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EPA Response to 10_9_2024 CCC LetterFrom:Balliew, Carolina To:Mayre Flowers Cc:Michael.freeman@mt.gov; governor@mt.gov; Becker, KC; Jenkins, Katherine; John Muhlfeld; Michelle Howke; Mark Johnson; Kalispell Meetings Public Comment; Brad.Abell@flathead.mt.gov; Randy Brodehl; Pam.Holmquist@flathead.mt.gov; cocontactus@flathead.mt.gov; rich.janssen@cskt.org; info@cskt.org; Chelsea Colwyn; Chauncey Means; Nylund, Erik (Tester); Chad_Campbell@tester.senate.gov; Devlin, Katie (Daines); Dick Sloan; jrankosky@flathead.mt.gov; Tom.bansak@umontana.edu; jim.elser@flbs.umt.edu; Mike Koopal; casey.lewis@mt.gov; samantha@flatheadcd.org; staalandb@cityofcolumbiafalls.com; Dorrington, Matthew; Barnicoat, Dana; Castelli, Kayleen (she/her/hers); Wright, Paige; Stone, Kevin; Nowakowski, Sonja; Martin, Douglas; Hausrath, Katherine; Morgan, Jonathan; Del Phipps; Shirley Folkwein; Phillip Matson; Peter Metcalf; Laura Damon; Garcin-Forba, Katherine; Miller, Jamie (she/her/hers) Subject:EXTERNAL EPA Response to 10/9/2024 CCC Letter Date:Tuesday, November 26, 2024 9:31:44 AM Attachments:Final EPA response 10.9.2024 CCC letter.pdfRole of Cost in Superfund Remedy Selection Process.pdf10-9-2024 Coalition for a Clean CFAC Ltr to Governor final.pdfCoalition for a Clean CFAC Press Release Re conclusions of Deep Dive Aug 20-21, 2024.pdf [NOTICE: This message includes an attachment -- DO NOT CLICK on links or open attachments unless you know the content is safe.] Mary, Please see the attached EPA response to the 10/9/2024 Coalition for a Clean CFAC’s letter. Within our response is Attachment 1 which provides detailed responses for both CCC’s recent letter and the August press release (included for reference). Also, I’ve attached a Fact Sheet on The Role of Cost in the Superfund Remedy Process that provides helpful information. As always, I encourage CCC to continue to coordinate with the EPA Site team: Matt Dorrington, Remedial Project Manager, dorrington.matthew@epa.gov and Dana Barnicoat, Community Involvement Coordinator, barnicoat.dana@epa.gov for additional meetings and discussion. Thanks. Hope you have a Happy Thanksgiving! Carolina Balliew Remedial Section C Supervisor Superfund and Emergency Management Division U.S. EPA Region 8 | Helena, MT Office: (406) 457-5039 Work Cell: (406) 916-1872 Ref: 10/9/2024 Coalition for Clean CFAC letter Ms. Mayre Flowers, et. al. Coalition for a Clean CFAC PO Box 2198 Kalispell, Montana 59903 Dear Ms. Flowers: The U.S. Environmental Protection Agency received a copy of your October 9, 2024, letter addressed to Governor Gianforte and other elected officials on behalf of the Coalition for a Clean CFAC (CCC). We thank you for reaching out with your concerns regarding the Proposed Plan for the Anaconda Aluminum Co. Columbia Falls Reduction Plant Superfund Site (Site) commonly known as the Columbia Falls Aluminum Company (CFAC) site. The EPA shares the goal of cleaning up the Site effectively and efficiently, and we want to ensure we have taken steps to increase awareness and acceptance within the community, which includes affected Tribal communities, and hear their questions and feedback. Community involvement creates better outcomes in the Superfund process, and the EPA values CCC’s participation. We look forward to ongoing and continued dialogue and collaboration throughout the remaining phases of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) process. We are pleased to see that the Technical Assistance Services for Communities (TASC) grant and technical advisor have proven beneficial in the CCC’s efforts to digest and translate the highly technical work completed at the Site over the last 8+ years. We are also thankful to you and the CCC for your support in helping plan additional public engagements over the spring and summer. Your involvement and input have led to increased public engagement, and we are appreciative of all your efforts. The series of three, monthly “Deep Dive” meetings, from August to October 2024, coordinated by the CCC, were an excellent example of community involvement in practice. As we approach issuance of a Record of Decision (ROD) for the Site, we want to emphasize that a ROD is step 5 in the 9-step Superfund process. A ROD provides an overview of site history, enforcement actions, community participation, site characteristics, land use, human health and ecological risks, and cleanup objectives. It describes what cleanup alternatives were evaluated and the results of the evaluation. Finally, it outlines the Selected Remedy for cleanup and how the cleanup meets statutory requirements. After a ROD is issued, the EPA engages in negotiations with the potentially responsible party and works towards entering a Consent Decree (CD) to implement the selected remedy at the Site. The public has an opportunity to comment on the future CD before it is executed by a court. After the CD is finalized, remedial design begins under comprehensive EPA and Montana Department of Environmental Quality oversight and could take many years to complete. If information received during remedial design shows that the remedy cannot be designed and implemented according to the ROD, the CERCLA process allows the EPA to make changes to the ROD accordingly to ensure a remedy that is protective of human health and the environment. Following remedial design, remedial action will start the cleanup process, and construction will last roughly two years. The EPA will conduct community engagement throughout remedial design and remedial action, so we can continue to inform community members and stakeholders of Site progress and expectations of next steps and be responsive to questions and concerns throughout the Superfund process. In closing, the EPA thanks CCC for the dialogue regarding the Site, and we agree that community involvement creates better outcomes in the Superfund process. We have carefully reviewed your August 20, 2024, press release and October 9, 2024, letter and offer clarifying information about the Site and the Superfund process as an attachment (Attachment 1). We are confident in the science that underlies the preferred alternative in the Site Proposed Plan. I encourage CCC to continue to coordinate with the EPA Site team: Matt Dorrington, Remedial Project Manager, dorrington.matthew@epa.gov; Dana Barnicoat, Community Involvement Coordinator, barnicoat.dana@epa.gov; Kayleen Castelli, Site Attorney, castelli.kayleen@epa.gov; and Paige Wright, Site Attorney, wright.paige@epa.gov. The Site team is available for additional meetings and discussion. Sincerely, Carolina Balliew Section C Supervisor Remedial Branch Enclosure: 1. EPA responses to August 20, 2024, press release and October 9, 2024, letter cc: EPA Site Team Matt Dorrington, Region 8 Dana Barnicoat, Region 8 Kayleen Castelli, Region 8 Paige Wright, Region 8 CCC Board Shirley Folkwein Phil Matson Del Phipps Laura Damon Peter Metcalf U.S. Senator Jon Tester U.S. Senator Steve Daines U. S. Representative Ryan Zinke Governor of Montana Greg Gianforte Columbia Falls City Council, Mayor Don Barnhart Flathead County Commissioners: Brad Abell, Randy Brodehl, and Pam Holmquist Doug Martin and Katherine Hausrath, Montana Natural Resource Damage Program Sonja Nowakowski, Montana Department of Environmental Quality Director Attachment 1 EPA Detailed Responses to October 9, 2024, CCC Letter After careful review of the Coalition for a Clean CFAC (CCC) October 9, 2024, letter, the U.S. Environmental Protection Agency offers clarifying information about the Anaconda Aluminum Co. Columbia Falls Reduction Plant Superfund site (also known as the Columbia Falls Aluminum Company or CFAC site) (Site) and the Superfund process below. 1. Slurry walls are a proven technology implemented at many Superfund sites. CCC states that a slurry wall “is one of the least permanent and most risky containment methods” and “the cheapest option for containment.” Slurry walls have been constructed worldwide since the 1950s. Famously, slurry walls were used to construct the retaining walls at the World Trade Center in the mid- 1960s. Those slurry walls, despite being damaged by the terrorist attacks of September 11, 2001, held and prevented catastrophic flooding of lower Manhattan and its subway system. CERCLA was enacted in 1980, and installation of slurry walls at Superfund sites began shortly thereafter. We now have over 40 years of monitoring data to assess the performance of slurry walls at hazardous waste sites. A 1998 study conducted by the EPA on engineered barriers, including slurry walls, entitled “Evaluation of Subsurface Engineered Barriers at Waste Sites,” concluded that slurry walls are a valuable tool for containment of hazardous waste releases. A 2022 peer-reviewed technical paper published by the American Society of Civil Engineers (Ryan et al 2022) reviewed the soil bentonite (SB) slurry trench cutoff wall technology and noted the following: There are no documented cases where SB cutoff walls have failed over time, but published studies defend the long-term efficacy. For example, an early 1980’s project included a 4 km long SB wall surrounding a solid waste landfill built in a former sand and gravel quarry in eastern Baltimore County Maryland. Monitoring wells outside of the SB wall revealed such low levels of contamination that the site was classified by the USEPA as “No Further Remedial Action Planned” (Maryland Department of the Environment, 1992). The concerns over slurry wall efficacy highlighted by CCC as extracted from the cited June 2022 memorandum are why the EPA modified Alternative 4 from the feasibility study (FS) and included treatment of groundwater extracted from the interior of the slurry wall in the Preferred Alternative. It should be noted that the example that CDM Smith referenced, a slurry wall at a Superfund site in Washington, was constructed in glacial till, which presents a significantly higher level of technical difficulties than the glacial outwash and alluvium environment at the Site. 2. The role of cost in the Superfund remedy selection process. CCC believes that the EPA placed a greater emphasis on the consideration of cost over other the other criteria required under the National Contingency Plan (see 40 CFR 300.430(e)(9)) in selecting the Preferred Alternative. The nine criteria require that a remedial alternative must meet the two threshold criteria (overall protection of human health and the environment and compliance with ARARs (applicable or relevant and appropriate requirements)). If the alternative meets the threshold criteria, five primary balancing criteria are analyzed: (1) long-term effectiveness and permanence; (2) reduction of toxicity, mobility or volume; (3) short-term effectiveness; (4) implementability; and (5) cost. The FS analyzed the above factors in both an extensive narrative summary and using a numeric ranking system, to help differentiate alternatives presented. The FS analysis, upon which the EPA relied in the Proposed Plan, is permitted by the National Contingency Plan (NCP), as well as CERCLA guidance: The NCP states that the overall goal of the remedy selection process is “to select remedies that are protective of human health and the environment, that maintain protection over time, and that minimize untreated waste” (40 CFR 300.430(a)(1)(i)). This goal reflects CERCLA's emphasis on treatment as the preferred method of protection. However, recognizing that CERCLA tempers its emphasis on permanent solutions and treatment through the addition of the qualifier “to the maximum extent practicable,” and also contains the co-equal mandate for remedies to be cost-effective, the NCP goes on to state that, in general, “EPA expects to use treatment to address the principal threats posed by a site, wherever practicable. Principal threats for which treatment is most likely to be appropriate include liquids, areas contaminated with high concentrations of toxic compounds, and highly mobile materials” (40 CFR 300.430(a)(1)(iii)(A)) (see “A Guide to Principal Threat and Low Level Threat Wastes,” Publication 9380.3-06FS, November 1991). At the same time, “EPA expects to use engineering controls, such as containment, for waste that poses a relatively low long-term threat or where treatment is impracticable,” and to combine these methods and use of institutional controls, as appropriate, at sites with both types of contaminated materials (40 CFR 300.430(a)(1)(iii)(B) and (C)). September 1996 fact sheet “The Role of Cost in the Superfund Remedy Selection Process” (OSWER Publication 9200.3-23FS, EPA 540/F-96/018, PB96-963245) (emphasis added). As previously discussed, the EPA has serious concerns about the implementability of treating excavated mixed wastes from the West Landfill and Wet Scrubber Sludge Pond. The EPA also believes that the current groundwater contaminant plume poses a relatively low long-term threat for the human health and ecological risk reasons discussed above. The EPA is also concerned about safety given the potential explosiveness and release of toxic gases from excavating buried spent pot liner in contact with groundwater. In summary, cost is one of multiple balancing criteria and must be considered in a CERCLA analysis. As a result, for alternatives with similar scores, the EPA appropriately considered cost, but it was not the only nor the most important criterion considered. For additional information on the role of costs in the CERCLA process, please read this EPA Quick Reference Fact Sheet: https://semspub.epa.gov/work/HQ/174446.pdf 3. The Preferred Alternative for groundwater is a modification of FS Alternative #4 and is both a containment and treatment remedy. In the second paragraph of their letter, CCC states that the EPA selected Alternative 4 of the 2021 FS as the Preferred Alternative in the June 2023 Proposed Plan. This is inaccurate because the Preferred Alternative presented in the Proposed Plan is a modification of FS Alternative 4, as it is both a containment and a treatment remedy. It includes treatment of contaminated groundwater, if necessary. Please see EPA’s 2023 Proposed Plan for a complete description on Page 29: “The alternative in this Proposed Plan differs slightly from that presented in the feasibility study report in that interior wells installed during construction are assumed to be needed for long‐term groundwater extraction and treatment. The wells will be used initially for monitoring and, if the slurry wall is not effective in stopping migration of the groundwater plume, they will be used to extract groundwater for treatment. If treatment is determined to be necessary, it would be seasonal and require much less volumes of groundwater to be treated compared to the downgradient extraction alternatives.” 4. The EPA believes CCC’s Preferred Alternative (Modified Alternative #6) would be extremely difficult, if not technically impracticable, to implement. It may also exacerbate the groundwater contaminant plume, and it adds unnecessary costs. CCC identifies their preferred alternative as FS Alternative #6 – Excavation of wastes with onsite disposal in a new repository constructed to meet Resource Conservation and Recovery Act (RCRA) Subtitle C requirements for hazardous waste landfills. CCC would modify Alternative 6 to include solidification and stabilization of the excavated wastes prior to disposal in the repository and downgradient treatment of the residual groundwater contaminant plume. These technologies and remedial alternatives were analyzed by the EPA and the Montana Department of Environmental Quality (DEQ) during the preparation of the FS and subsequently during the development of the Proposed Plan. While Alternative #6 ranked highest for long-term protectiveness, it had the lowest rating for implementability. Excavating the wastes believed to be present in the West Landfill/Wet Scrubber Sludge Pond would present multiple technical challenges: ▪ Wastes in these waste management units include spent pot liner and wet scrubber sludge and may also include many different types of wastes. The heterogeneity of these waste materials is similar to that of wastes in CERCLA municipal landfill sites, for which the EPA has developed a national Presumptive Remedy strategy of containment. Treatment of mixed waste poses many technical challenges because different wastes require different techniques and approaches for handling, mitigation of risk, disposal, and treatment. Please see EPA’s fact sheet on CFAC landfills for more information: https://semspub.epa.gov/work/08/100015220.pdf. ▪ It would require an estimated 4-5 years to excavate the estimated 1.3 million cubic yards of aluminum refining wastes and underlying contaminated soil. Excavation would take even longer if solidification and stabilization measures were conducted prior to placement of wastes in a lined repository. The possibility of encountering unknown waste types would require an evaluation of solidification/stabilization alternatives for these unknown waste types which would further expand the construction timeline. The excavation site would be open for years. Despite best management practices used to limit stormwater and snowmelt runoff into the construction work area, the open excavation would allow some precipitation to infiltrate the exposed wastes. Infiltrated precipitation would leach additional contaminants into the groundwater, which, in addition to the existing seasonal contact of wastes with groundwater under high water table conditions, would likely increase contaminant concentrations in the upper aquifer. ▪ As referenced previously, exposure of spent pot-liner to water has the risk of creating explosive and toxic gases, which poses significant technical and safety challenges. Please see EPA’s fact sheet outlining additional challenges of excavation and offsite disposal of spent pot-liner, including the potential of excavation creating cyanide gas: https://semspub.epa.gov/work/08/100015029.pdf. CCC states that downgradient capture and treatment of groundwater after removal or containment remedies are implemented would reduce the estimated time to meet porewater and surface water standards in the Backwater Seep Sampling Area from 35-60 years to 6-9 years. However, the EPA believes the additional incremental cost of downgradient capture and treatment of an estimated $30 million is unjustified because the human health and ecological risk from groundwater contamination is already below acceptable levels. There is no offsite human health risk through direct contact with contaminated groundwater when the contaminant plume is confined within the Site boundary. Onsite risk will be managed using institutional controls in the form of a controlled groundwater exclusion area that will be established to restrict groundwater use onsite. The potential risk from surface water and porewater exceedances is limited to benthic invertebrate organisms, which may be present in a groundwater-surface water mixing zone along the shoreline within, and immediately adjacent to, the Backwater Seep Sampling Area, not the Flathead River. Cost is one of multiple balancing criteria and must be considered in a CERCLA analysis. As a result, for alternatives with similar scores, the EPA appropriately considered cost, but it was not the only nor the most important criterion considered. 5. The nature and extent of contamination in groundwater, surface water, and pore water emanating from the West Landfill and Wet Scrubber Sludge Pond has been well characterized and the Preferred Alternative is designed to meet water quality standards, and any selected remedy must also meet water quality standards. On page 2, CCC’s letter states “Notably, there has been inadequate assessment of the undisputed toxic plume from [potentially responsible party CFAC LLC]” and “[CFAC LLC’s] investigation of impacts on the groundwater plume ended with the finding that toxins related to [the Site] were present in and contaminating surface waters in the Flathead and other creeks but did not adequately evaluate how the preferred alternative would, or would not, violate water quality criteria or harm aquatic life.” The Remedial Investigation did not detect site contaminants of concern in the Flathead River. Three contaminants (cyanide, barium, and aluminum) exceed surface water ecological risk screening levels at the Backwater Seep Sampling Area and the Riparian Area (see last page of this Attachment for a labeled site map). Screening levels for these contaminants were not exceeded in surface water samples collected from the Flathead River. The Baseline Ecological Risk Assessment that was prepared under EPA direction and approved by EPA toxicologists addressed risk to aquatic life, including fish. Under MPDES permit for Outfall 0006, CFAC LLC conducted eighteen whole effluent toxicity testing studies on a quarterly basis from 2014 to 2019 to evaluate the potential toxic effects in the Backwater Seep Sampling Area to the Fathead Minnow and the daphnid, species that are both sensitive to cyanide exposure. Results indicate that cyanide and other contaminants had no significant toxic effect on the Fathead Minnow, (BERA pages 116-117). The EPA agrees that the selected remedy must meet water quality standards and has focused on developing a remedy that will achieve this throughout the life of the site. Section 121(d) of CERCLA requires that onsite remedial actions attain or waive federal environmental ARARs (applicable or relevant and appropriate requirements, which refers to environmental or facility siting laws and regulations that are relevant to a specific site and its remedial actions), or more stringent state environmental ARARs, upon completion of the remedial action. ARARs were first identified by the EPA and DEQ in the FS, in accordance with the NCP (40 CFR § 430(e)(2)(i)). ARARs, including water quality standards, are available in Table 3-1 of the FS. Each FS alternative was analyzed for its ability to comply with ARARs. For groundwater, all retained FS remedial alternatives, except for Alternative LDU1/GW-1 (No Action), would comply with state and federal ARARs identified in Table 3-1, including water quality standards. As described above, during remedy selection, there are two threshold criteria for any remedy: (1) protection of human health and the environment and (2) ARARs compliance. In the Proposed Plan, the EPA extensively discusses compliance with ARARs, and any future decision document will include an ARARs table and specifically include water quality standards. 6. Containment is a proven engineered control widely used in Superfund cleanups. Under the CCC’s preferred alternative, the CCC believes the impacted soils and sediments (excavated under the Soils Decision Unit and North Percolation Ponds Decision Unit) should undergo solidification and stabilization prior to disposal into a repository, citing EPA’s preference for treatment. Again, CCC is referred to the NCP as cited above. Containment of these excavated soils and sediments under a cap meeting RCRA requirements will contain these contaminants. Solidification and stabilization of these soils and sediments was determined to be unnecessary during the FS as the contaminants contained in these impacted soils, such as polycyclic aromatic hydrocarbons and metals, are neither highly toxic nor highly mobile. 7. Page 5 of the CCC letter stated that risks cannot be determined without sampling the contents of the landfill. However, human health and ecological risk can in fact be evaluated and assessed without knowing the exact contents of the capped landfills. The baseline human health risk assessment and baseline ecological risk assessment evaluated the risk to human and ecological receptors from exposure to Site contaminants. Concentrations of contaminants in soil, groundwater, and surface water that could be in direct contact with these receptors were evaluated. There is no pathway for these receptors to be exposed to wastes beneath covers and caps. The absence of a direct exposure pathway to the receptor makes it impractical to calculate and quantify risk. For more information on the ecological risk assessment, findings, and results please see the Baseline Ecological Risk Assessment here: https://semspub.epa.gov/work/08/1970445.pdf. � �� This fact sheet describes the role of cost in the selection of remedial actions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, commonly referred to as Superfund). Cost is a central factor in all Superfund remedy selection decisions. The objective of this fact sheet is to clarify the current role of cost as established in existing law, regulation, and policy. This fact sheet does not elevate or establish a new role for cost in the Superfund program, but rather describes the current role of cost as established by the Superfund statute (CERCLA) and the Superfund regulations (the National Oil and Hazardous Substances Contingency Plan (NCP)), and as expanded upon in EPA guidance. Through the distribution of this fact sheet, EPA hopes to ensure that all stakeholders involved in the Superfund process fully understand the important role that cost plays in remedy selection under existing law and policy, and to summarize recent initiatives aimed at enhancing the cost-effectiveness of remedial actions. These initiatives include the National Remedy Review Board, Remedy Selection Rules of Thumb, and Updating Remedy Decisions. � �� Understanding the role of cost in the Superfund remedy selection process requires an understanding of the statutory and regulatory provisions that guide this process. CERCLA established five principal requirements for the selection of remedies. Remedies must: 1) Protect human health and the environment; 2) Comply with applicable or relevant and appropriate requirements (ARARs) unless a waiver is justified; 3) Be cost-effective; 4) Utilize permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable; and 5) Satisfy a preference for treatment as a principal element, or provide an explanation in the Record of Decision (ROD) why the preference was not met. The NCP sets forth the Remedial Investigation/Feasibility Study (RI/FS) process for gathering the information necessary to select a remedy that is appropriate for the site and fulfills these statutory mandates. The RI includes sampling and analysis to characterize the nature and extent of site contamination, performance of a baseline risk assessment to assess the current and potential future risks to human health and the environment posed by that contamination, and the conduct of treatability studies to evaluate the potential costs and effectiveness of treatment or recovery technologies in reducing the toxicity, mobility, or volume of specific site waste. The FS includes the development and screening of alternative remedial actions, and the detailed evaluation and comparison of the final candidate cleanup options. Typically, a range of options is developed during the FS concurrently with the RI site characterization, with the results of each influencing the other in an iterative fashion. The NCP also lays out a two-step selection process, in which a preferred remedial action is presented to the public for comment in a Proposed Plan, which summarizes preliminary conclusions as to why that option appears most favorable based on the information available and considered during the FS. Following the receipt and evaluation of public comments on the Proposed Plan, which may include new information (e.g., a fuller view of community 1 input on the options, new information on technology performance), the decision maker makes a final decision and documents the selected remedy in a ROD. For a general discussion of this process, see EPA's "Guidance for Conducting Remedial Investigations and Feasibility Studies Under CERCLA Interim Final," OSWER Directive 9355.3-01, October 1988, and "Guide to Selecting Superfund Remedial Actions," OSWER Directive 9355.0-27FS, hereinafter referred to as the RI/FS Guidance and the Remedy Selection Guidance, respectively. In addition to the items discussed in more detail below, it is important to keep in mind that remedial action costs are influenced, in general, by the quality of the conceptual site model (CSM), which is a three- dimensional “picture” of site conditions that illustrates contaminant distributions, release mechanisms, exposure pathways, migration routes, and potential receptors. The CSM documents current site conditions and is supported by maps, cross sections, and site diagrams that illustrate what is known about human and environmental exposure through contaminant release and migration to potential receptors. It is initially developed during the scoping phase of the RI/FS, and modified as additional information becomes available. Careful evaluation of site risks, incorporating reasonable assumptions about exposure scenarios and expected future land use, and the definition of principal threat waste generally warranting treatment, help to prevent implementation of costly remediation programs that may not be warranted. In addition, EPA expects that the appropriately consistent application of existing national policy and guidance will result in the selection of cost-effective remedies. Guidance that promotes cost-effective decision making includes the Presumptive Remedy series, Soil Screening Guidance, and Land Use Guidance. For more information, see OSWER Directives 9355.0 - 47FS, 9355.4-14FSA, and 9355.7- 04, respectively. � �� During the first step of the FS, a range of remedial alternatives is developed and then screened in order to identify those alternatives that should be considered in more detail. Cost estimates developed for each option comprise the short- and long-term cost of remediation, including capital costs (e.g., the costs to put remedial technology in place, including those for equipment, labor, materials, and services), and the annual costs of operations and maintenance (O & M) for the entire period during which such activities will be required. Costs should be discounted to a common base year to evaluate expenditures over time. A discount rate of seven percent before taxes and after inflation should be used to account for the time value of money (see “Revisions to OMB Circular A-94 on Guidelines and Discount Rates for Benefit-Cost Analysis,” OSWER Directive 9355.3-20, June 25, 1993). A more complete description of remedial action cost estimating can be found in the RI/FS Guidance. �� In elaborating the RI/FS process, the NCP instructs decision makers on how to implement both the mandate to utilize permanent solutions and treatment to the maximum extent practicable and the requirement to select remedial actions that are cost- effective. Specifically, the NCP establishes the program goal and expectations found at 40 CFR 300.430(a)(1)(iii) (See Exhibit 1). These expectations identify the appropriate methods of protection which generally should guide the development of cleanup options for common types of site situations, while allowing flexibility to modify these expectations to take into account truly unique site circumstances. The NCP states that the overall goal of the remedy selection process is "to select remedies that are protective of human health and the environment, that maintain protection over time, and that minimize untreated waste" (40 CFR 300.430(a)(1)(i)). This goal reflects CERCLA's emphasis on treatment as the preferred method of protection. However, recognizing that CERCLA tempers its emphasis on permanent solutions and treatment through the addition of the qualifier "to the maximum extent practicable," and also contains the co-equal mandate for remedies to be cost-effective, the NCP goes on to state that, in general, “EPA expects to use treatment to address the principal threats posed by a site, wherever practicable. Principal threats for which treatment is most likely to be appropriate include liquids, areas contaminated with high concentrations of toxic compounds, and highly mobile materials” (40 CFR 300.430(a)(1)(iii)(A)) (see "A Guide to Principal Threat and Low Level Threat Wastes," Publication 9380.3-06FS, November 1991). At the same time, "EPA expects to use engineering controls, such as containment, for waste that poses a relatively low long-term threat or where treatment is impracticable," and to combine these 2 �� Protection of human health and the environment can be achieved through a variety of methods: treatment to destroy or reduce the inherent hazards posed by hazardous substances, engineering controls (such as containment), and institutional controls to prevent exposure to hazardous substances. The NCP sets out the types of remedies that are expected to result from the remedy selection process (Sec. 300.430(a)(1)(iii)). Treat principal threats, wherever practicable. Principal threats for which treatment is most likely to be appropriate are characterized as: Areas contaminated with high concentrations of toxic compounds; Liquids and other highly mobile materials; Contaminated media (e.g., contaminated ground water, sediment, soil) that pose significant risk of exposure; or Media containing contaminant concentrations several orders of magnitude above health-based levels. Appropriate remedies often will combine treatment and containment. For a specific site, treatment of the principal threats(s) may be combined with containment of treatment residuals and low-level contaminated material. Containment will be considered for wastes that pose a relatively low long-term threat or where treatment is impracticable. These include wastes that are near health-based levels, are substantially immobile, or otherwise can be methods and use of institutional controls, as appropriate, at sites with both types of contaminated materials (40 CFR 300.430(a)(1)(iii)(B) and (C)). In addition, “EPA expects to use institutional controls such as water use and deed restrictions to supplement engineering controls as appropriate for short- and long-term management to prevent or limit exposure to hazardous substances, pollutants, or contaminants. . .. The use of institutional controls shall not substitute for active response measures (e.g., reliably contained over long periods of time; wastes that are technically difficult to treat or for which treatment is infeasible or unavailable; situations where treatment-based remedies would result in greater overall risk to human health or the environment during implementation due to potential explosiveness, volatilization, or other materials handling problems; or sites that are extraordinarily large where the scope of the problem may make treatment of all wastes impracticable, such as municipal landfills or mining sites. Institutional controls are most useful as a supplement to engineering controls for short- and long-term management. Institutional controls (e.g., deed restrictions, prohibitions of well construction) are important in controlling exposure during remedial action implementation and as a supplement to long-term engineering controls. Institutional controls alone should not substitute for more active measures (treatment or containment) unless such active measures are found to be impracticable. Innovative technologies should be considered if they offer the potential for comparable or superior treatment performance, fewer/lesser adverse impacts, or lower costs for similar levels of performance than demonstrated technologies. Ground waters will be returned to their beneficial uses wherever practicable within a timeframe that is reasonable given the particular circumstances of the site. treatment and/or containment of source material, restoration of ground waters to their beneficial uses) as the sole remedy unless such active measures are determined not to be practicable, based on the balancing of trade-offs among alternatives that is conducted during the selection of remedy” (40 CFR 300.430(a)(1)(iii)(D)). The NCP also contains the following expectation for Ground Water Response Actions: "EPA expects to return usable ground waters to their beneficial uses 3 whenever practicable, within a time frame that is reasonable given the particular circumstances of the site. When restoration of ground water to beneficial uses is not practicable, EPA expects to prevent further migration of the plume, prevent exposure to the contaminated ground water, and evaluate further risk reduction" (40 CFR 300.430(a)(1)(iii)(F)). This recognizes that there may be particular site circumstances (e.g., DNAPL in fractured bedrock) where complete restoration will not be practicable. These Superfund program expectations guide the development of remedial alternatives during the FS. Although cost is not a specific element of the Superfund program expectations, the recognition that different waste management approaches (i.e., combinations of treatment, containment, and institutional controls) may be appropriate at different sites depending on the types of threats posed, reflects a "built-in" sensitivity to the issue of cost in the Superfund remedy selection process (e.g., large sums of money should not be spent treating low-level threat wastes). These expectations reflect EPA's belief that certain source materials are generally addressed best through treatment because of technical uncertainties regarding the long-term reliability of containment of these materials, and/or the serious consequences of exposure should a release occur. These expectations also reflect the conclusion that other source materials generally can be reliably contained. �� The NCP describes cost as one of three "screening" criteria (the others being effectiveness and implementability) used to identify higher cost alternatives that should not be carried forward for detailed evaluation. Alternatives may be screened out if they: 1. Provide "effectiveness and implementability similar to that of another alternative by employing a similar method of treatment or engineering control, but at greater cost" (40 CFR 300.430(e)(7)(iii)). 2. Have costs that are "grossly excessive compared to [their] overall effectiveness" (40 CFR 300.430(e)(7)(iii)). For example, the costs associated with treating a complex mixture of heterogeneous wastes without discrete hot spots (e.g., a large municipal landfill) would likely be considered excessive in comparison to the effectiveness of such treatment. As a result, a treatment alternative for such a site would likely be eliminated from consideration during the screening process. Cost estimates at the alternative screening stage should focus on relative, rather than absolute, accuracy. At the screening stage, it may also be unnecessary to evaluate costs that are common to all alternatives. � �� The purpose of the detailed analysis is to objectively assess the alternatives with respect to nine evaluation criteria that implement the statutory provisions of CERCLA section 121. This analysis consists of an individual evaluation of each alternative with respect to each criterion, and a comparison of options designed to determine the relative performance of the alternatives and identify major trade-offs among them (i.e., relative advantages and disadvantages) with respect to the same factors. The decision maker uses information assembled and evaluated during the detailed analysis in selecting a remedial action. Cost estimates at the detailed analysis stage should capture all remedial costs and, whenever possible, should provide an accuracy of +50 percent to -30 percent. Sensitivity analysis may be warranted if a cost estimate might vary significantly with relatively small changes in the underlying assumptions, especially those concerning the effective life of a remedial action, the O & M costs, the duration of cleanup, site characteristics (e.g., volume of contaminated material), and the discount rate (RI/FS Guidance, page 6-12). The actual process of selecting a Superfund remedy is the decision making bridge between development of remedial alternatives during the FS and documentation of the selected remedy in a ROD. The process begins with the identification of a preferred remedial alternative from among those developed in the FS. This preferred alternative is then presented to the public for comment in the form of a Proposed Plan. Based on the review of public comments, a final remedy selection decision is made and documented in a ROD. 4 Cost is a critical factor in the process of identifying a preferred remedy. In fact, CERCLA and the NCP require that every remedy selected must be cost-effective. A brief summary of the relationship between the nine remedy selection criteria and the five principal statutory remedy selection requirements will provide a useful context for a discussion of the role of cost in the remedy selection process. For a more detailed discussion of the nine criteria and the remedy selection process in general, see EPA's Remedy Selection Guidance. �� During the remedy selection process, nine evaluation criteria are considered in distinct groups which play specific roles in working toward the selection of a remedy that satisfies the five principal statutory requirements. The nine evaluation criteria include two "threshold" criteria, five "balancing" criteria (including cost), and two "modifying" criteria (state and community acceptance), as illustrated in Exhibit 2. The modifying criteria are considered to the extent possible during the process leading up to and including the Proposed Plan, and are fully considered after public comments on that plan have been received. Following receipt and consideration of public comments, including any new information they might contain, the decision maker makes a final decision which is documented in the ROD. The first two statutory requirements -- protection of human health and the environment, and compliance with ARARs (unless a waiver is justified) -- are embodied in the two threshold criteria. A remedial alternative must satisfy these two requirements to be eligible for further evaluation against the other seven factors. Advantages and disadvantages of alternatives that satisfy the threshold criteria are balanced using the five balancing criteria, and the two modifying criteria (if there is enough information to consider these latter criteria in advance of the formal public comment process). This balancing determines which option represents the remedy that utilizes "permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable” (MEP) for that site (40 CFR 300.430(f)(1)(ii) (E)). The decision maker considers the statutory preference for treatment as an “overlay” to inform and direct this balancing (id.). The alternatives are also separately evaluated against a subset of the criteria to make the determination of which option(s) satisfy the statutory cost-effectiveness. A remedial alternative is cost- effective if its “costs are proportional to its overall effectiveness” (40 CFR 300.430(f)(1)(ii)(D)). Overall effectiveness of a remedial alternative is determined by evaluating the following three of the five balancing criteria: long-term effectiveness and permanence; reduction in toxicity, mobility and volume (TMV) through treatment; and short-term effectiveness (See Exhibit 3). Overall effectiveness is then compared to cost to determine whether the remedy is cost-effective (id.). Cost considerations are therefore factored into the balancing of alternatives in two ways. Cost is factored into the determination of cost-effectiveness, as described above. And, cost is evaluated along with the other balancing criteria in determining which option represents the practicable extent to which permanent solutions and treatment or resource recovery technologies can be used at the site. This balancing emphasizes two of the five criteria (long-term effectiveness and permanence, and reduction of TMV through treatment) (40 CFR 300.430(f)(1)(ii)(E)). However, in practice, decisions typically will turn on the criteria that distinguish the different cleanup options most. The expectations anticipate some of the likely tradeoffs in several common situations, although site-specific factors will always play a role. � �� Section 121 of CERCLA specifies that all remedial actions must "meet any Federal standards, requirements, criteria or limitations that are determined to be legally applicable or relevant and appropriate requirements." Specific statutes cited in CERCLA that might present such an ARAR include the Solid Waste Disposal Act, the Toxic Substances Control Act, the Safe Drinking Water Act, the Clean Air Act, the Clean Water Act, and the Marine Protection Research and Sanctuaries Act. In addition to the Federal ARAR requirement, remedial actions must meet any applicable or relevant and appropriate promulgated State standard, requirement, criterion or limitation if it is more stringent than the corresponding Federal requirement. As previously discussed, compliance with ARARs is one of the two threshold criteria for the selection of a preferred remedy. 5 is . � $40 �� NINE CRITERIA STATUTORY FINDINGS PROTECTION OF HUMAN HEALTH AND THE ENVIRONMENT PROTECTION OF HUMAN HEALTH AND THE ENVIRONMENT COMPLIANCE WITH ARARs COMPLIANCE WITH ARARs OR JUSTIFICATION OF A WAIVER LONG-TERM EFFECTIVENESS AND PERMANENCE TOXICITY, MOBILITY, OR VOLUME REDUCTION THROUGH TREATMENT SHORT-TERM EFFECTIVENESS COST-EFFECTIVENESS UTILIZATION OF PERMANENT SOLUTIONS AND TREATMENT OR RECOVERY TO THE MAXIMUM EXTENT PRACTICABLE ("MEP") IMPLEMENTABILITY COST STATE AGENCY ACCEPTANCE COMMUNITY ACCEPTANCE PREFERENCE FOR TREATMENT AS A PRINCIPAL ELEMENT OR EXPLANATION AS TO WHY PREFERENCE NOT SATISFIED Cost is not a factor in the identification of ARARs. However, CERCLA authorizes the waiver of an ARAR with respect to a remedial alternative if any one of six bases exist (See Exhibit 4). As described below, cost may be a consideration with respect to determining whether a technical impracticability, equivalent level of performance, or Fund-balancing waiver warranted. �� Cost is relevant to the technical impracticability waiver, because engineering feasibility is ultimately limited by cost. EPA has stated that cost can be considered in evaluating technical impracticability, although it "should generally play a subordinate role" and should not be a major factor unless compliance would be "inordinately costly" (55 FR at 8748, March 8, 1990) Thus, the role of cost in evaluating technical impracticability is more limited than in the general balancing of tradeoffs with respect to the remedy selection criteria, but cost may be considered in certain cases. �� This waiver is available when an alternative will provide a level of performance equivalent to that required by the ARAR, but through an alternative design or method of operation. While cost is not considered in evaluating equivalence, this waiver can provide cost-saving flexibility in selecting remedies. Alternative, less expensive technologies that attain the same outcome (e.g., concentration of residuals) should be explored before concluding that a highly costly approach must be adopted because it is an action- specific ARAR. �� For Fund-financed remedies, the fund-balancing waiver may be invoked when compliance with an ARAR would not provide a balance between the need to provide protection at a site and the need to address other sites. EPA's policy is to consider this waiver when the total cost of a remedy is greater than four times the national average cost of remediating an operable unit (currently, 4x$10 million, or million), or in other cases where "EPA determines 6 LONG-TERM EFFECTIVENESS AND PERMANENCE • MAGNITUDE OF RESIDUAL RISK • ADEQUACY AND RELIABILITY OF CONTROLS REDUCTION OF TOXICITY, MOBILITY, OR VOLUME THROUGH TREATMENT • TREATMENT PROCESS USED AND MATERIALS TREATED • AMOUNT OF HAZARDOUS MATERIALS DESTROYED OR TREATED • DEGREE OF EXPECTED REDUCTIONS IN TOXICITY, MOBILITY, AND VOLUME • DEGREE TO WHICH TREATMENT IS IRREVERSIBLE • TYPE AND QUANTITY OF RESIDUALS REMAINING AFTER TREATMENT • CAPITAL COSTS • OPERATIONS AND MAINTENANCE COSTS • PRESENT WORTH COST COST SHORT-TERM EFFECTIVENESS • PROTECTION OF COMMUNITY DURING REMEDIAL ACTIONS • PROTECTION OF WORKERS DURING REMEDIAL ACTIONS • ENVIRONMENTAL IMPACTS • TIME UNTIL REMEDIAL OBJECTIVES ARE ACHIEVED COST EFFECTIVENESS �� that the single site expenditure would place a disproportionate burden on the fund" (55 FR at 8750). �� Even when waivers are not available, the NCP provides opportunity for cost-savings in achieving cleanup goals. For example, the NCP requires cleanup to relevant and appropriate Maximum Contaminant Levels (MCLs) and non-zero MCL goals (MCLGs) when remediating contaminated ground water whose beneficial use is as a drinking water source. However, the time frame over which the MCLs must be achieved may be adjusted, depending on such factors as whether the aquifer is currently being used or likely to be needed in the near future. In some cases, allowing for an extended time frame to achieve cleanup standards provides the opportunity to develop less intensive, lower cost alternatives. �� The Administrative reforms announced in October 1995 include several initiatives that are intended, in part, to control remedy costs and further facilitate the achievement of cost-effective cleanup. �� The National Remedy Review Board brings together senior EPA technical and policy experts to review and make recommendations on proposed cleanup actions at sites where the estimated cost for the preferred alternative is more than $30 million, or more than $10 million and 50% greater than the cost of the least costly, protective, ARAR-compliant alternative. Regional decision makers are expected to give the Board's recommendations substantial weight. However, other important factors may influence the final Regional decision, such as public comment or technical analysis of remedial options. This reform 7 does not supersede any delegated decision making authority. �� ! Rules of thumb consist of key principles and expectations corresponding to three major policy areas in the remedy selection process: assessment and management of risk; treatment of principal threats versus containment of low-level threat waste; and ground water response actions. The purpose of this initiative is to promote consistent, reasonable, and cost-effective decision making through the appropriate application of national policy and guidance. In addition, EPA is developing a set of "Management Review Triggers" that will flag senior EPA management attention to specific aspects of proposed remedies that should be examined closely to ensure they are justified by site-specific conditions. Together, rules of thumb and management triggers will become part of a standard list of Superfund issues on which Headquarters, Regions and States work together to ensure appropriate application of national policy and guidance. �� The purpose of this reform is to encourage Superfund RODs. These updates are intended to bring past remedy decisions into line with the current state of knowledge with respect to remediation science and technology, and in so doing to improve the cost- effectiveness of site remediation while ensuring reliable protection of human health and the appropriate changes to remedies selected in existing environment. The primary focus of the “Update” reform effort will be ground water sites, as ground water science has advanced a great deal since the inception of the Superfund program. Three basic types of updates will be emphasized, although other types of updates are not excluded: a) where new remediation technology is available; b) where remediation objectives or approaches need revision; and c) where streamlining of a ground water monitoring program is reasonable. �� 1. The alternative is an interim measure that will become part of a total remedial action that will attain the ARAR; 2. Compliance with the requirement will result in greater risk to human health and the environment than other alternatives; 3. Compliance with the requirement is technically impracticable from an engineering perspective; 4. The alternative will attain a standard of performance that is equivalent to that required under the otherwise applicable standard, requirement, or limitation through use of another method; 5. With respect to a state requirement, the state has not consistently applied, or demonstrated the intention to consistently apply, the promulgated requirement in similar circumstances at other remedial actions within the state; or 6. For Fund-financed response actions only, an alternative that attains the ARAR will not provide a balance between the need for protection of human health and the environment at the site and the availability of Fund monies to respond to other sites. NOTICE: The policies set out in this memorandum are intended solely as guidance. They are not intended, nor can they be relied upon, to create any rights enforceable by any party in litigation with the United States. EPA officials may decide to follow the guidance provided in this memorandum, or to act at variance with the guidance, based on an analysis of specific site circumstances. The Agency also reserves the right to change this guidance at any time without public notice. 8 Dear: Governor Greg Gianforte, Senator Steve Daines, Senator Jon Tester, Representative Ryan Zinke, Representative Matt Rosendale, The Flathead County Commissioners, The Columbia Falls City Council, This letter is written on behalf of the Coalition for a Clean CFAC regarding the proposed remedy (aka cleanup plan) for the accumulation of highly hazardous waste at the Columbia Falls Aluminum Company (CFAC). As many know, there is intense pressure to adopt some sort of clean-up plan and move this project forward. However, anyone who lives, recreates, works, or visits the Flathead should not confuse the desire to start a clean-up plan, with a science-based understanding of whether a clean-up plan will, in-fact, clean-up the toxic CFAC pollution. The owner of CFAC, Glencore, is advocating that the Environmental Protection Agency (EPA) adopt Preferred Alternative #4 (out of 6 options). Having spent the past 3 months researching the more than 10,000 pages of the EPA records, which Glencore’s consultants primarily wrote and compiled and the EPA relies on to justify the selection of Alternative #4, we are obligated to share our opinion that Alternative #4 is a raw deal for the Flathead, is not as protective as other feasible alternatives, and relies more on hopes and prayers for a permanent solution to toxic clean-up than it does best available science. For the reasons explained below we strongly encourage elected leaders to stand united in telling EPA that they must pause decision-making on any preferred alternative and issuing a Record of Decision until this happens. Below we share critical flaws in the proposed cleanup plan, as well as discuss the alternatives that could provide greater long-term, permanent protection of our local economy, future redevelopment of the CFAC site, our clean water, healthy rivers, and fisheries. Note this letter follows a series of earlier letters we have sent you and the EPA. As always, we would welcome an opportunity to meet with any of you directly to discuss this issue. As set forth on the front page of the 35-page CFAC Cleanup Plan Summary, “…EPA will review and consider all comments provided and, in consultation with the Montana Department of Environmental Quality (DEQ), will move forward with the Preferred Alternative, modify it, or select another of the alternatives presented in this plan. The Selected Alternative will be documented in a formal Record of Decision that will include a responsiveness summary to address comments received.”(emphasis added) Note that we are recommending, consistent with this statement, that the Preferred Alternative #4 be replaced with Alternative #6 and 2 modified to include treatment strategies improperly dismissed by Glencore’s consultant ROUX, in the Feasibility Study, due to alleged cost or other unsubstantiated reasons. These modifications include: (a) treatment of toxic waste through Solidification and Stabilization1 (S/S) combined with; (b) Alternative 6’s option of consolidation of still hazardous waste after S/S in a newly constructed on-site repository meeting substantive RCRA Subtitle C requirements for modern hazardous waste impoundments; and (c) ground water extraction and treatment called for in Alternative 4C, which could reduce the cleanup time of the existing contaminated plume from 35-60 years to 6-9 Years. (Note Alternative #6 ranked in the draft plan as the highest Alternative for long- term effectiveness and permanence.) Furthermore, and in support of our request that you join us in urging EPA to pause any Record of Decision and instead, re-evaluate its preferred alternative, please consider the following: It is wrong to prioritize cost-savings to multi-national corporations like Glencore and ARCO, who are responsible for cleanup costs at the Columbia Falls Aluminum Company (CFAC) site, by approving cleanup remedies that cost much less, but will take an estimated 35 to 60 years, if even then, to fully cleanup the existing polluted groundwater plume, over more costly remedies that would clean up the polluted ground water in six to nine years, and with a higher degree of certainty. The statutory and regulatory context for the consideration of cost in selecting a preferred alternative in a CERCLA plan is one of five criteria. Remedies must (1) protect human health and the environment, (2) comply with applicable or relevant and appropriate requirements unless a waiver is justified; (3) be cost-effective; (4) utilize permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable; and (5) satisfy a preference for treatment as a principal element, or provide an explanation why such preference was not met. The proposed draft remedy of Preferred Alternative 4 reflects a unitary focus on the lowest cost, with short shrift being given to other mandatory criteria. The draft plan needs to be amended to include strategies that prevent an undisputed, existing, toxic plume of groundwater from continuing to enter the Flathead River and shallow backwaters that are critical habitat for rare and/or threatened species like the Bull Trout2 and the Westslope Cutthroat Trout. Notably, there has been inadequate assessment of the undisputed toxic plume from CFAC, upon threatened and endangered aquatic species or their critical habitat, which support both those species and the Flathead’s world class recreational opportunities, much less the outdoor economy driven by our healthy rivers and clean water. 1 Solidification/stabilization (S/S) transforms potentially hazardous liquid or solid contaminants of concern (COCs) present in soil or sediment into environmentally innocuous materials of considerably reduced mobility, thus preventing the hazardous waste from reaching receptors. https://frtr.gov/matrix/Solidification-and-Stabilization/ . This treatment method is one of the top five treatment methods used at Superfund sites and is currently in use at over 250 Superfund sites across the country. Studies show S/S has been used to successfully clean up cyanide. 2 Bull trout were listed as “threatened” under the Endangered Species Act in 1998. 3 CFAC's investigation of impacts on the groundwater plume ended with the finding that toxins related to CFAC were present in and contaminating surface waters in the Flathead and other creeks, but did not adequately evaluate how the preferred alternative would, or would not, violate water quality criteria or harm aquatic life. CERCLA requires evaluation of why a proposed remedy satisfies components of the federal Clean Water Act, including compliance with toxic water quality criteria and demonstrations of how remedies will, or will not, be protective of aquatic life. This diligence is simply ignored in Preferred Alternative 4. Additionally, regarding groundwater treatment, one of EPA’s consultants identified the deficiencies of Alternative 4 long before release of the draft clean-up plan: “The addition of downgradient groundwater extraction and treatment adds an incremental cost of $30 million to the fully encompassing slurry wall alternative, leading the [Feasibility Study] FS to conclude that the benefit of adding groundwater extraction and treatment would not substantially increase the long-term effectiveness and permanence, as compared to a functioning fully encompassing slurry wall. As such, the additional cost is unjustified. A downgradient groundwater extraction and treatment system would have to operate year-round, with flow rates of up to 1,500 gallons per minute during high water table conditions. The benefit of capturing and treating the groundwater at the downgradient end of the plume would be to accelerate the timeframe to attain Remedial Action Objectives (RAOs) (specifically to meet the PRG for free cyanide in porewater and surface water at the River Area DU) to an estimated 6-9 years. Without treatment of the downgradient edge of the plume, the timeframe is estimated at 35-60 years.” (emphasis added) Memorandum from Gunnar Emilsson, CDM Smith to: Ken Champagne, EPA, Amanda Bartley, EPA, and Dick Sloan, DEQ June 17, 2022 Page 5 https://cumulis.epa.gov/supercpad/SiteProfiles/index.cfm?fuseaction=second.ars&id=0800392&doc=Y&colid=67352 &region=08&type=AR CERCLA3 (and EPA regulations) require decision-makers to prioritize treatment4 over containment, yet instead the draft Clean-up Plan calls for approval of containment over treatment. A review of the record suggests that CFAC’s consultant hired to research and create this Cleanup Plan, ROUX, arbitrarily and without merit, dismissed a top treatment option used at Superfund sites around the country--Solidification and Stabilization5 (S/S). 3 42 U.S.C. 9621(b)(1) “Remedial actions in which treatment which permanently and significantly reduces the volume, toxicity or mobility of the hazardous substances, pollutants, and contaminants is a principal element, are to be preferred over remedial actions not involving such treatment.” 4 https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_id=42-USC- 63342472-1059234779&term_occur=999&term_src=title:42:chapter:82:subchapter:I:section:6903 5 Solidification/stabilization (S/S) transforms potentially hazardous liquid or solid contaminants of concern (COCs) present in soil or sediment into environmentally innocuous materials of considerably reduced mobility, thus preventing the hazardous waste from reaching receptors. https://frtr.gov/matrix/Solidification-and-Stabilization/ Note it is our belief that the use of S/S combined with Alternative 6’s option of consolidation of still hazardous waste in a newly constructed on-site repository meeting substantive RCRA Subtitle C requirements for modern 4 Specifically, ROUX concluded in several places in the Feasibility Study (FS) that “These technologies do not provide a better effectiveness compared to more proven and easily implemented technologies (e.g., soil cover). Therefore, both solidification and stabilization for the Soil DU has been screened from further consideration.” 6 However, ROUX failed to provide evidence demonstrating why CERCLA's preferred treatment approach, and specifically S/S strategies, would not be more effective at remediating the CFAC contamination. ROUX concludes S/S strategies are expensive,7 but fails to explain how a soil cover would be more or equally effective, or how a soil cover in this application even qualifies as treatment. We cannot find within EPA regulations where soil covers in this context are even considered a treatment strategy called for by EPA. Put simply, soil cover is a containment strategy. EPA’s own history demonstrates that solidification and stabilization have been selected or are being used in cleanups at over 250 Superfund sites across the country currently. The Draft CFAC Cleanup Plan also runs afoul of CERCLA's penultimate focus - protecting public health and the environment - by recommending the cheapest option for containment, and what evidence suggests is one of the least permanent and most risky containment methods—a slurry wall. The draft recommendation is being made over the concerns expressed by EPA’s own engineer (quoted below) in his review of the draft Cleanup Plan before its release to the public. Further, the majority of public comment that followed the draft plan’s release favored removal and/or treatment, over mere containment. 40 CFR § 300.430(a)(1)(iii)(A) (iii) Expectations. EPA generally shall consider the following expectations in developing appropriate remedial alternatives: (A) EPA expects to use treatment to address the principal threats posed by a site, wherever practicable. Principal threats for which treatment is most likely to be appropriate include liquids, areas contaminated with high concentrations of toxic compounds, and highly mobile materials. https://www.ecfr.gov/current/title- 40/chapter-I/subchapter-J/part-300/subpart-E/section-300.430 ~~~~~~ hazardous waste impoundments and the ground water extraction and treatment called for in Alternative 4C which could reduce the cleanup time of the existing contaminated plume from 35-60 years to 6-9years is the best option…The President shall select a remedial action that is protective of human health and the environment, that is cost effective, and that utilizes permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable.” 6 Feasibility Study Report | ROUX | page 80 7 The Feasibility Study Report | ROUX | pages 69-70 recognizes that “Section 4.2.5 of CERCLA RI/FS Guidance (EPA/540/G-89/004) states that “cost plays a limited role in the screening of process options.” Yet ROUX goes on to say in the very next paragraph, “For this evaluation, relative cost is used to screen out process options that have a high capital cost if there are other choices that perform similar functions with similar effectiveness.” The Feasibility Study Report | ROUX | page 80 also dismisses Solidification/Stabilization (S/S) as being able to treat PAH’s found at CFAC but the following web sites notes it can be treated with S/S using organic binders. https://www.frtr.gov/matrix/Solidification-and-Stabilization/ 5 “The alternative ranking displayed in Table 7-2 indicates that the fully encompassing slurry wall was the highest-scoring alternative. During the June 6 call, CDM Smith expressed concern over the constructability of the slurry wall. The FS indicates that the slurry [wall] would be installed to depths of up to 120 to 150 feet, which is at the limit of current slurry wall construction capabilities. CDM Smith’s knowledge of another barrier wall installation to depths of up to 90 feet within glacial till (at a Superfund site in Washington) suggests that the occurrence of boulders and other natural obstructions along the wall alignment may require significant pre-drilling effort to penetrate. Additionally, complex construction methods such as a composite barrier wall (e.g., a combination of slurry trenching and jet grouting) may need to be considered to construct the wall to the target depths. The inherent complexity of such construction approaches may increase the likelihood of the target depths not being achieved along portions of the wall, thus reducing the effectiveness of the barrier.” Memorandum from Gunnar Emilsson, CDM Smith to Ken Champagne, EPA, Amanda Bartley ,EPA, and Dick Sloan June 17, 2022 Page 4 https://cumulis.epa.gov/supercpad/SiteProfiles/index.cfm?fuseaction=second.ars&id=0800392 &doc=Y&colid=67352&region=08&type=AR (emphasis added) Additionally, regarding protection of human health and the environment including fisheries, we are concerned with the EPA’s and DEQ’s failure to require the taking of specific samples from the seven (7) landfills on the CFAC property.8 This makes absolutely no sense. Without knowing the identity of the contaminants in the landfills and the concentration of these contaminants present in the worst portions of this contaminated site, it’s not possible to know what health risks these areas really pose to the public, or fisheries, or wildlife. Using data collected from monitoring wells and from surface samples collected some distance from the landfills will at best underestimate the human health and environmental risks and at worst, provide a false sense of security. This is especially important since the EPA is considering leaving the contamination in place. Glencore’s consultants have expressed concern about “compromising the integrity of the covers” of the landfills and EPA is thus far accepting their reasoning. Yet, Glencore’s consultants have already drilled soil borings and collected soil samples from three of the landfills (the sanitary, industrial and center landfills).9 However, the lab analysis for these samples was not included in the Remedial Investigation (RI) report. This information needs to be made public and included as part of human health and ecological risk analysis included in the RI report. We want to know what the agency looked for in these samples and what was found. Furthermore, it’s unclear what the condition is of the existing covers. The RI report states that “the industrial 8 “Samples were not directly collected from landfills at the site to avoid compromising the integrity of the covers. In lieu of direct sampling, EPA sampled monitoring wells previously installed in locations down-gradient and up- gradient of the landfill and sludge pond sources to determine if contaminants have been released to groundwater.” https://cumulis.epa.gov/supercpad/SiteProfiles/index.cfm?fuseaction=second.cleanup&id=0800392 9 Note that consolidation of additional on-site waste to some of these landfills is part of Alternative 4. 6 landfill is ‘uncovered,’ that it’s unclear if asbestos is present at the surface” of the asbestos landfills, and that the west landfill cap is synthetic and was installed in 1994. The main concern with covers is the loss of integrity over time. The EPA must do a better job of describing the integrity of the existing covers for each of the landfills on the CFAC property and define and provide science-based evidence of what would be the dangers of compromising the integrity of the covers by collecting additional samples. In closing, we ask you to step back and reevaluate the adequacy of Preferred Alternative 4 for the CFAC Project. The Flathead deserves a plan that is more protective of our economy - which is driven by our unparalleled and spectacular natural resources including our clean water, clean rivers, the fisheries, and the critical habitats they and we all rely upon to stay healthy. Our Coalition represents approximately 20,000 citizens who have already petitioned the EPA for reconsideration of this draft Cleanup Plan for CFAC. We ask that you speak up quickly and request continued delay in the adoption of the ROD for the CFAC site and/or for serious consideration of amendments to the ROD that support our call for the Preferred Alternative #4 to be replaced with Alternative #6 and modified to include treatment of toxic waste through Solidification and Stabilization10 (S/S) combined with Alternative 6’s option of consolidation of treated but perhaps still hazardous waste in a newly constructed on-site repository meeting substantive RCRA Subtitle C requirements for modern hazardous waste impoundments (and ranked in the draft plan as the highest Alternative for long-term effectiveness and permanence), and for the ground water extraction and treatment called for in Alternative 4C which could reduce the cleanup time of the existing contaminated plume from 35-60 years to 6-9 years and at long last put an end to this ongoing pollution of the Flathead River, as the preferred option . (Shortening the on-going monitoring required from 35-60 years to 6-9 years will be a huge savings that must also be considered.) While the age-old proverb goes trust but verify, we find it may be more appropriate to flip these and say verify before you trust; at least that is what we have been working hard to do. We look forward to hearing from you on this issue and thank you for giving this your immediate attention before the EPA issues a final ROD. Sincerely, The Board of the Coalition for a Clean CFAC , coalition@cleancfac.org Shirley Folkwein (406-890-1659), Phil Matson, Del Phipps, Laura Damon, Mayre Flowers (406- 253-0872), Peter Metcalf Cc • Michael Freeman, Governor’s Office, Natural Resources Policy Advisor • KC Becker, Regional Administrator for EPA’s Region 8 10 Solidification/stabilization (S/S) transforms potentially hazardous liquid or solid contaminants of concern (COCs) present in soil or sediment into environmentally innocuous materials of considerably reduced mobility, thus preventing the hazardous waste from reaching receptors. https://frtr.gov/matrix/Solidification-and-Stabilization/ 7 • Carolina Balliew, Montana Remedial Section C Supervisor, for EPA Region 8 • Matthew Dorrington, Remedial Project Manager, Superfund Division, EPA Region 8 • Sonja Nowakowski, Director of the Montana Department of Environmental Quality • Montana DEQ Project Manager, Richard Sloan • The Montana Environmental Quality Council • Columbia Falls City Council, Mayor Don Barnhart, (no public email available) • Whitefish City Council, Mayor John Mulfield, • Kalispell City Council, Mayor Mark Johnson • Flathead County Commissioners: Brad Abell, Randy Brodehl, and Pam Holmquist • US Senator Jon Tester , c/o Erik Nylund, Regional Director Butte, and Chad Cambell, Regional Director, Kalispell • US Senator Steve Daines, c/o Katie Devlin, Natural Resource Liaison • Confederated Salish and Kootenai Tribal Council, Michael Dolson , Chair • Confederated Salish & Kootenai Tribes: Richard Janssen, Natural Resources Dept. Head • The Montana Natural Resource Damage Program: Doug Martin and Katherine Hausrath • Flathead City-County Health Department: Jennifer Rankosky • Flathead Lake Biological Station, UM, James Elser, Director and Tom Bansak , Associate Director • Western Montana Conservation Commission, Casey Lewis, Executive Director, Mike Koppel, Chair • Flathead Conservation District, Pete Woll, Board Chair, and Samantha Tappenbeck, Resource Conservationist 1 Press Release for immediate release – Contact: Coalition for a Clean CFAC, (Columbia Falls Aluminum Company), Shirley Folkwein , 406- 890-1659, shirlfolk48@gmail.com and Mayre Flowers, 406-253-0872, Mayre@Flatheadcitizens.org August 28, 2024 The Coalition for a Clean CFAC (Coalition) board recently announced its tentative findings from its first “Deep Dive” into the massive 10,000 + page documents that underlie the proposed Columbia Falls Aluminum Company (CFAC) Superfund Cleanup Plan. These finding were presented at public meetings on August 20th and 21st. The proposed EPA (the Federal Environmental Protection Agency) Cleanup Plan for the CFAC site identified, evaluated, and ranked 6 possible alternatives for the cleanup of the toxic waste at the CFAC site. In late June of 2023 the EPA and CFAC announced that they were recommending their choice of Alternative #4 and opened a public comment period on this recommendation in the summer of 2023. EPA is tasked with making the final decision on which Alternative is chosen. That decision is still pending. Alternative #4 calls for essentially leaving the waste in place and constructing a slurry wall around two of the CFAC’s 7 existing landfills to contain some of the highest levels of toxic wastes, including chemicals like cyanide and fluoride, within the slurry wall boundaries. This alternative describes a multi-phase, $57.5 million project to consolidate toxic waste from elsewhere on the site at these landfills and to build the slurry wall around it. The Coalition reviewed many of the research findings underlying this proposal, but concluded that a slurry wall is not a reliable solution in the unpredictable glacial till soils of the CFAC plant site1 nor does the slurry wall and Alternative #4 provide a timely and long-term solution to current and future protection of the Flathead Valley’s water quality, human health, and environment as long as this waste is simply left in place. The Coalition, however, has come to a different conclusion on the proposed alternatives based on our first “Deep Dive.” The Coalition is instead tentatively recommending Alternative #6. Alternative #6 calls for “excavated and consolidated [toxic waste to be placed] in a newly constructed on‐site repository meeting substantive RCRA Subtitle C requirements2 for modern 1 CFAC’s own report shows that a study performed by Roux on Slurry Wall Effectiveness found that of (48) sites studied, ¼ were considered ineffective after (5) years of use. Most from not being properly tied in at the bottom. The key weakness to the slurry wall’s success at the CFAC site hinges on it not being able to reach bedrock and thus rather being tied into the little studied aquitard (a thick clay layer) that may or may not be continuous and which is 125 to 150 feet below the ground’s surface. The Coalition found that research shows this depth is pushing the known limits of this technology. EPA provided (4) examples of slurry walls reaching these types of depths, (3) of which were tied at the bottom into bedrock, not an aquitard. Limited data on slurry wall long term effectiveness is available due to it being a more recent technology. As proposed with little to no treatment of the toxic waste, a slurry wall would likely have to retain the toxic chemicals at this site for up to or more than one hundred years, before it would meet the cleanup standards set by the EPA for Superfund sites to be judged protective of human health and the environment. 2 RCRA Subtitle C establishes federal standards for the generation, transportation, treatment, storage, and disposal of hazardous waste in the United States. 2 hazardous waste impoundments.” As opposed to our initial recommendation where the Coalition, as well as the City Council of Columbia Falls supported off-site transportation of the highly toxic waste left behind at the CFAC site to an off-site commercial hazardous waste facility, we are now tentatively advocating for Alternative #6 which calls for building an on-site certified and highly regulated hazardous waste facility within the 1,340 acre Superfund site, as called for in Alternative #6. An article in the Hungry Horse News recently stated the Coalition supported the building of an “Industrial Landfill” on the CFAC site, but the proper term is more accurately described as a Hazardous Waste Landfill.3 We say tentative, because we want to hear feedback from the community on Alternative #6 and do additional research on this option. We still believe that off-site removal is the best long-term solution, but it has, to date, been dismissed by the EPA as too costly and for other reasons that we are still trying to understand. We also say tentative, in that we will likely call for some additional conditions including that only toxic waste found on the CFAC site, and absolutely no other out of area hazardous waste, could be entombed in this new on-site hazardous waste landfill facility. Additional studies will be needed to also determine the safest location for this facility on the site, and the actual volume of waste that would be contained as current studies of the site provide only estimates of the volume of toxic waste. We have been told by CFAC officials that studies to date have not looked closely at the safest location for an on-site hazardous waste landfill facility or at the number of acres needed for the on-site hazardous waste landfill called for in Alternative #6 . The benefits of Alternative #6 -- the building of an on‐site repository or new landfill meeting substantive RCRA Subtitle C requirements for modern hazardous waste impoundments/landfills, are many: • It is the most protective of all onsite options. • It is much less expensive than off site removal. • The distance to move the material is very short and thus cost effective. • It is the most protective of groundwater as an onsite solution as the waste is no longer in contact with groundwater. • “High and Dry” on-site retention, in a certified protective hazardous waste containment facility, is less prone to failure than the slurry wall option. • A certified protective hazardous waste containment facility provides a more secure location for other on-site excavated materials proposed in Alternative #4. Under Alternative #4 other toxic waste found on site would simply be added to existing landfills with, in almost all cases, no lined bottoms and side-wall liners and caps of questionable age and durability. • The excavation of both the West Landfill and Wet Scrubber Sludge Pond Material is in EPA’s top (6) alternatives. Excavation would not have been considered if the explosive nature of the material made this option too dangerous to perform. • A certified containment facility sits high and dry above ground water in a highly regulated and certified containment facility, thus providing a more immediate and permanent remedy for the toxic waste left behind at the CFAC site. 3 Industrial wastes (aka manufacturing wastes) include a potpourri of non-hazardous materials that are secondary to the production of goods and products. These are not hazardous wastes, which are those deemed to be endemically dangerous or harmful to human health or the environment. 3 • Waste-left in place, buried in the ground, and largely untreated results in long-term on- going potential to harm water quality, human health, and the environment for perhaps hundreds of years. • There is adequate space within the current already designated 1,340-acre Superfund site to locate a certified hazardous waste containment facility and to provide areas for pre- treatment of toxic waste before containment as may be required. Alternative #6 made it to EPA’s list of top (6) alternatives, but wasn’t chosen apparently because it is more expensive than the slurry wall and ranked lower for short term effectiveness. We intend to look more closely at the rating system that EPA uses for ranking preferred alternatives, but at this point find aspects of it to be arbitrary. We do not find that cost should be allowed to be so determinative in the final decision of ranking over which is the best alternative to protect our water quality, health, and environment, as is currently the case. Additionally, short term effectiveness should not be given overriding consideration over long-term effectiveness and permanence in EPA’s ranking system. Over 2,000 residents and 13 organizations joined the Coalition for a Clean CFAC in petitioning and expressing their surprise at the EPA’s choice of Alternative #4 (slurry wall). Together we have been requesting additional time to review data within the massive reports that EPA says best supports Alternative #4. Since 2021, the Columbia Falls City Council had called for off-site removal and a more complete cleanup of the CFAC site as has the Coalition since it was formed in 2023. Recognizing that community acceptance of the proposed Cleanup Plan is very lacking at this point and yet is a very important criteria for the EPA to achieve in making a final Record of Decision, the EPA is at least for now supporting independent community efforts to do more study in hopes, we understand, that more community consensus can be achieved in support of a final cleanup plan alternative. It is important for the community and CFAC to understand that the independent advisor now working with the Coalition under a federal TASC4 program did not suggest or endorse any recommendations or conclusions made by the Coalition. The Coalition’s conclusions and recommendations are solely our own and not in any way those of the TASC consultant. The sole role of the independent advisors under the TASC program is to help the Coalition/Community locate information on questions we have and to help us understand what some of the complex studies on the CFAC site are saying. Additionally, while a recent 8/14/24 letter from CFAC to the EPA complains of the EPA’s delay in issuing a final decision, EPA is also tasked with assuring that there is community acceptance of proposed cleanup plans. Over 700 pages of comments to the EPA on its proposed cleanup plan in July of 2023 as well as petitions to EPA demonstrate that even marginal community acceptance has not been achieved to date. It should also be noted that on 8/13/24 the EPA was sent a letter from the Confederated Salish & Kootenai Tribes expressing their concerns with the proposed plan and the need for the EPA to provide more time for the Tribes to do additional research and provide comments on the proposed cleanup plan. 4 The national Technical Assistance Services for Communities (TASC) program provides independent assistance through an EPA contract to help communities better understand the science, regulations and policies of environmental issues and EPA actions. https://www.epa.gov/superfund/technical-assistance-services-communities- tasc-program 4 The Coalition has identified two more “Deep Dives” they hope to lead in September and October before releasing our final findings, and encourage the community at large to weigh in on these as well. Our next set of community engagement sessions are scheduled for September 18th-19th at a location still to be finalized. The focus of the September “Deep Dive” will be a closer look at long-term contamination issues and how the six alternative cleanup plans address, or fail to address, the cleanup of the existing contaminated plume of groundwater at the site, and impacts to the Flathead River’s water quality, aquatic life, and other impacts to wildlife in the area. In October we are considering a deeper dive into a look at potential long-term health effects and potential future uses of the site. Meanwhile we welcome the community’s questions and as time permits would also welcome the opportunity to present and discuss our current findings with community groups. We hope to post a video of our recent community outreach session on our web site. Visit the Coalition’s web site at https://cleancfac.org/ For more information, please email coalition@cleancfac.org