004268 U .S. EPA j l°• RECORD OF ATTENDANCE

ROSE HILL LANDFILL PRP MEETING JUNE 19, 1989

PRP INVITATION

/Edward L. Frisella 3393 Rose Hill Road Peace Dale, RI 02883

J Vincent Izzo, Town Manager Town of Narragansett 26 Fifth Avenue Narragansett, RI 02882

^Amber Brookman, President Coated Sales 1 Crown Plaza Union Ave. Hazlet, NJ 07730

v Brian Curtis, President Kenyon Industries, Inc. 36 Sherman Avenue Kenyon, RI 02836

j Richard W. Curtis Peacedale Processing Co., Inc. 1425 Kingstown Road Peace Dale, RI 02883

J Stephan A. Alfred, Town Manager Town of South Kingstown Town Hall 66 High Street Wakefield, RI 02879

' David J. Brask 205 O'Neil Boulevard r

Attleboro, MA 02703

J Mr. Jeffrey Jeep Waste Systems, Inc. Waste Management of North America, Inc. 3003 Butterfield Road Oak Brook, IL 60521

Local: Waste Systems, Inc. 580 Edgewater Dr. Wakefield, MA 01880

REPRESENTATIVES

No representation

V. T. Izzo G. Judge M. McSally

No representation

A. M. Connolly 1615 L Street NW Ste. 700 Washington, DC

R. W. Curtis M. C. Kindle

S. A. Alfred A. J. Curnow R. B. Gates

No representation

J. W. Ballentine 580 Edgewater Dr. Wakefield, MA 01880

EPA Officials Present

Richard C. Boynton, Chief RI Superfund Section

David J. Newton Remedial Project Manager-

El issa Tonkin Office of Regional Counsel

William Walsh-Rogalski Office of Regional Counsel

Francisco Leal Office of Regional Counsel

Richard Cyr Responsible Party Coordinator

ORC Interns - 2

State Officials Present

Warren S. Angell, II RI Dept. of Environmental Management

Mark Denon RI Dept. of Environmental Management

Gary Powers Office of RI Attorney General

INTRODUCTION

Statement by

Richard C. Boynton, Chief

Rhode Island Superfund Section

Waste Management Division

Region One U.S. EPA

Good Afternoon. My name is Richard Boynton. I am the Chief of

the RI Superfund Section, Waste Management Division of the U.S.

Environmental Protection Agency, Region I. As such, I am

responsible for supervision of the Superfund programs for sites

in Rhode Island which are proposed for or on the National

Priorities List.

%

On behalf of the U.S. Environmental Protection Agency (EPA), I

would like to thank you for attending this meeting to discuss the

Rose Hill Regional Landfill Site located in South Kingstown, RI.

There are two purposes to this meeting. The first is to provide

you with information about the Site. EPA will describe the

history of the site, and the government efforts to investigate

the environmental hazards associated with the Site.

The second purpose of the meeting is to describe a negotiating

structure for determining responsible party involvement in

implementing remedial site measures and for settling Federal cost

recovery claims. EPA will describe its basis regarding the

extent of the responsibilities and liabilities that have been

incurred by parties who have had involvement with the site in

various capacities.

Now, I'd like to provide introductions. First, I would like to

introduce the other government participants

First, David Newton. Dave is the EPA Remedial Project

Manager for The Rose Hill Site. Dave will manage all

aspects of the investigations and selection of remedial

actions for the Site.

Richard Cyr is the Responsible Party Search Coordinator for

EPA. Some of you may have talked with him in the last

several months as he has coordinated our on-going

Potentially Responsible Party Search.

Ellie Tonkin is the Office of Regional Counsel attorney who

is responsible for legal matters pertaining to the Site.

(Other EPA persons)

From the State of Rhode Island here today are:

Before asking each of you to introduce yourself, let me say that

the information to be discussed here is expressly for potentially

responsible parties at the Rose Hill site. From our sign-in I

believe everyone here is or represents a party receiving a notice

letter and invitation or is a government representative. At this

time I'd like to ask each of you to identify yourself and with

whom you are affiliated.

The purpose of this meeting does not include the discussion of

individual cases. We are here to discuss the general nature of

responsible party involvement at the site. Later this afternoon,

EPA will discuss the structure of negotiations.

I'd now like to move on to the next item on the agenda and turn

the floor over to Dave Newton, the EPA Remedial Project Manager

for the Rose Hill Regional Landfill Site.

DAVID J. NEWTON

STATEMENT ON HISTORY OF

ROSE HILL REGIONAL

LANDFILL PROPOSED SUPERFUND SITE

6/19/89

Good Afternoon, as Dick Boynton has informed you, my name is

David Newton. I am the EPA Regional Project Manager for the ROSE

HILL REGIONAL LANDFILL PROPOSED SUPERFUND SITE. I would like to

first talk for a minute on the history of the site and then

explain the general make-up of Remedial Activities to be

conducted at the site; the Planned Remedial Investigation and

Feasibility Study (RI/FS) .

SITE DESCRIPTION

The Rose Hill Regional Landfill is located within the town of *

South Kingstown, Rhode Island in the village of Peace Dale. The

Site, which is in part owned by the town and in part leased from

a private owner, encompasses approximately 70 acres. The Site is

comprised of three separate, inactive disposal areas, including

the solid waste landfill incorporating approximately 28 acres, a

bulky waste disposal area, and a sewage sludge landfill. An

active transfer station is located on site where refuse is

unloaded from refuse collection trucks and transferred to trucks

which haul the refuse off-site to the Johnston Landfill, a state

owned and operated facility.

The Site is situated on the east side of Rose Hill Road and is

bordered by the road to the west, the Saugatucket River to the

east, and residential private property to the north and south.

Mitchell Brook flows southerly through the center of the site and i

joins the Saugatucket River before leaving the site.

Active sand and gravel operations are located 400 feet north and

200 feet west of the site.

The topography in the area is typical of coastal lowlands in the

northeastern United States, generally flat with gently rolling

hills. Elevations range from 50 to 100 feet above mean sea level

(MSL) with slopes generally less than 3.0 percent.

SITE HISTORY t

The Rose Hill Regional Landfill is located in an abandoned gravel

quarry, and began its operation as a landfill in 1967. The Site

operated under an annually renewable state permit from the Rhode

Island Department of Environmental Management. For approximately

sixteen years, it received domestic and industrial wastes from

residents and industries in the South Kingstown and Narragansett

communities. In October, 1983, the Regional Landfill reached its

state permitted maximum capacity and ceased active landfilling

operations.

This solid waste landfill operated from 1967 until 1982. The

exact depth of excavation where the solid waste landfill exists

is unknown, but was approximately to bedrock in some places.

Refuse was reportedly deposited in areas at, above and below the

water table. The thickness of solid waste deposited throughout

the landfill prior to 1977 is unknown. From 1977 to 1982,

between ten and fourteen feet of solid waste was deposited. Upon

closure, the solid waste landfill was covered with 0.5 to 2 feet

of sandy soil and subsoil.

The sewage sludge disposal area is located in the northeast

section of the site between Mitchell Brook and the Saugatucket

River. This area operated from 1977 to 1983. Its predominant

use was to receive sludge from the South Kingstown wastewater

treatment plant which was deposited in trenches. The depth of

excavation of the trenches is currently unknown. Problems with

the high moisture content of the sludge prompted the town of

South Kingstown to initiate the hauling of the sludge to the

Johnston Landfill. Currently, the sewage sludge landfill is

covered with soil, seeded and graded.

The bulky waste disposal area is an 11 acre area located west of

the solid waste landfill and southwest of the sewage sludge

landfill. This area is approximately 200 feet east of Mitchell

Brook and 250 feet west of the Saugatucket River. Disposal of

bulky waste began in this area in 1978. Solid Waste was also

disposed of in the interim period between closure of the solid

waste area and construction of the transfer station, May 1982

thru October 1983. This area was covered and graded in the same

manner as the solid waste landfill.

In 1975, a hydrogeolgist from the University of Rhode Island, was

commissioned by the town of South Kingstown to provide

hydrogeologic consulting services for a groundwater study at the

Landfill. The study was undertaken to evaluate the landfill as a

potential source of "objectionable" (i.e., mineralized)

groundwater in wells located west of the site on an abutting

property. Three monitoring wells were installed on Rose Hill

Road west of the solid waste landfill for the purpose of

obtaining groundwater table elevations and samples for iron,

manganese, chloride, dissolved solids and hardness analyses. In

total, 4 overburden wells and 1 bedrock well were used in the

study. These five wells are not currently used for monitoring

purposes and the integrity of these wells and their exact

locations are not known. From the results obtained, the study

concluded that the Landfill was "the source of objectionable

groundwater observed in wells on the abutting property." The

excavation of gravel west of Rose Hill Road and just north of the

property was determined to be the primary reason for the

migration of mineralized groundwater in the direction of the

abutter. Subsequent to this study, a new residential well was

installed on the abutting property.

In 1977, to comply with the State of Rhode Island regulations for

solid waste disposal and licensing requirements, the town of

South Kingstown authorized C.E. Maguire, Inc. to conduct a site

analysis and to develop a site operation plan. Seven soil

borings were conducted and five monitoring wells were installed

in May, 1977 to evaluate site suitability for waste disposal.

The wells were installed in the vicinity of the proposed sewage

sludge landfill. The report by C.E. Maguire, Inc. determined

that the site was suitable for sanitary waste disposal with

certain site modifications, one of which was the monitoring of

water quality at four nearby residential wells.

Quarterly monitoring by the town of South Kingstown of private

residential wells near the landfill was begun in 1978 for total

coliform, chemical oxygen demand (COD), chlorides and specific

conductivity. In June 1984, monitoring was expanded to include

volatile organic compounds and metals analysis.

In October, 1979, Rhode Island Department of Environmental

Management (RI DEM) officials reported that analysis of glue

residue disposed of at the solid waste landfill detected the

presence of trichloroethylene (-ethene), toluene, hexane, and

methyl ethyl ketone (2-butanone) in the residue. The exact

quantity of this waste deposited at the landfill is unknown.

During this time, observation of leachate in the vicinity of the

Regional Landfill caused concern among community residents about

the potential effects of the landfill on adjacent groundwater

supplies and the environment.

A preliminary assessment requested by the State and conducted by

the EPA Field Investigation Team (Fit) was documented in August

of 1982. The request stemmed from the closing of one domestic

well in November of that year, due to unacceptable levels of

metals and organics. Re-testing of that well in February of that

same year did not verify the November findings, however the well

remained closed.

In 1983, York Wastewater Consultants were commissioned to conduct

an engineering and hydrogeochemical assessment of the Rose Hill

Regional Landfill for the town of South Kingstown. The report

reviewed existing data as well as new data from surface water

sampling of Mitchell Brook and the Saugatucket River and

groundwater sampling of private residences. Surface water

samples were analyzed for COD, biochemical oxygen demand (BOD),

iron, conductivity, nitrogen, phosphate and total nitrogen. *

Groundwater samples were collected from the nearby residences and

analyzed for volatile organic and inorganic compounds. No

volatile organic compounds were reported above the detection

limits.

The report by the York Wastewater Consultants concluded that

groundwater on site and surface water in the vicinity of Regional

Landfill had been impacted by leachate generated from the

landfill. While the report noted that private drinking water

supplies did not appear to be adversely impacted, continued

monitoring of these wells was recommended as a precautionary

measure. The report also recommended continued sampling and

analysis of the surface waters of Mitchell Brook and Saugatucket

River to monitor effects of leachate on those waters. The

extension of the water main to residents in the vicinity of the

landfill was also recommended. This action has subsequently been

undertaken by the South Kingstown Utilities Department.

On September 25, 1984, NUS Corporation Field Investigation Team

(FIT) was tasked by the Superfund Branch of the EPA to perform a

Site Inspection (SI) of the Rose Hill Regional Landfill. This

was initiated after the Preliminary Assessment (1983) recommended

that further investigative measures were necessary to more fully

assess the severity and potential impacts occurring from the

site.

Results from the SI indicated the presence of organic

contaminants in groundwater generally along the northern and

western perimeters of the site. Contaminants identified were

trans-1,2 dichloroethylene, tetrachloroethylene, trichloroethene,

toluene, benzene, xylenes and ethylbenzene ranging from 5 to 100

parts per billion (ppb). Two phthalate esters were also detected

in residential wells at 20 ppb. The final Site Inspection Report

was submitted to EPA on September 25, 1984.

A Final Hazardous Ranking System (HRS) Report was validated on

October 14, 1987. The HRS score for the Site was established at

38.11, and as such, the Site was proposed on the National

Priorities List update #7 on 6/24/88. The Site remains proposed

on the National Priorities List (NPL) List at this time.

A phased Expanded Site Investigation (ESI) was conducted to i

fulfill certain date gaps identified in earlier investigations.

A Final Report was submitted to EPA on January 27, 1989.

The tasks conducted for the Rose Hill Regional Landfill ESI were

specifically aimed at filling certain data gaps identified during

earlier investigations.

Conclusions reached from this investigation are as follows:

1) Volatile organic compounds such as methylene chloride,

trichloroethene, tetrachloroethane, 1,1-dichloroethane,

chloroform and trichlorofluoromethane have %

intermittently been detected in groundwater samples

from a residential well. Some of these same compounds

have been detected in groundwater collected at the

Site. No inorganic contaminants were detected.

2) Photolineament and Fracture Trace Analysis results

indicate that there are major fracture sets located in

the bedrock in the vicinity of the Site. These

fracture sets represent potential pathways of

groundwater flow. Fractures and lineaments interpreted

to be underlying the site indicates a probable area of

contaminant migration in the bedrock aquifer. However,

flow direction in the bedrock aquifer cannot be

determined strictly by fracture and lineament

Analyses.

3) Limited soil sample screening on the Site tentatively

identified volatile organic compound(s) and polychlor­

inated biphenyls (PCBS). However, due to analytical

problems, the data was rejected. Field monitoring of

the air during the reconnaissance exhibited 11 to 12

parts per million (ppm) total organic concentrations

with a photoionization detector.

4) Leachate sampling identified the presence of eight

volatile organic compounds at a total concentration of

2,625 ppb from the eastern and southern parameters of

the solid waste landfill and from an area east of the

bulky waste disposal area. These contaminants are

consistent with those detected in groundwater samples

over a 4.5 year monitoring period.

5) Results from the surface water and sediment sampling

indicate the presence of polynuclear and polycyclic

aromatic compounds.

6) Stream gauging indicated that groundwater flow from the

site contributes to the Saugatucket River. Therefore,

it is possible for a portion of the contaminant plume

to discharge to the river. However, there is not

sufficient information to characterize whether a

portion of the contaminant plume may have migrated or

is presently migrating under the river and off-site.

This scenario therefore cannot be discounted.

At a minimum, due to the fact that hazardous substances were

deposited at the Site, that media sampling indicates that

contaminants emanating from the Site have periodically impacted

residential wells and may continue to impact surface waters and

groundwater, and that current Site conditions may constitute a

significant risk to human health or the environment, EPA will

conduct an RI/FS at the Rose Hill Site.

STATEMENT REGARDING

PLANNED RI/FS - ROSE HILL

The primary objective of the Remedial Investigation and

Feasibility Study (RI/FS) is to provide the supporting data,

analyses, and conclusions necessary to select a remedy for the

Site. The remedy selected must be consistent with The National

Contingency Plan and the Comprehensive Environmental Response,

Compensation and Liability Act (CERCLA) of 1980 as amended by

SARA. The RI/FS will be conducted as integrated, phased studies.

The primary objectives of the Remedial Investigation (RI)

are to:

1.) define sources, nature, extent, and distribution of *

contaminants released;

2.) determine and quantify any and all potential exposure

pathways;

3.) assess the risks to the public health and the

environment;

4.) provide sufficient information to select a remedy,

establish a record of decision, and design remedial

actions.

The primary objectives of the Feasibility Study (FS) are to:

1.) Review the applicability of various remedial

technologies, including innovative ones to determine

whether they are appropriate for the Site;

2.) determine if each alternative developed by combining

technologies is appropriate by evaluating in the short

and long term whether it is ­

a) effective;

b) implementable;

c) cost effective;

3.) evaluate each alternative or combination of

alternatives through a detailed analysis of

alternatives;

4.) provide direction to the Remedial Investigation portion

to ensure that sufficient data of the appropriate type

is gathered to select a remedy.

The concept of an integrated, phased RI/FS is outlined in much

detail in the Office of Emergency and Remedial Response Document

entitled Guidance for Conducting Remedial Investigations and

Feasibility Studies Under CERCLA. October 1988 (Oswer Directive

#9355.3-01; hereafter referred to as the RI/FS Guidance).

There are a number of basic tasks to be performed to accomplish

the goals and objectives of the RI/FS. A more detailed and site

specific description of these steps is presented in a Statement

of Work Document that is being prepared and will be distributed

to you as negotiations progress.

These tasks are:

1) Scoping

2) Community Relations

3) Site Characterization

4) Base Line Risk Assessment

5) Treatability Studies

6) Development and Screening of Alternatives

7) Detailed Analysis of Remedial Alternatives

The first step in a Remedial Investigation and Feasibility Study

is to Scope the RI/FS. This will ensure that the performing

party understands the objectives and procedures of the RI/FS and

that several plans essential to that understanding be prepared

prior to the beginning of field activities. Review and comment

on deliverables will be conducted during the course of the RI/FS

by the State, EPA support personnel and an EPA Oversight

Contractor. All Deliverables will be considered DRAFT until an

approval of the Deliverable is given. Approvals of all

Deliverables will be from EPA.

At a minimum, these plans include:

1) Site Characterization Work Plan (RI work plan)

2) Sampling and Analysis Plan (Project Operations Plan)

3) Health and Safety Plan

4) Community Relations Plan

The Site Characterization Work Plan has five elements:

Introduction, Site Background and Physical Setting, Initial

Evaluation of Site Conditions, Work Plan Rationale, and Specific

RI/FS Tasks. Included in the Site Characterization Work Plan are i

plans describing Wetland and Flood Plain Assessments and a Base

Line Risk Assessment. In addition, an expanded schedule for

RI/FS Activities will be presented.

Although the development and implementation of Community

Relations Activities are the responsibility of EPA, the

Respondent may assist EPA by providing information regarding site

history, participating in public meetings or preparing fact

sheets. The Respondent's responsibilities, if any, will be

specified in the Community Relations Plan.

The Sampling and Analysis Plan has two parts; a Quality Assurance

Project Plan that describes the policy, organization, functional

activities and quality assurance and quality control protocols

necessary to achieve data quality objectives, and a Field

Sampling Plan which details the procedures of all field work.

The Health and Safety Plan supports the field effort by defining,

for each task, the level of safety and protection required. It

must be written such that it complies with OSHA and is a stand

alone document which can be swiftly referred to in the event of

an onsite emergency as well as during normal site operations.

The plans will be reviewed, revised as required, and approved by

the Agency prior to the commencement of any field activity.

Following the approval of these plans, the EPA will give notice

that the next step is to begin. This step is to perform the Site

Characterization. The goal of the Site Characterization is to

collect all field data that can be assumed to be necessary for

the RI/FS. The Site Characterization will be composed of one or

more separate field investigations. The first of these field

investigations will be considered Phase I of the project.

Interim Deliverables may be required by EPA at any time during

the course of the RI/FS process, however it will be expected

that, at a minimum, the following deliverable documents will be

developed as a result of the Phase I work.

o A Site Characterization Report

o A Base Line Risk Assessment *

o Development and Initial Screening of Alternatives Report

o Phase II Work Plan and Amended Schedule (as required)

o Detailed Analysis of Alternatives Work Plan (FS work

plan)

These deliverables will be subject to review and may require

possible revisions to meet with EPA approval.

A second phase of field work may be required by EPA in order to

fill identified data gaps and provide information necessary to

perform a detailed analysis of alternatives. These

investigations may include additional field studies, pilot or

bench scale studies of potential technologies, and literature

searches. Deliverables will be based on the scope of work

proposed for Phase II.

Further field investigations shall be planned to collect

information needed to fill data gaps unless the EPA determines

the current information base is sufficient to select a remedy.

At any time, if the need for data becomes relevant to the

selection of a remedy, the EPA will require further work to meet

that need.

The deliverable received by EPA at the conclusion of the field

work is a first draft of the Remedial Investigation/Feasibility

Report, which will be subject to EPA review and comment.

The final step involves the preparation of subsequent drafts of

the RI/FS until a final draft RI/FS is accepted by EPA for public

comment, a Responsiveness Summary is developed and a Record of

Decision is signed.

The RI/FS as outlined in the RI/FS Guidance and presented here is

designed to provide the information and analyses required to

select a remedy consistent with CERCLA as amended by SARA and the

National Contingency Plan (NCP). Changes to the described

process may occur due to unexpected site conditions or special

study requirements to support proposed remedial actions.

IV. GOVERNMENT OVERSIGHT OP A PRIVATE PARTY REMEDIAL INVESTIGATION AND FEASIBILITY STUDY

Statement by Richard C. Boynton, Chief RI Superfund Section

Waste Management Division Region I, U.S. EPA

Good Afternoon. I am Richard Boynton, Chief of The RI Superfund

Section within the Waste Management Division at Region I EPA.

The RI Superfund Section is responsible for investigation,

remediation, and enforcement activities associated with hazardous

waste sites, including The Rose Hill Site, which are on or

proposed for the National Priority List in the State of RI. I am

speaking this afternoon regarding government oversight of the

remedial investigation and feasibility study should you choose to

conduct this work at The Rose Hill Site.

t

In EPA letters to potentially responsible parties, EPA indicated

that the Agency is seeking a commitment by responsible parties to

conduct the remedial investigation and feasibility study for The

Rose Hill Site and to reimburse the government for its costs in

overseeing the remedial investigation and feasibility study.

Today, I would like to explain further, the nature of this offer

and to share with you some of the general aspects of government

oversight which you can anticipate should you agree to conduct

the remedial investigation and feasibility study.

It is presently EPA's policy to allow qualified potentially

responsible parties to conduct a remedial investigation and

feasibility study under EPA oversight if EPA determines that the

studies will be done properly and promptly by potentially

responsible parties and that the government will be reimbursed

for its costs. Regarding the Rose Hill Site, we welcome

discussions with you, during the special notice moratorium

period, that will lead to reimbursement of the government for

past response costs and at giving the government the assurance it

needs to make the determination that you can do the remedial

investigation and feasibility study properly and promptly with

government oversight and direction.

In March 1984, EPA initiated a policy to allow private parties to

conduct remedial investigations and feasibility studies at

Superfund sites. Since that time, agreements between Region I

EPA and potentially responsible parties have been developed for a

number of New England Superfund sites allowing private parties to

conduct remedial investigation and feasibility studies. In each

case, government oversight has been a fundamental part of the

remedial investigation and feasibility study process to ensure

the provisions of Superfund, the National Contingency Plan, State

Law and government policies are fulfilled.

In 1986, the Superfund Amendments and Reauthorization Act, or

SARA, established an EPA requirement for qualified third party

oversight to assist the government in overseeing and reviewing

the conduct of any private party remedial investigation and

feasibility study. This provision and the condition that the

potentially responsible parties reimburse the government for this

oversight are found in Section 104(a)(1) of the amended

Superfund. This provision makes EPA's oversight policy a

statuatory requirement.

Since government oversight has significant implications on

potentially responsible parties, let me share with you some of

the implications of government oversight that you should expect

should you agree to conduct the remedial investigation and

feasibility study.

First, there is the cost of government reviews and the need for

work not necessarily envisioned at the onset of the remedial

investigation. The RI/FS will be conducted in a phased manner.

There will be a number of work products or deliverables at

various stages during the process to allow for government review

and direction. We have tried to envision these stages to the

degree possible, however the party conducting the RI/FS must be

prepared to make any revisions to work products and perform any

additional field work and analyses deemed necessary by the

government at any time during the RI/FS proces..

Schedules for work and for revisions of work products will be

established in the EPA/PRP agreement and these schedules will be

enforced consistent with the penalty provisions that will be

included in any EPA/PRP agreement.

Reviews will involve periodic meetings with the government and

incorporation of comments to the government's satisfaction. EPA

reserves the discretion to redo work or rewrite a deliverable at

any time as part of oversight activities. However, if we see

poor performance of the work as an unresolvable problem at any

time during the process we do not intend to continue, and the

RI/FS, in total or in part, may be converted to a government

conducted study funded by the Superfund. Under this situation

the funds expended will be subject to cost recovery by the

government.

A second implication of government oversight is that potentially

responsible parties will be reimbursing the government for the

costs for field oversight. Should we come to an agreement for

you to conduct the remedial investigation and feasibility study,

EPA's current intention is to hire a qualified contractor to

provide the third party oversight required by Section 104 of the

amended Superfund. This oversight includes, but is not limited

to, field oversight. You should expect a continual presence of

government representatives on the site during field activities.

A third component of government oversight deals with parallel

sampling for laboratory analyses. For quality assurance and

enforcement purposes, we will be performing a number of

laboratory analyses parallel to your efforts. These include

analyses of duplicate, replicate, and split samples. The number

of parallel samples and analyses will vary with the sampling

medium, procedure, and sampling objectives as well as other

factors. To give you an idea of this level of effort, for

private party Superfund activities at some other sites in Region

I, the number of parallel samples taken typically have ranged

from 10% to 50% of the number of samples taken by the private

party's contractor.

Fourth and finally, an essential component of the remedial

investigation and feasibility study is the documentation and

maintenance of comprehensive plans, objectives, and procedures

for tasks performed during the RI/FS. The government's review

and input into these objectives, procedures and plans is an

important element of RI/FS planning and oversight. Plans include

technical work plans, statements of objectives, a quality

assurance project plan to meet site specific data quality

objectives, a site sampling and analysis plan, a site health and

safety plan, and a plan for private parties to take full

responsibility for proper manifesting and disposal of hazardous

wastes generated during study activities.

In summary, the reason for this presentation is because EPA

believes that these oversight items are essential to ensuring

that the mandates of Superfund, The National Contingency Plan,

Sate Law, and government policy will be achieved by potentially

responsible parties should you perform the RI/FS at The Rose Hill

Site. These oversight items and the implications of oversight

are costly, and these costs will be borne by you in addition to

the funds that you spend on the remedial investigation and

feasibility study. Therefore the message I wish to leave with

you is this. We encourage a serious offer to conduct the Rose

Hill remedial investigation and feasibility study with government

oversight and direction based on the terms of an enforceable

agreement and a technical statement of work prepared by the

government. However, in your analysis of whether performance of

the remedial investigation and feasibility study is advantageous

to you, be sure to incorporate in your calculations the resources

you will be expending associated with government oversight.

Now, Ellie Tonkin will continue the meeting with a presentation

on the Superfund Enforcement Process and the Responsibility of

Parties identified by EPA.

ROSE HILL LANDFILL SITE MEETING June 19, 1989

Statement by Elissa Tonkin

Good afternoon everyone. My name is

Elissa Tonkin and I am an attorney with the

Environmental Protection Agency, Region I,

Office of Regional Counsel. I am going to

talk about the enforcement side of this case.

First, I will try to give you some general

background about liability under the

Comprehensive Environmental Response,

Compensation and Liability Act (CERCLA),

popularly known as the Superfund Act. Then I

will talk about the enforcement proceedings

relating to the Rose Hill Site. Specifically,

I will explain the structure and timeframe

within which settlement negotiations may take

place toward the end of PRP involvement in

response activities at the Site. After that,

we will entertain questions about the

substance of any of the presentations you have

heard today. I would like to emphasize that

we will not entertain questions about the

specific circumstances of individual

responsible parties or the liability of

individual parties. As will be explained

Oilier:

2

later, all negotiations from this point on

will be conducted through a negotiating

committee. I also want to stress that, even

though an important part of today's agenda is

a discussion of the circumstances under which

we will negotiate, we do not view this meeting

as a negotiation session, but rather as an

opportunity for us to give you information

about remedial and enforcement activities

relating to the Site'. In addition, this

meeting is an opportunity for those of you who

are interested in pursuing a settlement to

coalesce as a group. To that end, we have

made arrangements for you have the use of this

room for the rest of the afternoon after we

are finished here.

Now let me get back to the topic that I'm

here to talk about, the Superfund law. To

begin with, let me define this term

"responsible parties" which you have heard

used so many times today. Section 107 of

(CERCLA), defines four classes of parties who

are liable for costs associated with the

releases on sites which are covered by the

statute. As applied to the Rose Hill Site,

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these statutory classes of responsible parties

translate into the following groups:

(1) The present owner or

owners of the property;

(2) All persons who owned

or operated the Site at a time when

disposal of hazardous substances

occurred;

(3) All persons who arranged

for disposal or treatment

of hazardous substances at

the Site; and

(4) All persons who accepted

hazardous substances for

transport to the Site.

I should note that the term person is

broadly defined under the statute to include

any individual, corporation, partnership, any

other business entity, municipality or

political subdivision of a State.

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Any party who EPA has reliable reason to

believe falls into one of these four

categories is designated a potentially

responsible party ("PRP").

Now I'd like to discuss two key legal

concepts which define the nature of the

responsible parties' liability under CERCLA.

These concepts are strict liability and joint

and several liability.

Strict liability: This means that

Congress has imposed liability without regard

to the fault or negligence or culpability of a

responsible party. Thus, although a party may

have acted with the highest standard of care, *

if that party falls within the statutory

definition of a responsible party, liability

will be imposed without regard to any "good

faith" defense the party may raise.

Joint and several liability: This means

that where damages or harm at a superfund site

cannot reasonably be allocated to a particular

responsible party, the total liability shall

be treated as the legal responsibility of each

and every responsible party. In other words,

EPA could satisfy any judgment obtained

against any one party shown to be jointly and

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severally liable for the full amount of the

damages that could not be allocated. The

doctrine of joint and several liability is

typically applicable at sites like Rose Hill

which involve landfills because the

contamination has run together and is usually

impossible to allocate.

In a settlement context, the existence of

joint and several liability shifts the burden

of allocating responsibility for the hazards

and cleanup costs from the government to the

PRPs. Joint and several liability thus places

upon the responsible parties the burden of

paying the entire costs and apportioning the

costs among themselves.

This brings me to the last topic of

today's meeting: PRP involvement in site

response activities. As Dave mentioned

earlier, we are preparing to perform the

Remedial Investigation and Feasibility Study

(RI/FS). The objectives and nature of the

RI/FS have already been discussed. At the

conclusion of this process, EPA, in

consultation with the State of Rhode Island,

will issue a Record of Decision (ROD)

identifying the appropriate remedial response

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for the Site. The ROD sets the stage for

implementation of the selected remedial action

and any attendant operation and maintenenace.

In sum, EPA's projected activities at the

Site include performance of an RI/FS, issuance

of a ROD, and implementation of the Remedial

Design and Remedial Action, including

operation and maintenance activities.

Section 104(a) of CERCLA authorizes EPA

to conduct response activities at a facility.

It also states that whenever EPA determines

that such activities will be done properly and

promptly by a responsible party or parties, it

may allow the responsible parties to carry out

the action. Section 104 specifies that no PRP

RI/FS shall be authorized except on a

determination that the party is qualified to

conduct the study and with an agreement that

the PRP reimburse the Fund for all oversight

costs incurred by the Agency.

One of our key objectives, at this point,

is to determine whether any PRPs are

interested in undertaking the RI/FS at the

Site. To the extent that the PRPs are

unwilling, unable or unqualified to undertake

the RI/FS, the government will conduct an

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RI/FS using Superfund money and will later

seek reimbursement from the PRPs. At the

conclusion of the RI/FS and after the issuance

of a ROD, EPA will meet again with the PRPs to

determine whether any parties are willing to

undertake the Remedial Design and Remedial

Action called for in the ROD. Once again, to

the extent that parties are unwilling, unable

or unqualified to implement RD/RA activities,

the government will perform the remedy with

Superfund money and later seek reimbursement

from the PRPs.

Now 1*11 take a minute to explain how and

when an agreement involving a PRP performance

of the RI/FS could come about. Whenever EPA

determines that a period of negotiation would

facilitate an agreement with PRPs for the

performance of response activities and would

expedite the cleanup of a site, the agency

invokes the so-called Special Notice

Moratorium described in Section 122(e) of

CERCLA. For purposes of this Site, issuing

Special Notice means that EPA would send each

of the PRPs a letter by certified mail

inviting them to commit to undertaking or

financing the RI/FS and covering the past

8

response costs incurred and future oversight

costs to be incurred at the Site by the

government. The PRPs would then have 60 days

from the date of their receipt of Special

Notice in which to submit to the government a

good faith offer. The Special Notice letter

will define more preciseley what is meant by a

good faith offer. If no good faith offer is

received within this sixty day-period,

negotiations will be terminated and the Agency

will commence an RI/FS with Superfund money.

If a good faith offer is received by the

government within the sixty day period,

negotiations will, if necessary, be extended Y

for an additional thirty days. If at the end

of this period an agreement on recovery of

past costs and implementation of an RI/FS has

not been signed by all participating parties,

the government will commence its own RI/FS.

Thus, the critical focus of any negotiations

into which we may now enter will be to reach

an agreement in which the PRPs commit to

reimbursing past response costs, implementing

an RI/FS and paying related oversight costs.

I would like to take a minute now to

discuss one issue relating to the use of

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Special Notice in this case. As a natter of

course, EPA issues Special Notice at this pre-

RI/FS stage of its involvement at a site. In

some instances, however, it is not appropriate

to use the Special Notice procedures. Such

circumstances include:

1. where past dealings with the PRPs

strongly indicate that they are

unlikely to negotiate a settlement;

2. where EPA believes the PRPs have not

been negotiating in good faith;

3. where no PRPs have been identified

at the end of the PRP search;

4. where the PRPs lack the resources to

conduct response activities;

5. where there are ongoing

negotiations; and

6. where notice letters had been sent

prior to the passage of SARA and

ongoing negotiations would not

benefit by the issuance of Special

Notice.

Of those I have listed, the only

situation which mighty apply here is the

first: where past dealings indicate that the

PRPs are unlikely to negotiate a settlement.

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Several PRPs have already indicated to us that

they, in fact, are not interested in pursuing

an RI/FS settlement such as I have described.

In this case, we intend to issue Special

Notice this summer unless all of the

designated PRPs clearly indicate to us that

they are not interested in negotiating such

a settlement. In order to satisfy ourselves

that it makes sense to issue special notice in

this case, however, we ask that all Rose Hill

PRPs advise us in writing, within ten days of

today's meeting, of whether they are

interested in pursuing negotiations. Those

letters should be addressed to Dave Newton, %

the same person to whom you directed your

responses to previous correspondence in this

case.

Now, let me place this invitation to you

to perform the RI/FS in context. It is EPA's

job to enforce the law requiring the

responsible parties to bear all costs incurred

in the process of cleaning up this site. To

do this, we have two options. Bring a law

suit or settle. I have just outlined the

general sequence of events through which the

settlement option may become realized at this

11

stage of the case. As far as the government

is concerned, a settlement with terms that are

acceptable to us would be preferable to

litigation because it would be faster, more

cost-effective, and less aggravating, and it

would enable us to move on to the many other

high-priority problem sites in the Region. Our

primary concern is that the site response

activities from the remedial investigation

through the implementation of the remedial

action called for in the ROD be satisfactorily

completed and that the Superfund expenditures

associated with accomplishing this cleanup be

reimbursed.

If any parties are interested' in pursuing

a settlement involving a PRP RI/FS, they

should organize themselves into a group

represented by a smaller group of

spokespeople. As I indicated earlier, we will

not negotiate with individual responsible

parties. We have learned through past

experience that the negotiating committee

approach to settlement negotiations works well

to facilitate communications and expedite an

agreement. More importantly, we will not

permit any individual negotiations to

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undermine the process of achieving a

comprehensive group agreement. We are looking

for one settlement agreement.

Id like to say a little more about the

make-up of your negotiating committee. Once

you have formed a group including every PRP

who wants to negotiate, we urge you to put

together a smaller negotiating committee that

is as representative of the larger group as

possible. Even though every PRP believes its

circumstances are unique and, to some degree,

everyone's circumstances are in fact unique,

there are certain significant characteristics

which distinguish some members of the group *

from others. To the extent possible, all

"general categories" of PRPs should be

represented on the smaller negotiating

committee. For example, generators and

transporters as well as owners and operators

should be represented; private as well as

public entities should be represented on this

committee. This smaller negotiating committee

will then sit down with the government and

communicate the larger group's wishes to us

and will also communicate back to the larger

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group the substance of what occurs in the

negotiation sessions with the government.

To sun up what happens after today:

first, we hope to hear by letter from each of

you as to whether you are interested in

pursuing negotiations; second, if you are

able to form a negotiating committee, a

spokesperson for that committee should

promptly contact me at the Office of Regional

Counsel at (617) 565-3450.

At this point, we'll try to answer any

questions you have about the substance of

these presentations and then leave you to talk

among yourselves if you wish.