee River Watch. Highlights of the proposed settlement The work that Dow will be required to complete The technical activities to be carried out under the proposed settlement cover the Tittabawassee River (from just upstream of Dow's Midland plant), Saginaw River and Saginaw Bay. (See section IV of the proposed AOC for the definition of the site.) The technical activities outlined in the statement of work will help EPA and MDEQ achieve their goal of a comprehensive cleanup built upon existing information and the work already completed or under way. More information on EPA and MDEQ expectations with respect to technical activities is in section I of the statement of work. The technical activities for this site fall into three critical categories: Continuing to address high-use properties along the rivers Addressing erosion and movement of highly contaminated soil and sediment Identifying comprehensive cleanup options in an upstream-to-downstream fashion Figure 1 shows an approximate timeline of how work would proceed. High-use properties Activities required to address "high-use" properties along the rivers include gathering and assessing data, developing options to reduce exposures and designing the mitigation measures selected by EPA after an open and transparent public participation process. These activities would begin right away under the proposed settlement and would build on work that is already 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 Enforceable Assumes an enforceable settlement Agreements Addressing High-Use Properties Along the Rivers Completed and TIME-CRITICAL ACTIONS AS APPROPRIATE Evaluation of Cleanup options and ongoing IRAs properties begins activities as needed I I Addressing Movement of Highly Contaminated TIME-CRITICAL ACTIONS AS APPROPRIATE Completed and Evaluation of Cleanup options and Sediments ongoing IRAs sediments begins activities as needed Divide river into 5 to 7 segments Addressing Tittabawassee River Cleanup Segment 1 Options Cleanup Segment 2 Options Cleanup Segment 3 Options Cleanup Development of cleanup options and cleanup activities continue. Addressing Saginaw River & Bay Cleanup Initiation of evaluation will be based on results from any early actions and/or upstream cleanup actions. I I I Figure 1. The proposed timeline for the cleanup. ------- under way. See task 1 in the statement of work for a full detailed description of these activities and exhibit B of the statement of work for the schedule. Contaminated soil and sediment Activities required to address movement of highly contaminated bank soil and sediments include gathering and assessing data, developing options to reduce movement of highly contaminated banks and sediments, and designing the mitigation measures selected by EPA after an open and transparent public participation process. These activities would begin right away under the proposed settlement and would build on work that is already under way. See task 2 in the statement of work for a full detailed description of these activities and exhibit B of the statement of work for the schedule. Comprehensive Cleanup A number of activities outlined in the proposed settlement provide the framework for developing comprehensive cleanup options in an upstream-to- downstream fashion for the Tittabawassee River, Saginaw River and Saginaw Bay. The first of these activities is dividing the river systems and bay into manageable pieces. The plan is to separate the site into two pieces called operable units (OU1 and OU2). The first operable unit would include the Tittabawassee River and the Upper Saginaw River including the 6th Street turning basin. The second operable unit would be the Lower Saginaw River and Saginaw Bay. Each operable unit may then be further divided into smaller pieces called segments. The first segment of the Tittabawassee River has already been defined in the proposed settlement. For more detailed information on how site work is being organized see section IV, task 7.1 and task 12.2 of the statement of work. For OU1, the operable unit that includes the Tittabawassee River and Upper Saginaw River, the primary activities include assessing existing data and gathering additional data as necessary, developing segment-specific cleanup options and designing the option selected by EPA after an open and transparent public participation process, and evaluating the risk remaining after cleanups have been implemented. Activities in this operable unit will build upon the data, investigations, cleanups and other work that have already been completed or are currently under way. The activities for this operable unit would begin right away under the proposed settlement and the first set of segment-specific cleanup options would likely be available to the public within 15-18 months. For more detailed information on the activities required for the first operable unit see tasks 8, 9 and 10 of the statement of work. How to comment EPA will receive all comments and share them with MDEQ. There are several different ways to submit comments on the proposed settlement: Orally, at the Nov. 5 public meeting On the Web, at www.epa.gov/region5/ publiccomment/ Fax to 312-697-2568 E-mail to krause.patricia@epa.gov Mail to: Patricia Krause Superfund Division (SI-7J) U.S. EPA Region 5 77 W. Jackson Blvd. Chicago, IL 60604 All comments must be postmarked or submitted by midnight Nov. 17. For OU2, the operable unit that includes the Lower Saginaw River and Saginaw Bay, the primary activities include gathering and assessing data, evaluating risk, developing cleanup options and designing the option selected by EPA after an open and transparent public participation process. Since it is expected that conditions will change in the Saginaw River and Bay as a result of cleanup activities completed upstream, the activities for this operable unit would not begin right away (other than addressing high-use properties and contaminated banks and sediment, as described above). For more detailed information on the activities required for the second operable unit see tasks 11,12,13,14,15,16 and 17 of the statement of work. How the Superfund process will be used to meet Dow's investigation and clean-up obligations under its RCRA license Many of the activities to be completed under the proposed settlement are expected to fulfill requirements under the RCRA license that was issued to Dow by MDEQ. (RCRA is the Resource Conservation and Recovery Act, the federal law that regulates the identification, transportation, treatment, storage, and disposal of solid and hazardous wastes.) As a part of the proposed settlement, MDEQ, working as a partner with EPA, will review the activities being completed in "real-time" to ensure that the requirements of the license are met. If necessary, MDEQ can require additional work beyond that identified in the AOC to meet the license requirements. As part of the AOC, MDEQ would propose a modification to the license to clarify how the license and the proposed AOC will work together. This modification will go through the state's usual public comment and review procedures. More details on MDEQ review and the proposed license 3 ------- modification can be found in section XI and appendix E of the proposed AOC, respectively. Appendix H of the proposed AOC is a "crosswalk" that describes how work under the AOC corresponds to the requirements of the license. For example, the requirement for Dow to submit a remedial investigation work plan for the Saginaw River, floodplains and bay are addressed under statement of work tasks 11 and 12. EPA and MDEQ also needed to ensure that activities already started under the license do not stop and remain under an enforceable agreement until that activity is fully transitioned into the Superfund process. Exhibit A of the statement of work is a chart that describes ongoing license activities and how those activities will transition into the proposed AOC. For example, flood response activities for "priority 1 and 2" properties and parks along the Tittabawassee River will continue under the license until these activities are covered by an enforceable agreement under the Superfund program. There are defined processes for resolving disputes in the order The proposed settlement provides three distinct dispute resolution processes. These are the processes that EPA, MDEQ and Dow would use to resolve any disagreements under the settlement. The processes are designed to achieve quick resolution of disagreements so activities can continue without significant delay. Depending on the type of disagreement, EPA or MDEQ has primary responsibility to decide how to resolve disagreements. For further details on the dispute resolution processes see sections XVI, XVII and XX of the proposed AOC. Dow can be required to pay monetary fines If EPA determines that Dow is not following the terms of the proposed settlement, the Agency can require the company to pay monetary penalties ranging from $500 to $2,500 per day. Also, EPA can require Dow to pay a $600,000 penalty if the Agency needs to take over any of the work. Further details on penalties can be found in section XVIII of the proposed AOC. Operable Unit 2 OU2 includes the Saginaw River downstream of the 6th Street Turning Basin and all of Saginaw Bay. Midland Bay City BAY CO. Fre'eland SAGINAW CO. MIDLAND CO. 16th Street Turning Basin Operable Unit 1 OU1 starts at the confluence of the Chippewa and Tittabawassee rivers and continues to, and includes, the 6th Street Turning Basin on the Saginaw River. Saginaw Saginaw Bay Dow Midland facility Confluence of Chippewa and Tittabawassee Rivers Figure 2: This map shows the site and the proposed operable units. ------- s I j Comment Sheet i EPA and MDEQ are interested in your comments on the proposed settlement for the Tittabawassee River, Saginaw jj River and Bay site. EPA and MDEQ will consider public comments before deciding if they will sign the AOC as currently i written. Alternatively, EPA and MDEQ may elect to reopen negotiations to address significant public concerns. 8 J Please use the space below to write your comments, then fold and mail this form. Comments must be postmarked or i submitted by Nov. 17, 2009. If you have any questions, please contact Patricia Krause at 312-886-9506. This sheet may [ also be faxed to her at 312-697-2568. Or, submit comments through the Web at www.epa.gov/region5/publiccomment/. I S 8 S I 1 5 8 8 i i i 8 8 s S I 1 1 8 8 i I i I s 8 8 S I 1 1 8 8 i I i I 8 8 8 s I 1 1 8 8 i I i i - 8 8 8 S I 1 I 8 I Name: c, sj 3 Si S o 1 Affiliation: k" 3 I Address: Si S1 Citv: 21 S1 State: ZIP: Si £' i; 4J ------- Detach this page, fold on dashed lines, staple, stamp and mail Name Address City State ZIP Proper Postage Required Patricia Krause Community Involvement Coordinator Superfund Division (SI-7J) U.S. EPA legion 5 77 W Jackson Blvd. Chicago, IL 60604 ------- EPA and MDEQ will be reimbursed for costs Both EPA and MDEQ will be reimbursed for their costs to oversee activities at the site. The agencies will receive an initial sum of money to be used during the first year of the project. After the first year, EPA and MDEQ will bill Dow for their costs. Both EPA and MDEQ have agreed to seek recovery for their past costs at a future date. For further detail on the way EPA and MDEQ will be reimbursed for overseeing the project, see section XX of the proposed AOC. EPA, MDEQ and Dow will retain certain legal rights under the order EPA and MDEQ will give to Dow certain "covenants not to sue," which are basically agreements not to sue the other party under certain circumstances. These covenants are only for the activities completed by Dow under the AOC and are contingent upon Dow complying with the requirements of the AOC. The proposed settlement also outlines the conditions under which EPA and MDEQ will be able to pursue or sue Dow. These are known as "reservations of rights." Because such things as a final remedy and past costs are not a part of this AOC, EPA and MDEQ are not giving Dow a covenant for these matters and are reserving their rights. Additionally, MDEQ is reserving it rights under the RCRA license. Similarly, Dow will give to EPA and MDEQ certain covenants and will reserve certain rights in the proposed settlement. The detailed covenants and reservations of rights are outlined in sections XXI, XXII, XXIII, XIV, XXV and XXVI of the proposed AOC. The community will be able to obtain technical assistance The proposed settlement provides funding for the community to obtain technical assistance. A $50,000 fund will be set up to hire an independent technical advisor to help interpret and comment on documents developed under the proposed settlement. The community will also be able to apply for additional funding once the initial $50,000 is almost spent. Details on technical assistance funding can be found in task 3 of the statement of work. The Natural Resource Trustees will be engaged In Superfund, responsibility for protection of natural resources falls with federal, tribal and state trustees. This is because no one individual "owns" a natural resource; rather, they are held in trust for the public. The Natural Resource Trustees will have opportunities to review and comment on plans, reports and other documents submitted under the proposed settlement. In addition, the proposed settlement does not change the Trustees' Comparing EPA's initial offer to the proposed settlement People comparing EPA's initial settlement offer to Dow to the proposed settlement that was negotiated between the parties will notice how a number of important topics were handled. Some things did not change from EPA's initial settlement offer. Some topics were not in the initial offer and are not in the proposed settlement because they will be considered later, as part of an open and transparent public process. These are items that did not change from EPA's initial settlement offer: The geographic extent of the site (Dow will investigate wherever contamination from the Dow Midland plant has come to be located) The scope of the work (the AOC must cover remedial investigation, feasibility studies and remedial design) Public comment on the AOC prior to signature by the Agencies EPA's right to list the site on the NPL if it chooses to do so The evaluation of contamination on high-use properties along the rivers The evaluation of the movement of highly contaminated sediments A CERCLA order will not terminate Dow's RCRA corrective action obligations These items were not in the initial offer and are not in the proposed settlement: Cleanup options, including sediment disposal locations, cleanup technologies such as dredging, capping, etc., and relocation Cleanup levels These items will be considered later in an open and transparent public process. ability to continue their assessment of natural resource damages or to hold Dow accountable for any damages. Sections V and XXV of the proposed AOC have the details regarding the Natural Resource Trustees. 7 ------- You're invited to a meeting about... EPA's Proposed Settlement For The Tittabawassee River And Saginaw River And Bay Cleanup 7 p.m. Thursday, Nov. 5, 2009 Saginaw Valley State University EPA will present details about the proposed settlement negotiated with The Dow Chemical Co. The proposed settlement lays out a process for evaluating dioxin contamination in the Tittabawassee River, Saginaw River, Saginaw Bay and their floodplains. A question-and-answer session will follow the presentation and then attendees will be able to make oral comments. The meeting will be at Saginaw Valley State University, Curtiss Hall, Banquet Rooms A&B, 7400 Bay Road, Saginaw. jaded pspAoay uo paonpojdaj-j sseoojd dnueaio punpedns JOj lueuieiues posodojd 06SE-170909 II 'o6bo!MQ ¦pAia uos>per M LL (rz-IS) uojSjAjQ punjjeans g uo!6eu AouaBv UOIJOeiOJd IBJU8LUUOJIAU3 S81BIS psiiun Vd3^ ------- |