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HomeMy WebLinkAboutDERR-2024-011012 195 North 1950 West Mailing Address: P.O. Box 144840 Salt Lake City, UT 84114-4840 Telephone (801) 536-4100 ) 359-8853 (801) 536-4284 www.deq.utah.gov Printed on 100% recycled paper State of Utah SPENCER J. COX Governor DEIDRE HENDERSON Lieutenant Governor Department of Environmental Quality Kimberly D. Shelley Executive Director DIVISION OF ENVIRONMENTAL RESPONSE AND REMEDIATION Brent H. Everett Director ERRC-142-24 September 23,2024 John Allison Bureau of Land Management 2370 Decker Lake Boulevard West Valley City, Utah 84119 RE: Submittal of Draft-Final Engineering Evaluation/Cost Analysis (EE/CA) for the Stockton Northeast Parcel for Public Comment Dear Mr. Allison: The Division of Environmental Response and Remediation (DERR) and the Utah Attorney -Final Engineering Evaluation/Cost Analysis (EE/CA) for the Stockton Northeast Parcel, formerly known as Operable Unit 5 of the Jacobs Smelter Superfund Site. The DERR has the following general comments on the document: In January of 2024, the EPA released updated lead guidance that may have implications on the recreational/industrial clean-up levels chosen for the site. The Draft EE/CA uses an outdated preliminary remediation goal to calculate the remediation clean-up level of 3,000 mg/kg of lead. Attached please find comments specific to the State Applicable or Relevant and Appropriate Requirements (ARARs). If you have any questions please call me at (385)391-8127. Sincerely, Maureen Petit, Project Manager Division of Environmental Response and Remediation MP/lg Enclosures(s): DERR Comments on Draft EE/CA Page 2 Utah Division of Environmental Response and Remediation Comments on Draft EE/CA I. Introduction. (EE/CA) was published for public comment on August 21, 2024. Prior to publishing the EE/CA, BLM invited the State of Utah (State) to submit Applicable or Relevant and Appropriate action alternatives include: (1) Alternative 1: No action; (2) Alternative 2: Removal and disposal of wastes off-site at approved facilities; and (3) Alternative 3: Consolidation/covering wastes in an on-site repository. Draft EE/CA, pg. 52. On July 26, 2024, the State submitted ARARs to BLM that were applicable or relevant and appropriate to remedial action Alternative 2 and Alternative 3. In the draft EE/CA, BLM recommended removal action Alternative 2, removal and off-site disposal of wastes at approved facilities. Draft EE/CA, pg. 73. However, BLM excluded certain State ARARs from the draft EE/CA despite recognizing that such ARARs may be applicable. Specifically, BLM excluded State ARARs found in Utah Admin. Code R315-262 and R315-263 governing the pre- transportation and transportation of hazardous waste, which are intended to protect human health and the environment when hazardous waste is prepared for and transported off-site. For the reasons below, the State urges BLM to include the State ARARs and/or the federal equivalents, governing hazardous waste pre-transportation and transportation. See Attachment 1 (demonstrating the ARARs submitted by the State and emphasizing the pre-transportation and transportation ARARs that BLM excluded from the draft EE/CA in bold). II. State ARARs for Alternative 2 Were Erroneously Excluded from the Draft EE/CA. The State recognizes that certain quantities of waste present at Jacobs Smelter OU5 may constitute Bevill-exempt waste under 42 U.S.C. § 6921(b)(3)(A)(ii). However, the State also recognizes that certain quantities of waste present at Jacobs Smelter OU5 may not constitute Bevill-exempt waste, may fail TCLP, and may harm human health and the environment if improperly managed. Indeed, the draft EE/CA recognizes this possibility: Transportation of a smaller fraction of wastes potentially determined hazardous would likely require compliance with federal and state ARARs for hazardous waste, and require special training, certifications, placarding, and transportation requirements. Draft EE/CA, pg. 63. Yet, the ARARs chosen by BLM are devoid of State regulations intended to address the pre-transportation and off-site transportation of hazardous waste. The ARARs are similarly devoid of federally equivalent ARARs intended to address pre-transportation and off-site transportation of hazardous waste. Page 3 III. Justification for Including State ARARs Excluded from Draft EE/CA. Under 42 U.S.C. § 9621(d)(1), remedial actions must cleanup releases or control further releases in a manner that, at a minimum, assures the protection of human health and the environment. Excluding State ARARs and federal ARARs governing pre-transportation and transportation of hazardous waste off- human health and the environment under Alternative 2. Those ARARs should be included because (1) BLM is a generator, (2) BLM is a transporter, and (3) the draft EE/CA failed to include federal ARARs for pre-transportation and transportation. a. BLM is a Generator. Under Utah Admin. Code R315-260- act or process produces hazardous waste identified or listed in Rule R315-261 or whose act first causes a hazardous waste to become subject to regulation . (Emphasis added person who removes hazardous waste from a manufacturing process or unit [. . .] will be jointly and severally liable, along with the owner and operator of the [. . .] unit and the owner of the Fed. Reg. 72026-27 (Oct. 30, 1980). A March 2024 soil sample from the Muerbrook Mine waste pile exceeded the TCLP limit for lead indicating that at least some of the excavated waste may be characteristically hazardous. Draft EE/CA, pg. 58. Alternative 2 will involve BLM excavating an estimated 5,390 loose cubic is causing the hazardous waste to become subject to regulation because BLM is removing hazardous waste from a unit. Accordingly, BLM is a generator and the pre-transportation ARARs applicable to generators under Utah Admin. Code R315-262 apply to Alternative 2. See Attachment 1. b. BLM is a Transporter. Under Utah Admin. Code R315-260-10(157), a trans - under Utah Admin. Code R315- the transportation requires a manifest under Rule R315--263-10(a). Moreover, 42 U.S.C. § 9621(e)(1) limits the exemption from administrative requirements to actions conducted entirely onsite. (Emphasis added). As the March 2024 sample demonstrated, the site may contain characteristic hazardous waste. Alternative 2 will require BLM to transport such hazardous waste to the Grassy Mountain -hazardous) landfill cells and three hazard -site facility actions will not be conducted entirely onsite. Id. Furthermore, BLM acknowledges transportation turnkey services for both transport and disposal that would include the waste manifest services as Page 4 Accordingly, BLM is a transporter and the transportation ARARs applicable to transporters under Utah Admin. Code R315-263 apply to Alternative 2. See Attachment 1. c. Federal Pre-transportation and Transportation ARARs Were Similarly Excluded. The remedial action must comply with state regulations that are more stringent than federal requirements and attain such legally applicable or relevant and appropriate regulations. 42 U.S.C. § 9621(d)(2)(A)(ii). Moreover, EPA generally considers state regulations promulgated pursuant to federally delegated programs to be federal requirements. 55 Fed. Reg. 8742 (Mar. 8, 1990). While the State ARARs governing pre-transportation and transportation of hazardous waste were excluded, the draft EE/CA similarly excludes the federal equivalents. The draft EE/CA demonstrated that BLM was able to qualify the inclusion of State ARARs in the event that the federal equivalents were more stringent than the State ARARs. See Draft EE/CA, Table 2 (providing that Utah Admin. Code R315-264-554 draft EE/CA does not include, and then qualify, State ARARs for pre-transportation and transportation of hazardous waste. Again, BLM recognized that removal and off- compliance with federal and State ARARs for hazardous waste, and require special training, . 63. Yet, neither the State ARARs nor the federal ARARs governing certifications, placarding, and transportation are included in the draft EE/CA. Accordingly, even if BLM determined the federal ARARs to be more stringent than the State ARARs, the federal ARARs should have been included in lieu of the State ARARs. IV. Conclusion. Based on the foregoing, the State strongly urges BLM to include State ARARs and/or the federal equivalents governing the pre-transportation and transportation of hazardous waste off-site as contemplated by remedial action Alternative 2 and as included in Attachment 1. Attachment 1: State ARARs for Remedial Action Alternative 2* *Pre-transportation and Transportation ARARs not included in the draft EE/CA are bolded Requirement Citation Determination Type Description Comment Air Quality Air Pollution Prohibited UAC R307-102-1(1) UAC R307-101-2 Applicable Action Emission of air pollutants in sufficient quantities to cause air pollution defined in R307-101-2 as “the presence of an air pollutant in the ambient air in such quantities and duration and under conditions and circumstances, that are injurious to human health or welfare, animal or plant life, or property…” is prohibited. This regulation functions as a blanket prohibition on the creation of air pollution and is intended to address circumstances not addressed elsewhere in the rules. For example, controls should be implemented to prevent air pollution from exposed soil following removal, wind-blown dust from staging piles, etc. Visible Emission Standards UAC R307-201-3(4), (5) and (6) Applicable Action Establishes visible emission standards: no visible emissions from gasoline powered engines, 20% opacity limit for diesel engines manufactured after January 1, 1973, and 40% opacity limit for diesel engines manufactured before January 1, 1973. Emissions from remedial operations must meet the visible emission standards. Automobile Emission Control Devices UAC R307-201-4 Applicable Action Requires motor vehicles on which a system or device for the control of crankcase emissions or exhaust emissions is installed or incorporated, shall maintain the system or device in operable condition and shall use it at all times that the motor vehicle or motor vehicle engine is operated. Motor vehicles used in remedial actions shall use appropriate systems or devices to prevent crankcase or exhaust emissions at all times. Fugitive Dust UAC R307-205- 5(2)(a) and (b) Applicable Action (a) Any person engaging in clearing or leveling of land greater than one- quarter acre in size, earthmoving, excavation, or movement of trucks or Applicable to the clearing, leveling, or excavating dirt, which should be conducted in a construction equipment over cleared land greater than one-quarter acre in size or access haul roads shall take steps to minimize fugitive dust from such activities, including watering, chemical stabilization of potential fugitive dust sources or other equivalent techniques. (b) the owner or operator of any land area greater than one-quarter acre in size that has been cleared or excavated shall take measures to prevent fugitive particulate matter from becoming airborne, including planting vegetative cover, providing synthetic cover, watering, chemical stabilization, wind breaks or other equivalent methods. manner that minimizes fugitive dust. Environmental Response and Remediation Source Elimination UAC R311-211-2 Applicable Action The initial step in corrective actions implemented at CERCLA sites is to take appropriate action to eliminate the source of contamination either through removal or appropriate source controls. Remedial actions should eliminate the source of contamination either through removal or appropriate source control. Cleanup Standards Evaluation Criteria UAC R311-211-3 Applicable Action Criteria for the development of cleanup standards on a case-by-case basis include: the impact or potential impact of the contamination on the public health, the impact or potential impact of the contamination on the environment, economic Applicable to cleanup for contamination that remains after source elimination. considerations and cost effectiveness of cleanup operations, and the technology available for use in cleanup. Prevention of Further Degradation UAC R311-211-4 Applicable Action Requires levels of contamination in groundwater, surface water, soils, or air not be allowed to degrade beyond existing contamination levels. Applicable to cleanup at CERCLA sites. Cleanup Standards UAC R311-211-5 Applicable Chemical/Actio n (1) Establishes minimum cleanup standards for CERCLA sites, such as using MCLs for water, using appropriate air quality standards established under the Federal Clean Air Act, and using other standards as applicable. (2) Cleanup levels below minimum cleanup standards may be established on a case-by-case basis using R311-211-3 and R311-211-4. (3) If applicable minimum standards cannot reasonably be achieved, cleanup levels will be determined on a case-by-case basis utilizing R311- 211-3 and R311-211-4 and the following factors: (a) quantity of materials released; (b) mobility, persistence, and toxicity of materials released; (c) exposure pathways; (d) extent of contamination and its relationship to present and potential surface and ground water locations and uses; (e) type and levels of background contamination; and (f) All alternatives shall set the minimum cleanup standards for CERCLA sites using this rule. other appropriate relevant standards and factors. Significance Level UAC R311-211-7 Applicable Chemical/Actio n (1) Where contamination is identified that is below minimum cleanup standards, the cleanup standard will be established using R311-211-3 and will be set between background and the observed level of contamination. If it remains, it becomes the significance level. (2) Should continue monitoring identify contamination above the significance level, the criteria of R311-211-3 will be reapplied in connection with R311-211-4 to re- evaluate the need for corrective action and determine an appropriate cleanup standards. To be observed while setting cleanup standards at CERCLA sites. Waste Management and Radiation Control Stabilization of Releases UAC R315-101-2(a) Applicable Action Appropriate action should be taken to stabilize a release site either through source removal or source control. Applies where a site is not cleaned up to background, but the work plan requirement is inapplicable as it is administrative. Principle of non- degradation UAC R315-101-3(a) Applicable Action/Chemica l Prohibits increasing the mass of contaminants in the source area. Levels of contaminants in groundwater shall not increase beyond existing levels of contamination at a site. Applies where a site is not cleaned up to background. Human Health and Ecological Risk Evaluation Criteria and Risk Assessment UAC R315-101-5 Applicable Action Establishes standards for conducting a risk assessment using a conceptual site model, evaluating the following: identification, concentration and distributed or any hazardous constituents; fate of contaminants of interest and any pathways of transport of contaminants of interest; any potential exposure routes; human receptors, and ecological receptors. Applies where a site is not cleaned up to background. Corrective Action UAC R315-101- 6(a)(1) Applicable Chemical Corrective action is required at a site when the level of risk present is greater than 1x10-4 for carcinogens or hazard index greater than one for non-carcinogens; ecological effects are significant; or groundwater contamination is exceeded on or off- site or residual contamination poses a potential threat to groundwater. Applies where a site is not cleaned up to background. Contents of Site Management Plan, Land Use Controls, Environmental Covenants, Restrictions, Controls and Conditions UAC R315-101-8(f) An Environmental Covenant. Applicable Action Requires an environmental covenant for any site contaminated with hazardous constituents not cleaned up to or below background levels. Applies where a site is not cleaned up to background. General Hazardous Waste Generator Requirements UAC R315-262- 10(a)(3) Applicable Action A generator shall not transport, offer its hazardous waste for transport, or otherwise cause its hazardous waste to be sent to a facility that is not a designated facility, as defined in Section R315- 260-10, or not otherwise Hazardous waste shall be disposed of at a facility designated to receive hazardous waste. authorized to receive the generator's hazardous waste. Hazardous Waste Determination and Recordkeeping UAC R315-262-11(a) through (g) Applicable Action A person who generates a solid waste, as defined in Section R315- 261-2, shall make an accurate determination as to whether that waste is a hazardous waste in order to ensure wastes are properly managed according to applicable regulations. Such a determination shall be made according to R315- 262-11(a) through (g). A hazardous waste determination shall be completed for all solid wastes generated at the site. Hazardous Waste Generator Requirements UAC R315-262-13 Relevant and Appropriate Action Requires hazardous waste generators to make a monthly determination of their generator category based on whether it generates acute and/or non-acute hazardous waste by using the formulas in R315-262-13(a) and R315-262-13(b) and Table 1 contained in R315-262-13, and based on the amount of hazardous waste generated (very small quantity, small quantity, or large quantity) so that the independent substantive requirements of R315-262-10 may be met, based on the generator category. Applies if hazardous wastes are generated. Manifest Requirements Applicable to Small and Large Quantity Generators UAC R315-262-20(1) UAC R315-262-22 UAC R315-262-23(a) UAC R315-262-24(a) UAC R315-262-25 Relevant and Appropriate Action Requires a generator who transports a hazardous waste for offsite treatment, storage, or disposal to prepare a manifest with enough copies (R315-252-22) for generator, transporter, owner/operator of Applies if hazardous wastes are transported off-site. UAC R315-262-27 facility, and another to be returned to generator); R315-262-23 (generator to sign manifest by hand, obtain handwritten signature of initial transporter and date of acceptance, and retain one copy); R315-262-24 (electronic manifests may be used if enforceable electronic signatures under R315- 262-25 are obtained and may be transmitted electronically); R315- 262-27 (certification statements required as to being a large or small quantity generator). Pre-Transport Requirements – Packaging UAC R315-262-30 Applicable Action Establishes standards for generators transporting hazardous waste or offering hazardous waste for transportation off-site, including packaging the waste in accordance with the applicable DOT regulations on packaging under 49 CFR parts 173, 178, and 179 Applies if hazardous waste is taken off-site. Pre-Transport Requirements – Labeling UAC R315-262-31 Applicable Action Requires generators to label each package in accordance with the applicable DOT regulations on packaging under 49 CFR part 172 before transporting hazardous waste or offering hazardous waste for transportation off-site Applicable if hazardous waste is taken off-site. Pre-Transport Requirements – Marking UAC R315-262-32(a) Applicable Action Requires a generator to mark each package of hazardous waste in accordance with the applicable DOT regulations on hazardous materials under 49 CFR part 172 before Applicable if hazardous waste is taken off-site. transporting or offering hazardous waste for transportation off-site Pre-Transport Requirements – Placarding UAC R315-262-33 Applicable Action Requires a generator to placard or offer the initial transporter the appropriate placards according to DOT regulations for hazardous materials under 49 CFR part 172, subpart F before transporting hazardous waste or offering hazardous waste for transportation off-site Applicable if hazardous waste is taken off-site. The Manifest System UAC R315-263-20(1) Applicable Action Prohibits a transporter from accepting hazardous waste from a generator unless the transporter is also provided with a manifest form; EPA Form 8700-22, and if necessary, EPA Form 8700-22A; signed in accordance with the requirement of Section R315-262-23, or is provided with an electronic manifest that is gotten, completed, and transmitted in accordance with Subsection R315- 262-20(a)(3), and signed with a valid and enforceable electronic signature as described in 40 CFR 262.25. Applicable if waste is taken off- site. Compliance with the Manifest UAC R315-263-21(a) Applicable Action Requires a transporter to deliver the entire quantity of hazardous waste which the transporter has accepted from a generator or transporter to the designated facility, alternate designated facility, or the next designated transporter. Applicable if waste is transported off-site. Immediate Action UAC R315-263-30(a) Relevant and Appropriate Action In the event of a spill of hazardous waste, the person responsible must immediately take appropriate action to minimize the threat to human health and the environment. Relevant and appropriate in the event hazardous waste or material is spilled. Spill Clean Up UAC R315-263-31 Relevant and Appropriate Action Requires the person responsible for the material at the time of the spill to clean up the spilled material and any residue or contaminated media or other material result from the spill so that the spill material, residue, or contaminated media no longer presents a hazard to human health or the environment. Relevant and appropriate in the event hazardous waste or material is spilled. Compliance with Department of Transportation Regulations UAC R315-263-34 Applicable Action Requires transporters of hazardous waste to comply with the pertinent regulations of the U.S. DOT governing the transportation of hazardous materials for both interstate and intrastate shipments included in Subsection R315-263- 34(a)-(i). Applicable if waste is transported off-site. General Waste Analysis UAC R315-264-13 Relevant and Appropriate Action If any hazardous waste is treated, stored, or disposed, a detailed chemical and physical analysis of a representative sample of the wastes should be obtained so that such waste may be disposed of appropriately. Relevant and appropriate if hazardous waste is stored prior to off-site disposal. Staging Piles Applicable Action The standards and design criteria of staging piles shall comply with the following: Should be observed when excavated soil is staged prior to off-site disposal. UAC R315-264- 554(d), (h), (k) (i) The staging pile shall facilitate a reliable, effective and protective remedy; (ii) The staging pile shall be designed so as to prevent or minimize releases of hazardous wastes and hazardous constituents into the environment, and minimize or adequately control cross-media transfer, as necessary to protect human health and the environment, for example, through the use of liners, covers, run-off/run- on controls, as appropriate. A staging pile may operate for up to two years after hazardous remediation waste is first placed into a staging pile. A staging pile must be closed within 180 days of the operating term expiring by (1) removing and decontaminating all remediation waste, contaminated system components, and structures and equipment contaminated with waste and leachate; and (2) decontaminating subsoils. Responsibilities for Solid Waste UAC R315-301-3 Applicable Action The owner, operator or occupant of any premises or business establishment shall be responsible for the management and disposal of all solid waste generated or accumulated by the owner, operator, or occupant of the property in compliance with the Utah Solid Applicable to the disposal of waste that does not exceed the TCLP limits for hazardous constituents and is therefore solid waste. Waste Permitting and Management Rules and the Utah Solid and Hazardous Waste Act. Prohibition of Illegal Disposal or Incineration of Solid Waste UAC R315-301-4(1), (2)(a) Applicable Action (1) No person shall incinerate, burn, or otherwise dispose of any solid waste in any place except at a facility which is in compliance with the requirements of Rules R315-301 through R315-320 and other applicable rules. (2) If any solid waste is disposed in a manner not in compliance with the requirements of Rules R315-301 through R315-320, or other applicable rules, the property owner of the disposal site or the person responsible for the illegal disposal or both: (a) shall remove the solid waste from the illegal disposal site to a permitted solid waste disposal facility and, if necessary, shall remediate the site. Applicable to the disposal of waste that does not exceed the TCLP limits for hazardous constituents and is therefore solid waste. Water Quality Construction Storm Water Discharges UAC R317-8- 11.3(6)(e) Applicable Action Use best management practices to control pollutants in storm water discharges during construction or construction activities (clearing, grading or excavating) resulting in disturbance of more than one acre. Also propose stabilization, erosion control, and sediment control measures to control pollutants in storm water discharges that will occur after construction operations To be observed to control the discharge of pollutants from construction into waterbodies, including Rush Lake; Obtaining a permit or undertaking administrative tasks not required. have been completed. Inspect to verify that storm water controls and best management practices are operating effectively.