54 C!ongrt55 of tbt llntttb ga!rt)ington. nl€ 20510 February 26, 2016 Ms. Heather McTeer Toney Regional Administrator, Region 4 Environmental Protection Agency Atlanta Federal Center 61 Forsyth Avenue, SW Atlanta, GA 30303 The Honorable Gina McCarthy Administrator Environmental Protection Agency 1200 Pennsylvania Avenue NW Washington, DC 20460 Dear Madam Administrator and Ms. Toney: We write to express serious concern regarding the Environmental Protection Agency's (EPA) administration of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), otherwise known as Superfund. In particular, EPA's designation of "potentially responsible parties" (PRPs) through an "air deposition" theory of liability appears to rest on questionable legal authority and may set a troubling precedent for all facilities in the United States which generate air emissions subject to the Clean Air Act and other relevant statutes. As you are aware, on September 22, 2014, EPA proposed placing the 35th Avenue site in North Birmingham on the National Priorities List. According to the EPA Hazard Ranking System record that accompanied the proposal, "[a]ir is the primary source of deposition within the 35th Avenue site ... from smokestacks and windblown particles from process fines and other stockpiled materiaL" In conjunction with this air deposition theory, the agency has designated several facilities as PRPs and has informed the facilities that they may be forced to undertake cleanup actions or incur financial liability for costs associated with any cleanup of the site. We are mindful of EPA's repeated attempts to increase the scope of federal regulatory authority, and we fear the application of the air deposition theory to supposed "arrangers" under CERCLA represents a significant expansion of the agency's Superfund enforcement powers. Arranger liability attaches to any person who disposes of hazardous substances,t with "disposal" defined as the "discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any VerDate Nov 24 2008 42 U.S. C.§ 9607(a)(3). 12:59 Jun 22, 2017 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6633 H:\25509.TXT APRIL Insert offset folio 16 here 25509.016 KING-6430 with DISTILLER t55 Page2 February 26,2016 constituent thereof may enter the environment or be emitted into tire air or discharge into any waters."2 A plain reading of this definition demonstrates that, to the extent air emissions may be a factor in determining arranger liability, such emissions must result directly from the discharge of solid or hazardous waste directly into or onto any land or water. In other words, industrial air emissions from lawful sources are to be regulated under the Clean Air Act, not CERCLA. However, EPA seems intent on pressing the air deposition theory in North Birmingham, while having also endorsed the theory in an amicus curiae brief filed recently in the Ninth Circuit Court of Appeals. EPA's legal positions raise serious questions regarding the agency's understanding of its statutory authority. Similar reservations are expressed in the enclosed resolution, adopted jointly by the Alabama House of Representatives and Alabama Senate and approved by the Governor of Alabama on June 9, 2015. The resolution describes the 35th Avenue site proposal and provides that EPA is "attempting to impose a novel and overbroad 'air deposition' theory of Superfund liability which would allow EPA to pursue industrial facilities for contamination at non-contiguous properties on the basis of air emissions which are subject to the federal Clean Air Act and authorized by a valid air operating permit." The resolution notes further that EPA's "broad air deposition theory would allow EPA to order businesses to clean up hazardous contamination within an indefinite area before proving that the business was actually responsible." Thus, we are espt.'Cially concerned with the due process implications associated with this charge. The resolution also suggests that EPA is pursuing the air deposition theory "as an illicit means for funding policy initiatives which are outside its regulatory authority." Indeed, the 35th Avenue site proposal appears to be part of an "environmental justice" initiative for EPA to become a de facto redevelopment authority in Birmingham.3 Tellingly, the proposal follows a 2011 planning document in which EPA announced its intent to "go beyond traditional injunctive relief to stop illegal pollution . . . and, where appropriate and agreed to by defendants, to include Supplemental Environmental Projects ... that provide benefits to communities," as well as to "leverage benefits resulting from enforcement activities." 4 Finally, the resolution describes prior objections to the 35th Avenue site proposal from the Alabama Attorney General and Alabama Department of Environmental Management (ADEM). For example, ADEM repeatedly informed EPA that it did not concur with the proposed listing, as the Attorney General explained in a letter provided 2 3 /d. § 6903(3) (emphasis added). See Environmental Protection Agency, Region 4 Superfund, Annual Report, FY 2014 at 5. Environmental Protection Agency, Plan E/2014: Adt>ancing Em•imnmentalfustice Through Compliance and Enforcement (Sept. 2011 ). VerDate Nov 24 2008 12:59 Jun 22, 2017 Jkt 000000 PO 00000 Frm 00059 Fmt 6633 Sfmt 6633 H:\25509.TXT APRIL Insert offset folio 17 here 25509.017 KING-6430 with DISTILLER 4 56 Page 3 February 26, 2016 to EPA on January 20,2015. Under the 1997 "Fields Memorandum," ADEM's decision to withhold concurrence required EPA to work closely with the State of Alabama prior to formally proposing a site for the National Priorities List. Yet the Attorney General's comment letter indicates that EPA neglected to follow the procedure outlined in the Fields Memorandum, suggesting agency disregard for state coordination and input during the site proposal process. EPA's air deposition theory and corresponding proposal to place the 35th Avenue site on the National Priorities List raise important legal and scientific questions and present substantial risk for businesses that may have little to no responsibility for site contamination. For these reasons, the state Legislature, Governor, and Attorney General for Alabama have each requested EPA to reconsider its position. We believe these requests are justified, and we urge EPA to give them careful attention. Furthermore, so that we may confirm the agency's appropriate understanding of CERCLA and related legal authorities, we request your staff to schedule a meeting with our offices at the earliest opportunity to discuss the concerns raised above and in the enclosed resolution. Yours very truly, Richard Shelby United States Senator United States Senator VerDate Nov 24 2008 12:59 Jun 22, 2017 Sen. James M. Inhofe, Chairman, Committee on Environment and Public Works Sen. Thad Cochran, Chairman, Committee on Appropriations Sen. M. Michael Rounds, Chairman, Subcommittee on Superfund, Waste Management, and Regulatory Oversight, Committee on Environment and Public Works Sen. Lisa Murkowski, Chairman, Subcommittee on the Interior, Environment, and Related Agencies, Committee on Appropriations Jkt 000000 PO 00000 Frm 00060 Fmt 6633 Sfmt 6633 H:\25509.TXT APRIL Insert offset folio 18 here 25509.018 KING-6430 with DISTILLER cc: 57 UNITED STATES ENVIRONMENTAL PAOTEC'nON AGENCY REGION4 ATLANTA FEDERAL CENTER 61 FORSYTH STREET ATLANTA, GEORGIA30303-atl80 MAR 2 9 2016 The Honorable Gary Palmer United Statt:s House ofRcpmontatlves Washinston. D.C. 20SIS Dear Conamsman Palmer: Thank you for your Febnlllly 26, 2016,1etter to the U.S. Environmenlal Protl!clion Apnc:y's AdminiSII'atOI', Gina McCarthy, and myselfreprding the 3Sih Avenue Superfund Sile (Site) Jocall:d in Binnln!Jham, Jefferson County, Alabama. We appreciale your altaltion to this laue, as well as that ofthe Sllte of Alablma (SIIte). Based on our reading of your letter, we undentand you to be raising three conc:erns related to lhe EPA's proposed listing ofthe Site on the National Priorities Listina (NPL) pursuant to the Comprehensive EnviiOIUIIIIIIIal Response, Compensation 111111 Liability Act (CERCLA or Superfimd): (I) lhe Apncy's clesipalion ofPotelltially Responsible Parties (PRPs) duougb an"aircleposltlon" theory of liabilhy; (2) the AFRCY'• eft'oaU related to enYironmentsl justice; and (3) the Agency's c:oordinstion with the Slide prior to and following proposal of the Site to the NPL. The EPA believes that it is critical that the Stste and all oflhe pllties involved undersllnd that the listing of a site on the NPL 111111 enfon:cment against PRPs under any type of liability theoly are separate 111111 distinct aclivltles based on different 8Uiborities under Superfbnd. Superfund liability is riot considered when evaJuatina a site for listing on the NPL, nor is liability established or apportioned based on the decision to propose or finalb.e a site on the NPL. With respect to your c:oncems about the EPA's enfim:ement approach aodlor theories of liability against any PRP asaociated with the Site, unfortunately the EPA cannot engage in any level of discussioas with tb1n1 parties, includlag members of Congress, as articulated in the Memorandum fiom Granfa Y. Nakayama, dated March 8, 2006, 111111 titled "Reslrictlons on Communicatins with Outside Parties Regarding Enfon:ement I am able ro addreu the remaining ooncems raised in your leiter, as wen as any additional qur:stkms you may have reprdins the enviiOIUIIIIIIIal c:ondltions 111111 the EPA response etTorts to c1a1c at tho Site. On September 22, 2014, the EPA proposed to include the 3Sih Avenue Site on the NPL. The identification of sites for liltina oa the NPL is lnteuded to plde the EPA in: a) determining which sites Wllmlllt fUrther investigalion to assess the na&ure 111111 ex11mt of the human heallh and environmental rilles usociated with a site; b) identlfyina what CERCLA-tinanced remecllal actions may be approprilte; c) notifyina the public of sites the EPA believes Wllmlllt fUrther investigation; 111111 d) serving notice to PRPs 1bat the EPA may initiate CERCLA-financed remedial actioa. As the D.C. Cln:ult Cowt of Appeals bas held, lhe NPL serves primarily as an inf'ormllioaa1 tool for use by the EPA in ideotifyins, quickly 111111 inexpensively, those sites that appear to preseo1 a sianlfk:ant risk to public health or the environment. See CIS Cgrp. v EPA. 759 F.3d S2, S6 (D.C. Cir. 2014); Can!s Chern· CQ y, EPA. 39S F.3d 434,441 (D.C. Clr. 2005); Wash, State Dep't of 1!'11111!. y. EPA. 917 F.2d 1309, 1310 (D.C. Clr. 1990). In order to determine whether a site may be proposed or added to the NPL, the EPA uses the Hazanl R.anking System {HRS). Sites that score sreater than 28.50 based on the HRS are eligible for the NPL. The HRS score . VerDate Nov 24 2008 12:59 Jun 22, 2017 Jkt 000000 PO 00000 Frm 00061 Fmt 6633 Sfmt 6633 H:\25509.TXT APRIL Insert offset folio 19 here 25509.019 KING-6430 with DISTILLER lniOmei-(URI.I• htlp--pw 58 sciendfically reflects 11n - e n t of the rela&ivelbn:at to buman boaltb and the enviroament posed by the relase artbreatened relase of hazardous substances at a site. 1'he 3stl' A - site's score at the time of pmpoal to the NPL was SO.OO. Consistent with CERCLA, tbis score relied IOiely on the Sile's eoll exposure palbway, due to widespread eoll c:ontamiNdon In dte residential neiJJhborlloods ofFalnnont, Collepvllle llld Harriman Parle. This was bued on results ofsampllna events conducted In 2013 and 20141n tbasa neigbborlloocls that revealed elevated conc:enll'atlon of lead, ll'llllic and 8enJio (a) pyrene. Environmenlal justice c:oneems an not a part of a site's HRS score or used to qualifY a sile for NPL llstlna. In the HRS 111pportiq materials the EPA Identified several facilities 11 the possible eoun:es ofcmlllminatlon detected in residential soH due to lhclr proximity to the Area ofConlllmination (AOC). the type ofpllnl. the JII'OCCIIICI utilized at the plant. and the history of releases conlributin& to the comminafed eontaminltion of the AOC over the period of IMIIY years. ldentifk:atlon of potential souroes of llClllllminllio is a typical part ofHRS JIIIIPOdinlldllerials. This does not. bo-ver. establish liability. Liability is Cllllablisbed at a sile tbrou&h a sopu111r1 process usin& different CERCLA authorities. While the AaencY'slnvatlption is stiU underway, the pNIIIICCI of c:ontaminllllts In the residential is potentially due to a lllllllber of routes. includin& use of solid waste 11 fill material, .stonn water runoff ftom facilities, continued miplion of contaminlnts ftom &equeat floodin& in tbe area, and facility air emissions. These emissions oc:curnd prior to, in ablence ofor In lllllllCIIIdanc of Clean Air Act permits. A public comment period on the proposed NPL listlnJ was held ftom Seplanber 22. 2014 to January 22, 201S. The EPA received numerous public comt1ICIIlts bod! in support llld in opplllition to allnsl listin& includiaa letten ftom the Allbama Deparlment ofEnvironmentsl Manapment (ADEM) and the Alabama Aaomey Oenenl.ln dtole lea&n, the State requested revi- of the EPA'• decision tluoqh the dilpula resolution process outlined in the July 2S, 1997 OSWER memonndum tided, "Coonninatiq with the States on National Priorities Lilt Dllcisions -Issue Resolution Process.• Prior to lllllkin& a finalliltin& decision, the EPA must consider all c:onunent1 nceived on a proposed NPL sile and respond to tipificant OOIIIIIICIIIIIIn wr1t1ns. After COIIIideration of all c:omments, if the Site still qualifies for listlna on the NPL, the EPA will -1eome informal deliberations wldl ADEM. Dependlna on the outcome of thole delibenations, 11 appropriale, lbe EPA wiU follow the process outlined In the above "laue Resolution Proc:ea" memorsnclum. The EPA is committed to consuhatlons with the State prior to makin& aay filture decision, for CllCIIIIplo, to add the Sile on the NPL lhrough a llnsJ rule, to punue additional clelnup appvacbes, or to withdraw the proposal to list the Sile. I believe that wc share the common anal to proteCt and Improve the quality of life for Alablma residents. As such, the EPA welcomes any fbrtber dlseuaslons on the proposed listin& ofthe 3stl' Aveaue site on the NPL or any other U . related to the environmental conditions and oqoin& EPA respell* eft'orta at the Site. I have directed my stsffto arranae for a meetina with your office at your If you have additional questions P ' - contact Allison W'1111at (404) 562-8346. Sincerely, Regional Admlnislrator cc: Mathy Stsnislaus, OLEM VerDate Nov 24 2008 12:59 Jun 22, 2017 Jkt 000000 PO 00000 Frm 00062 Fmt 6633 Sfmt 6633 H:\25509.TXT APRIL Insert offset folio 20 here 25509.020 KING-6430 with DISTILLER Franklin Hill, Superfund Division