MANKO GOLD& KATCHERTo Whom It May Concern: This firm represents Waste Management Disposal Services...

MANKOGOLD&KATCHER

SUITE 500401 CITY AVENUEBALA CYNWYD, PA 19004

(610) 660-5700(610) 660-5711 FAX

JOSEPH M. MANKOMARC E. GOLDBRUCE S. KATCHER*KENNETH J. WARRENKERMIT L RADERNEILS.WITKES'MicHAEiM. MELOYROBERT D. FoxSTEVEN I MIANOTIMOTHY F. MAILOY*JILL M. HYMANJONATHAN E. RINDE*PAMELA H. WOLDOW*RANDI S. GARNICK*JOHN F. GULLACEBART E. CASSIDY*CYNTHIA A. KING* •MADELEINE H. COZINE*BRENDA Hums GOTANDA*JONATHAN H. SPERGEL*CHRISTINE G. MOONEY*•ALSO ADMITTED INN)

DARRYL D. BORREUICONSULTING ENGINEER

NEW JERSEY OFFICE:SUITE 1111 EVES DRIVEMAW.TON, NJ 08053(609) 596-4062(609) 596-7299 FAX

ANENVIRONMENTALLAW PRACTICE

October 23, 1996

VIA HAND DELIVERYDocket ClerkU.S. Environmental ProtectionAgency - Region in

841 Chestnut BuildingPhiladelphia, PA 19107

Re: Elizabethtown Landfill Superfund Site, West Donegal Township,Pennsylvania, Lancaster County, PennsylvaniaU.S. EPA Docket No. m-96-10-DC_______________

To Whom It May Concern:

This firm represents Waste Management Disposal Services ofPennsylvania, Inc. ("WMDSPI"), formerly known as SCA Services ofPennsylvania, Inc. On Monday, September 23, 1996, notice appeared in theFederal Register that the United States Environmental Protection Agencyproposed entering into a d£ minimis settlement pursuant to Section 122(g)(4) ofthe Comprehensive Environmental Response, Compensation and Liability Actof 1980 as amended ("CERCLA"), 42 U.S.C. § 9622(g)(4) with certainpotentially responsible parties ("PRPs") at the Elizabethtown Superfund Site inWest Donegal Township, Pennsylvania (the "Proposed De MinimisSettlement"). The Proposed Dg Minimis Settlement addresses the CERCLAliabilities of five PRPs: Armstrong World Industries, Inc., P. dayman &Sons, Inc., United Selling Corporation, United Dye Works, L.P., andChargeurs, Inc. (the "Settling Parties"). The Federal Register notice requestedcomments to the Proposed De Minimis Settlement on or before October 23,1996. This letter provides comments on the Proposed De Minimis Settlementon behalf of WMDSPI.

WMDSPI, together with Fruehauf Trailer Corporation, previouslyprovided comments concerning the Proposed De Minimis Settlement by letterdated June 13, 1995 (addressed to Abraham Ferdas) and individually by letter

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Docket ClerkOctober 23, 1996

dated June 30, 1995 (addressed to Joan Armstrong). WMDSPI incorporates by reference thecomments contained in these two letters to the extent that the comments concern the SettlingParties. Copies of these letters are enclosed for your reference.

Very truly yours,

faJonathan H. Spergel

For MANKO, GOLD & KATCHER

JHS/pn/ioon-oisEnclosure

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MANKOGOLD&KATCHER june n, 1995

SUITE 500

(610) 660-5711 FAX

JOSEPH M. MANKOMARC E. GotoRRUCE S. KATCHER'KENNETH ). WARRENKERMIT L RADER

Dmn D. BOKUUI

NEW JERSEY OFFICE:Sum 111

VIA HAND DELIVERYAbraham Ferdas

(610) 660-5700 1 Hazardous Waste Management DivisionU.S. Environmental Protection Agency - Region III841 Chestnut BuildingPhiladelphia, PA 19107

Re: Elizabethtown Landfill Superfund Site,Lancaster County, PennsylvaniaDe Minimis Settlement Proposal___

LUl I —————————————————————————————————————^———————"—————

ROBERT D. Fox jSTEVENT.MIANO TVo,- \* perHac-JILL M. HYMAN uear MI' eraas-DEANE H. BARTLETT _ ISlif RIND?' i Bv General Notice Letter dated May 4, 1995, you set forth on behalf of

A?ency a ProP08*1 to settle the liability of certain parties with respect toMARC L FROHMAN ! the Elizabethtown Landfill Superfund Site in Lancaster County PennsylvaniaEU H NE ' ! (the "SiteM> P "3111 to *e de minimis settlement -provisions of the

BRENwHusrisGoTWDA j Comprehensive Environmental Response, Compensation and Liability Act 42JONATHAN H. S«RGH- ! Tj.s.c. §§ 9 ^ ("CERCLA") (the "De Minimis Settlement Proposal").•AUO AD**™ m N, j This letter provides comments on the De Minimis Settlement Proposal on

j behalf of the following parties: SCA Services of Pennsylvania, Inc. andFruehauf Trailer Corporation (the "Commenting Parties"). The CommentingParties reserve the right to supplement these comments in the event thatadditional information concerning the Site or the De Minimis SettlementProposal is identified.1-2

08053 ! ' In ^ rcSard' Commenting Parties observe that the Agency has not(609) 596-4062 l provided to the PRPs at the Site any information regarding the proposed(609) 596-7299 FAX ' terms of *« P-S Minimis Settlement Proposal, including notably

; allocated shares of Site response costs, applicable premiums andI reopeners.

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c cAbraham FerdasJune 13, 1995Page 2

I. Introduction

First and foremost, the Commenting Parties believe that it is inappropriate for the /Agency to cash-out nine of only twelve generators which it identified as PRPs at a CERCLAmunicipal landfill Superfund site. This is particularly true in the instant case. The Agencydescribes the Site as a municipal and industrial waste landfill which received more than720,000 cubic yards of waste from hundreds of generators during its approximately thirteenyear operational lifetime. By the Agency's own calculations, the waste-in list only accountsfor less than 20% of the waste disposed of at the Site. Notwithstanding this Sitecharacterization, the Agency has identified only twelve parties as the generators allegedlyresponsible for contributing hazardous substances to the Site. Clearly this cannot be thecase. By virtue of the instant De Minimis Settlement Proposal, the Agency now contendsthat 9 of those 12 generators qualify for a de minimis settlement. Under this analysis, threecompanies, which by the Agency's calculations account for approximately 18% of the wastevolume contributed to the Site, are the only non-de minimis parties which allegedlycontributed hazardous substances to the landfill. ^

In addition, for the following reasons, the De Minimis Settlement Proposal fails toconform with CERCLA's statutory mandate regarding the appropriate circumstances underwhich the Agency may enter de minimis settlements with potentially responsible parties, 42

As we explained during the meeting at EPA last week, some of the parties that wereinvolved in the performance of the RI/FS funded independent PRP searchinvestigations. The evidence produced by these investigations shows that, for certainalleged de minimis parties, waste volumes and waste types not accounted for by EPAwere disposed of at the Site. At the present time, we have been unable to secure theapproval of all parties that funded these investigations to release this additionalinformation. We hope to confirm the remaining parties' approval shortly and providethat information to EPA.

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U.S.C. § 9622(g), and is inconsistent with the Agency's own guidance documents designedto implement Section 122(g).3

First, based upon the information provided by EPA to the Commenting Parties, thereis insufficient information regarding the Site to enable the Agency to determine the deminimis status of any' party. Second, EPA has not provided the Commenting Parties with allof the information relevant to either the waste-in volumetric calculation or the terms of the deminimis cash-out. Third, the Agency has not clearly stated defensible and consistentassumptions which EPA's guidance states are necessary to generate waste-in informationsufficient to formulate a de minimis settlement proposal. Fourth, contrary to its owndirectives, the Agency fails to identify any basis for establishing its proposed volumetric cut-off under which it has identified parties as de minimis. EPA's proposed cut-off, relative tothe PRPs identified on the Site's waste-in list, is four times the average cut-off utilized by theAgency for other sites. Fifth, the available information, although insufficient for volumetriccalculations, clearly demonstrates that the relative toxicity or other hazardous effects of thehazardous substances contributed to the Site by the proposed de minimis parties is not"minimal in comparison to other hazardous substances at the facility." 42 U.S.C. §9622(g)(l)(A). Sixth, also contrary to its own directives, the Agency fails to consider theeffect of the proposed de minimis settlement on non-settling parties at the Site. Finally,the necessity of including significant re-openers and a substantial premium (based upon site-specific circumstances) defeats any benefits and is contrary to the objectives of proceedingwith a de minimis settlement in this case at this time.

These factors bring into sharp perspective the inappropriateness of the De MinimisSettlement Proposal for this Site at this time. Therefore, the Commenting Parties requestthat EPA reconsider its proposal to enter into a de minimis settlement at the Site until suchtime as sufficient information is developed in accordance with both the law and EPAguidance.

Rather than prematurely pursuing the De Minimis Settlement Proposal which isinsufficiently supported by available evidence, the Commenting-Parties propose that theAgency encourage participation by the PRPs hi an alternative dispute resolution ("ADR")procedure to facilitate the development of sufficient waste-in information and foster

3 The comments included herein are not intended to exhaustively identify alldeficiencies included within EPA's waste-in calculations for the Site, but rather tofocus upon specific examples of inaccuracies or erroneous assumptions to demonstratethe inappropriateness and unsubstantiated nature of the De Minimis SettlementProposal.

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settlement among the parties. The use of ADR in this case is consistent with the Agency'sown guidance regarding the pursuit of settlement in CERCLA cases. See, e.g.... "StreamlinedApproach For Settlements With De Minlmis Waste Contributors under CERCLA§ 122(g)(l)(A)", OSWER Directive #9834.7-lD (July 30, 1993) (hereinafter "StreamlinedDe Minimis Settlement Guidance") at 5. Indeed, the results of the ADR process may wellshow that certain of the parties named as PRPs by EPA are in fact de minimis and that a deminimis settlement is appropriate for those parties. The Commenting Parties are not opposedto the concept of a de minimis cashout at this Site at the appropriate time based on sufficientinformation.

II. Discussion

A. The Agency Has Identified Insufficient Information to Support the Preparationof the De Minimis Settlement Proposal.

The Agency may enter into a de minimis settlement with a generator-PRP onlyin the event that the quantity and toxic or other hazardous effects of the hazardous substancescontributed by the party to the facility are minimal in comparison to other hazardoussubstances at the facility. 42 U.S.C. § 9622(g)(l)(A). See also Dravo Corp. v. Zuber. 13F.3d 1222, 1225 (8th Cir. 1994). The Agency has incorporated this statutory directive intoits guidance, authorizing settlement under § 122(g) only "with persons who contributed to afacility hazardous substances which are minimal, both in terms of volume and toxicity orother hazardous effects, relative to other hazardous substances at the site." Streamlined DeMinimis Settlement Guidance at 1.

In order to satisfy the relevant statutory requirements, as well as the directivesof the Streamlined De Minimis Settlement Guidance, before proposing a de minimissettlement to a specific PRP, the Agency must develop or otherwise assemble informationsufficient to accurately determine that the quantity and toxic nature of hazardous substancescontributed to the site by that PRP are in fact minimal relative to other hazardous substancesat the site, not only hazardous substances allegedly contributed to the Site by an incompletelisting of EPA-identified PRPs. For this reason, Section 122(g) expressly encouragesAgency participation in de minimis settlements "after the [Agency] has available theinformation necessary to reach such a settlement." 42 U.S.C. §9622(g)(3) (emphasis added).Although the Streamlined De Minimis Settlement Guidance does not require the Agency toprecisely determine waste-in volume for every PRP before proposing a de minimis settlementfor a particular PRP, the Agency must determine the waste contribution'of the prospective deminimis PRP relative to the total volume of waste at the Site. Therefore, as to any party to

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which a de minimis settlement proposal will be offered, the Agency must have adequatelyevaluated the nature of all waste contributions. The Streamlined De Minimis SettlementGuidance recognizes the need for accuracy in this regard by stating that the Agency may"estimate the volume of waste presently at the site [from all sources]" but should "identifythe individual amount of contribution" of the prospective de minimis PRP. Streamlined DeMinimis Settlement Guidance at 1 (emphasis added).

The information identified by the Agency as relevant to the preparation of theDe Minimis Settlement Proposal is insufficient to allow for an evaluation of either therelative volume or toxicity of wastes contributed by the prospective de minimis parties to theSite. As to certain parties, the Agency apparently relied upon nothing more than limitedevidence obtained during certain employee interviews to project waste-in volumes. In thesecases, the Agency appears to have accepted, without significant further investigation,statements by the individual PRP that documentation is not available concerning wastedisposal practices during the time period relevant to the Site, and therefore it should beassumed that waste was not disposed of at the Site. See, e.g.. Armstrong World Industries,Inc. By contrast, other PRPs which also could not identify precise documentation but whichvoluntarily projected past waste volumes based upon recent operational practices areeffectively penalized for their efforts at full disclosure which resulted in the Agency'sallocation of a substantial portion of the quantitative share of responsibility to such PRPs.See, e-g.., Fruehauf Trailer Corp.

The Agency's evaluation of National Standard Company clearly illustrates thedangers inherent in projecting waste-in data without sufficient information. Reviewing theinformation concerning National Standard assembled by EPA and provided to theCommenting Parties, it is impossible to predict with any degree of confidence the quantity ofwaste sent by National Standard to the Site. The Agency's solution to the absence ofsufficient data in the National Standard case is to arbitrarily decide that 5% of NationalStandard's waste generated during the relevant time period was transported to the Site. Byselecting an equally arbitrary, and equally defensible, assumption that 25% of NationalStandard's waste went to the Site, the waste volume allocated to National Standard wouldincrease above EPA's selected cut-off for de minimis treatment at the Site. In the absence ofsufficient supporting information, the Agency can justify neither of the two arbitrarypercentages.

The Agency's guidance documents make clear that all reasonably availablemeans should be pursued to identify waste-in information for individual PRPs before theAgency formulates any settlement proposal. See "Guidance on Preparing Waste-in Lists andVolumetric Rankings for Release to Potentially Responsible Parties (PRPs) Under

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CERCLA", OSWER Directive 9835.16 (February 20, 1991) (hereinafter "Guidance onPreparing Waste-in Lists") at 3, 17. Further, these guidance documents recognize that theabsence of sufficient information may, in appropriate cases, preclude the formulation ofwaste-in lists and preparation of related settlement proposals. Id. at 15. -

Landfills, like the Site, which have accepted municipal waste are recognizedby the Agency as "notoriously difficult sites for producing waste-in information". Id. Incases where accurate waste-in information cannot be assembled, de minimis settlements areinappropriate, since, as the Agency has stated, in the absence of sufficient comprehensiveinformation, entry of a de minimis settlement creates the "risk of settling with parties whoare not truly de minimis." "Methodology for Early De Minimis Waste ContributorSettlements Under CERCLA § 122(g)(l)(A)", OSWER Directive #9834.7-lC (hereinafter"De Minimis Settlement Methodology Guidance"). Accordingly, where as here the Agencyhas been unsuccessful at developing sufficient, detailed information regarding wastecontributions by prospective de minimis parties, a de minimis settlement is inappropriate.

B. The Agency Has Not Provided the Commenting Parties With All InformationAssembled by the Agency Which Is Relevant to the De Minimis SettlementProposal.

EPA's de minimis settlement guidance directs the Agency's Regional staff toprovide to non-settling PRPs all information which the Region relied upon in formulating ade minimis settlement proposal. See Streamlined De Minimis Settlement Guidance at 2;Guidance on Preparing Waste-in Lists at 4, 10; De Minimis Settlement MethodologyGuidance at 9; "Releasing Information to Potentially Responsible Parties at CERCLA Sites",OSWER Directive 9835.12 (March 1, 1990). See also Dravo Corp.. 13 F. 3d at 1228. Infact, the Agency's guidance recommends that waste-in information be provided to PRPs assoon as it is available to allow review and comment, rather than distributing such informationafter incorporation into a de minimis settlement proposal. Guidance on Preparing Waste-inLists at 4. .

In this case, Agency officials have stated that more than seventy interviewswere conducted and approximately 250 Section 104(e) information requests issued.Notwithstanding the provisions of the above-referenced guidance documents, the Agency has 1/provided the Commenting Parties with only a small fraction of this quantity of interviewreports and Section 104(e) responses. In fact, those few interview reports that wereprovided were heavily redacted, to the point that it is impossible to assess the accuracy of theinformation from the interviews that were relied upon by EPA. In addition, as discussedbelow, the Agency's rationale for many party-specific volumetric determinations have not

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been provided. See, e . Armstrong, National Standard. Further, the Agency has providedto the PRPs no information concerning the proposed terms of a de minimis cash-out,including cost allocations, premium determinations, scope of contribution protection or re-openers.

In preparing these comments, the Commenting Parties relied upon theinformation provided by the Agency as comprising the evidence utilized in the preparation ofthe De Minimis Settlement Proposal. The information included within this documentation isclearly insufficient to support the E)e Minimis Settlement Proposal.

C. The Agency's Assumptions in Preparing the De Minimis Settlement Proposalare Neither Consistent, Defensible Nor Clearly-Stated.

As an element of generating waste-in information, the Agency routinelyemploys certain assumptions to interpret ambiguous information. The Agency's guidancedictates that all such assumptions should be defensible, consistent and stated clearly andopenly. Guidance On Preparing Waste-In Lists at 6, 10. The Agency's preparation of theDe Minimis Settlement Proposal does not comply with these requirements.

First, the Agency has not clearly stated several of its necessary assumptions.By way of example, with respect to National Standard Company, the Agency reports that twoformer employees of National Standard, one of whom was employed there from 1964 to1972 and the other from 1965 to 1985, both reported that UDI transported NationalStandard's waste during the terms of their respective employment periods. The Agencyprovides no stated basis for assuming that National Standard's waste was not transferred tothe Site until 1965, notwithstanding the former employee's statement that UDI transportedthe waste from 1964 forward.

The Agency's handling of the National Standard case provides an additionalexample of the failure of the Agency to clearly explain its assumptions. Specifically, theAgency considered independent statements from five witnesses concerning National Standardwhich were not wholly consistent. Without explanation, the Agency concluded, reportedlybased upon these interviews, that 5% of National Standard's wastestream went to the Site.The Agency provides no statement as to basis for this arbitrary selection of a percentage. Ata muiimum, the Agency should rely upon the specific statement of one interviewed witnesswho reports to have personally transported waste from National Standard to the Site for atwo year period. This adjustment alone, even assuming that the Agency's remainingassumptions are all valid, results in the quantity of waste attributable to National Standard

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increasing by greater than a multiple of five, thereby exceeding the Agency's stated cut-offof 6,000 cubic yards for the De Minimis Settlement Proposal.4

In addition, the assumptions employed by the Agency in formulating the waste-in list for purposes of the De Minimis Settlement Proposal are not consistently applied. Byway of example only, the Agency assumes that general plant waste generated by mostcommercial or industrial sources identified on the waste-in list included hazardoussubstances, and that ail waste generated by such parties were mixed; therefore the Agencyincluded the PRP's entire waste volume hi the calculation of waste-in volumes. See, e.g.,Fruehauf Corp., New Standard Corp.

However, the Agency has taken a completely different approach with respectto Armstrong World Industries, Inc. ("Armstrong"). Specifically, the Agency has notconsidered any of the general plant waste generated by Armstrong within its waste-incalculus, notwithstanding that the former site operator, who was hi a position to know,reported that (1) he personally disposed of "miles" of carpeting generated by Armstrong and(2) such carpeting had, to his personal knowledge, been contaminated by acids. Without anyjustification or regard for consistent treatment of PRPs, the Agency has ignored theemployee's statements and failed to consider any general plant waste generated by Armstrongin the waste-in list used for the De Minimis Settlement Proposal. See also Agency waste-incalculation for United Piece Dye Works. This treatment of Armstrong not only contradictsstatements contained within the Agency's guidance documents, id-, Attachment 3 at 2("commercial industrial or institutional trash is hazardous and should be included hi waste-inlists ... unless PRPs can demonstrate otherwise"), but also is contrary to the description ofthe Agency's waste-in analysis contained within the De Minimis Settlement Proposal itself.Joan Armstrong, Memorandum to File, "Methodology and Assumptions Used in PreparingWaste-In List" (May 1, 1995) at 2, Attachment to De Minimis Settlement Proposal. Inaddition, EPA ignores the statement from a former Site employee that, prior to theacquisition of a tank truck by UDI, drums of Armstrong's sludge were disposed of at theSite. (See, report of 4/23/93 interview, transcribed on 4/27/93 at 11.) EPA similarlyprovides no justification for ignoring this very significant evidence.

As a further example of the inconsistency demonstrated by the Agency's use ofassumptions in formulating the De Minimis Settlement Proposal, the Agency has arbitrarilyselected different years as the initial date on which waste was allegedly sent to the Site from

4 The calculation accepts, for purposes of this example only, the Agency'sdetermination that National Standard generated 277.2 cubic yards per month andextrapolates that figure over 24 months (2 years): 277.2 x 24 = 6652.8 cubic yards.

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each respective PRP. Specifically, without direct evidence to confirm that waste was initiallysent by generators to the Site on the date in which the Site commenced operations, theAgency concludes that waste from Amp, Inc., Heritage Metal Finishing, Inc. and GinderCleaners, Inc. was disposed at the Site commencing in 1960. By contrast, without directevidence to support a different conclusion, the Agency contends that waste initially was sentto the Site in subsequent years by other listed generators: State Equipment (1967), UnitedPiece Dye Works (1965), Commonwealth of Pennsylvania (Elizabethtown Hospital) (1965)and New Standard Company (1972).5 There is simply no evidence among the documentsprovided to the Commenting Parties to support these assumptions.

The Agency's use of certain stated assumptions in generating the waste-in listand preparing the De Minimis Settlement Proposal is also not "defensible" as required byrelevant Agency guidance. The Agency, without explanation, has ignored informationestablishing higher waste volumes for certain parties. By way of example, the Agency'ssubfiles reveal many corroborated statements that tank trucks containing residues fromArmstrong's latex sludge were flushed with water at the Site on a weekly or bi-weekly basis.Such wastewater reportedly was released directly to the ground surface at the Site, andcontaminated soils were generally excavated and placed in the landfill. Despite thisconclusive evidence of additional volume, the Agency does not attribute to Armstrong anywaste generated in this manner for purposes of the waste-in calculation.6

5 New Standard's response to the Agency's Section 104(e) request for information doesnot state that waste from New Standard was not sent to the Site prior to 1972. Thelandfill billing ticket, which suggests that UDI initially hauled waste from NewStandard in March of 1972, does not constitute conclusive evidence of that fact whenconsidered in the context of regional industrial waste disposal practices during the1960s and New Standard's own Section 104(e) response.

6 In addition, in the absence of any direct information regarding the frequency at whichthe three yard container at the Crippled Children's Hospital in Elizabethtown waspicked up, the Agency assumes, inexplicably, that the container was emptied on amonthly basis. Not only is it unlikely that the hospital's waste container would beemptied only once in an entire month, the dollar amount of the monthly billing fromUDI during the 1972 to 1973 period demonstrates that the pick-up frequency musthave been at least weekly. Compare Elizabethtown Hospital billing rate ($50/monthfor 3 cu. yd. containers) with State Equipment Co. billing rate ($46.80/month forbi-weekly pick-ups by UDI of 10 cu. yd. containers).

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Another example which demonstrates that the Agency's assumptions fail thedefensibility standard articulated in the EPA guidance is found in the Agency's volumetriccalculation for Heritage Metals Finishing, Inc. ("Heritage"). The Agency calculates thewaste-in volume for Heritage over the entire operational life of the Site by extrapolation fromthe landfill tickets obtained for Heritage from 1972 and 1973. Since the Site closed in Julyof 1973, the Agency only takes into account that portion of Heritage's 1973 waste volumeidentified on UDI's billing record through July of that year. The Agency then averages thetwelve month volume for 1972 with the seven month volume for 1973 to calculate an averageannual volume for extrapolation over the thirteen year timeframe. The Agency inexplicablyfailed to adjust the 1973 data to project the seven month level of volume over the twelvemonth period, and therefore calculates an erroneously low annual average.7 By performingthe averaging calculation and extrapolation accurately, the Commenting Parties haveconcluded that the total waste volume attributable to Heritage exceeds the 6,000 cubic yardde minimis threshold established for the De Minum's Settlement Proposal.8

The foregoing examples are not intended to comprehensively identify thedeficiencies hi assumptions employed by the Agency in preparing the waste-in list. Rather,these examples illustrate the nature of the inaccuracies and inconsistencies in the Agency'sapproach which result from the insufficiency of information relied upon. Even the limitedclarifications provided above by themselves demonstrate that two of the nine partiesidentified by the Agency for de minimis treatment should not qualify for the De MinimisSettlement Proposal based upon the Agency's proposed 6000 cubic yard threshold. The De

7 This example does not even raise the separate, but significant, question regarding thedecision to average 1972 and 1973 to extrapolate over the entire term rather thanviewing the complete calendar year of 1972 as more representative of Heritage's priorwaste generation patterns.

8 The Agency determined that UDI hauled waste from Heritage 64 times in 1972 and21 times from January through July of 1973. Extrapolating the 1973 collectionfrequency over an entire year would result in an annualized value for 1973 of21 x 12/7 = 36. The average annual pick-up frequency for 1972 and 1973 is thencalculated as (64 + 36)/2 = 50. Calculating waste volume, assuming that EPA'sremaining assumptions are valid, proceeds as follows:

1960-1971 - 50 p/u's x 11 years = 550 p/u's1972 -64 p/u's1973 - 21 p/u'sTotal= 635 p/u's x 10 cubic yards/p/u = 6,350 cubic yards

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Minimis Settlement Proposal builds upon the Agency's erroneous assumptions and thereforeis itself without sufficient support.

D. The Agency Provides No Justification For Its Excessive and ArbitraryVolumetric Cut-Off.

The Agency's de minimis guidance documents clearly state that Regional staffmust explain the basis for, and identify the factors considered in, establishing a particularvolumetric threshold for eligibility to participate in a de minimis settlement. See, e.g..Streamlined Pe Minimis Settlement Guidance at 3. However, the Agency has disregardedthis directive and provided absolutely no statement of justification for establishing 6,000cubic yards as a volumetric threshold for participation in the De Minimis SettlementProposal.

In fact, the proposed volumetric threshold is inconsistent with the Agency'stypical approach in evaluating appropriate candidates for de minimis settlements. Evenassuming that the Agency's waste-in allocations (which, as stated above, severely uhdercountwaste volumes attributable to certain parties) were correct, the proposed volumetric thresholdof 6,000 cubic yards represents approximately 4 percent of the total volume of wasteincluded on the Agency's waste-in list. By contrast, the Agency has typically employed avolumetric threshold for de minimis settlements of 1 percent or less. This threshold ismemorialized in the Streamlined De Minimis Settlement Guidance, which provides anexample de minimis payment matrix for calculation of de minimis payment amounts forparticular sites; the matrix does not include any payment formula for any volumetricthreshold in excess of 1 percent. Streamlined De Minimis Settlement Guidance at Attachment1. The narrative description accompanying the matrix notes that the example range extendsonly to 1.0% because EPA's average cut-off for eligibility in de minimis settlements to datehas been 1.0%. Id. at n.2.

Therefore, the volumetric threshold of 6,000 cubic yards included within theAgency's De Minimis Settlement Proposal is inconsistent with the Agency's own guidance inthat it (1) is wholly unsupported by any stated justification and (2) exceeds by approximatelya multiple of four the average threshold utilized by the Agency in other cases.

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E. The Relative Toxicity of Hazardous Substances Contributed by the ProspectiveDe Minimis Parties Is Not Minimal in Comparison to other HazardousSubstances at the Site.

Section 122(g) of CERCLA unequivocally states that a de minimis settlementmay be offered only to a party which, inter alia, has contributed hazardous substances to thefacility which exhibit toxic or other hazardous effects which are "minimal" in comparison toother hazardous substances at the facility. 42 U.S.C. § 9622(g)(l)(A). The Eighth Circuithas interpreted this statutory provision to limit de minimis settlements only to those PRPswhose "responsibility for the release of hazardous substances is either de minimis ... or notexistent." Dravo Corp.. 13 F.3d at 1225 (citations omitted). Similarly, the Agency hasacknowledged that it may enter into de minimis settlements only with persons who havecontributed to a facility hazardous substances which are minimal hi terms of toxicity or otherhazardous effects relative to the other hazardous substances at the facility. Streamlined DeMinimis Settlement Guidance at 1.

In the instant case, the Agency has proposed to offer de minimis settlements toparties which have contributed hazardous substances which exhibit toxic or other hazardouseffects which cannot be characterized as "minimal" relative to other hazardous substances atthe Site. First, the Agency has determined that each of the prospective de minimis partieshas contributed waste solvents or other organic chemicals and/or waste heavy metals to theSite. The De Minimis Settlement Proposal itself expressly states that volatile organiccompounds and heavy metals detected in monitoring wells at the Site represent thecontaminants of particular concern to EPA. With respect to certain prospective de minimissettlors, the Agency possesses more direct evidence that those PRPs contributed wastesolvents or heavy metals to the Site than for any other parry. See, e.g.. employee interviewsfor: Heritage Metal Finishing, Inc. (drums of untreated chrome disposed of at Site); NationalStandard Company (spent rice coal "loaded with lead" disposed at Site, evidence of solvent-contaminated rags hi trash); Commonwealth of Pennsylvania (ash from hospital incinerator,which burned "everything", disposed of at Site); Armstrong World Industries, Inc. (sludgeand rinse water containing heavy metals). In addition, the quantities of solvents contributedby some of those parties should not be considered by the Agency to be de minimis.9

9 By way of example, given EPA's estimate of the volume of solvent containing wastefrom New Standard Coq>., and assuming a very conservative estimate that the volumeof waste contained only 1 % solvent, New Standard sent the equivalent of over 150drums of pure solvent to the Site. This can in no way be considered a de minimiscontribution at this Site.

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Moreover, the Agency's guidance requires that the Agency compare thetoxicity or other hazardous effects of the waste from prospective de minimis parties with allhazardous substances disposed at the Site. See, e.g.. Streamlined De Minimis SettlementGuidance at 1. Therefore, in a landfill which the Agency contends received greater than720,000 cubic yards of municipal and industrial waste for approximately thirteen years, it isinapposite for the Agency to compare the hazardous constituents associated with theprospective de minimis parties only with the hazardous constituents allegedly contributed bythe remaining PRPs identified on EPA's waste-in list. Instead, the hazardous constituentsassociated with the waste from the prospective de minimis parties must be compared to thehazardous substances contributed to the Site from all sources. See, e.g.. Streamlined DeMinimis Settlement Guidance, Attachment 1 at 2 (Individual waste contribution should beconsidered relative to the "overall waste at the Site").10 In this context, it is clear that thesolvents and heavy metals which the Agency has identified as associated with the wastestreams from the proposed de minimis parties represent the specific classes of hazardoussubstances which the Agency contends are driving the required remedy for the Site, andcannot therefore be characterized in any respect as "minimal" in toxic or other hazardouseffect relative to all hazardous substances at the Site.

F. The De Minimis Settlement Proposal Does Not Consider the Effect of theProposed Settlement on Non-Settling Parties Nor Does It Take Into Accountthe Large Orphan Share at the Site.

EPA's relevant de minimis settlement guidance dictates that the Agency mustmake a "reasoned judgment" regarding the effect of a possible settlement on non-de minimis

10 Even if, contrary to the express language of § 122(g) of CERCLA and the Agency'sown guidance documents, the Agency compared toxicity of the waste streams onlyamong the PRPs identified on the waste-in list, the toxicity or other hazardous effectsof the waste attributable to the prospective de minimis parties is, at a minimum,comparable to the relative toxicity of any waste allegedly, contributed to the Site bythe non-de minimis parties. Notwithstanding the Agency's guidance which wouldallow a de minimis settlement to proceed unless the toxicity of the prospective deminimis party's hazardous substance is "significantly more toxic" than otherhazardous substances, Streamlined De Minimis Settlement Guidance at 3, Section122(g) of CERCLA, as interpreted by the Eighth Circuit in Dravo Corp..unequivocally states that the toxicity of the hazardous substances must be "minimal"when compared to other hazardous substances at the facility. For the reasons statedabove, the nature of the hazardous substances contributed to the Site by theprospective de minimis parties does not meet the statutory test.

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parties. Streamlined De Minimis Settlement Guidance at 3. Further, if the Agency hasevidence that there is, or is likely to be, a large or a very large orphan share at a particularsite, the Agency should take this into consideration before formulating a de minimissettlement. Id. In this case, the Agency provides no indication that it ever considered, ortook into account, these factors in formulating the De Minimis Settlement Proposal.Notwithstanding the Agency's disregard of-these issues, both are particularly significant withrespect to the Site. If ever the potential effect of a de minimis settlement upon non-settlingparties should dictate that the Agency not proceed with a de minimis Settlement, thecircumstances associated with this Site must qualify.

As noted above, the Agency has identified, for enforcement purposes, onlytwelve generators as PRPs at a landfill which the Agency contends accepted greater than720,000 cubic yards of municipal and industrial waste over a thirteen year period. The DeMinimis Settlement Proposal offers settlement to 'nine of these parties, leaving only threegenerators and one viable site owner as PRPs allegedly responsible for any remainingremedial measures required for the Site. These few parties, which are collectivelyresponsible for only 18% of the waste contributed to the Site by the Agency's calculations,would then be left to bear the lion's share of the remedial costs, although they are notresponsible for any significant portion of any environmental harm.

Moreover, based upon the Agency's calculations, all identified PRPs includedon the waste-in list account for less than 20% of the total waste reportedly disposed of at theSite. The remaining eighty percent of the waste volume clearly qualifies as a "very largeorphan share" under the Agency's guidance, and therefore should dictate that the Agency notproceed with the De Minimis Settlement Proposal.

Further, the existence of the very large orphan share and the fact that theaggregate volume of the waste attributed by the Agency to the prospective de minimis partiesis a substantial percentage of the total volume included on the waste-in list11 dictate that ade minimis settlement hi this case would be contrary to statutory authority. Specifically, thestatute provides that a de minimis settlement may proceed only if it involves a minor portionof the response costs at a facility. 42 U.S.C. § 9622(g)(l). See also Streamlined De MinimisSettlement Guidance at 1. Even based upon the Agency's erroneous assumptions andallocations of waste volume, a substantial portion of the response costs for the Site must beattributed by EPA to the prospective de minimis parties under any settlement given: (1) the

11 Collectively the de minimis parties account for approximately 1Q% of the total volumeof waste on EPA's waste-in list, even using the Agency's under-attributed volumetricallocations.

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limited volume of waste allegedly attributable to non-de minimis PRPs identified by theAgency for the Site and (2) the enormous orphan share. Accordingly, a de minimissettlement proposal cannot proceed in the face of the inconsistent statutory directive.

G. The Necessity of Including Significant Re-openers and a Substantial PremiumDefeats Any Benefits and is Contrary to the Objectives of Proceeding with aDe Minimis Settlement In This Case At This Time.

All relevant Agency guidance regarding de minimis settlements dictate that theAgency should assign to any prospective de minimis settlor an appropriate premium, inaddition to the party's pro rata share of the Site response costs, to address the risks anduncertainties associated with early settlement. The factors which contribute to increasing therelative premium include: the risks associated with site-specific uncertainties with regard tocompleteness of PRP information; knowledge of future response costs; and the absence of anagreement with non-de minimis PRPs for the eventual performance of remedial activities.De Minimis Settlement Methodology Guidance at 17.

In the instant case, each of these factors would support a substantial premiumfor inclusion in the De Minimis Settlement Proposal. -First, based upon the total volume ofwaste allegedly disposed at the Site in the years of Site operations, it is evident that theAgency's PRP information is significantly incomplete. In fact, as discussed above, theinformation is severely incomplete with respect to the limited number of parties identified bythe Agency on the waste-in list. Further, uncertainty remains as to the nature and extent offuture response costs and no agreement has been reached between non-de minimis PRPs andthe Agency regarding performance of the remedial action. In fact, EPA has not evenofficially approved of the final Feasibility Study, let alone issued a preliminary indication ofthe likely remedial action it will select for the Site.

In addition, the Agency's guidance directs that re-openers shall be included hiearly de minimis settlements to authorize the Agency to require additional payments fromsettlors hi the event that the waste-in information which formed the basis of the de minimissettlement proves to be incomplete, inaccurate or false. Re-openers must also account forpotential cost overruns associated with future response actions. Id. at 15.

In this case, the existing data relative to waste contributions to the Site areunequivocally incomplete and inaccurate, thereby ensuring that the necessary re-openercontained in any de minimis settlement agreement would be triggered. Uncertainty as tofuture response costs also implicates the possible triggering of necessary re-openers.

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For the foregoing reasons, Site-specific factors dictate that any de minimissettlement agreement executed between the Agency and any parties with respect to the Sitemust include (1) the application of a substantial premium against the Agency's determinationof the share of waste-in volume and (2) broad re-openers which will almost inevitably betriggered due to the circumstances of this case. For these reasons, any de minimis settlementagreement entered into at this premature stage would not effectuate the objectives of the deminimis settlement provisions of the statute and therefore be counterproductive at this time.

III. Conclusion

The Commenting Parties oppose execution by the Agency of the De MinimisSettlement Proposal at this time for the reasons described above. The information reliedupon by the Agency in formulating the relevant waste-in list which is the basis for the DeMinimis Settlement Proposal is wholly inadequate and relies upon inconsistent andindefensible assumptions. Further, the relative toxicity of the hazardous substancescontributed by the prospective de minimis parties is not minor relative to all hazardoussubstances located at the facility and the volumetric threshold established for the De MinimisSettlement Proposal is excessive, unsubstantiated and arbitrary. Agency consideration of theeffect of the de minimis settlement proposal on the non-de minimis parties and theimplications of the very large orphan share hi this case is absent from the Agency's calculus,and also undermines the appropriateness of any de minimis settlement in this case.

As stated above, the Commenting Parties recommend that the Agency supportthe use of ADR to allow the parties to develop the additional information necessary to fostera settlement in this case. The use of ADR in this instance is both consistent with Agencypolicy and more likely than the De Minimis Settlement Proposal to result in the productiveresolution of disagreements among the parties regarding the Site. A copy of WasteManagement's request for ADR, previously delivered to the Agency, is enclosed.

We welcome this opportunity to provide comments to the Agency regardingthe De Minimis Settlement Proposal and reserve the right to provide additional comments hithe event that additional information becomes available regarding the De Minimis SettlementProposal or the Site more generally. The Commenting Parties believe that another meetingwith EPA representatives would be useful to further discuss these comments and discuss our

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request for ADR. Please let me know if EPA is willing to meet again in the very nearfuture. In the meantime, should you have any questions concerning these comments, pleasecontact me.

Very truly yours,

Steven T. MianoFor MANKO, GOLD & KATCHER

STM/JC/10017-015enclosurecc: Charles Howland, Esquire (w/enclosure) VIA HAND DELIVERY

Joan Armstrong (w/enclosure)Commenting Parties

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OLD&KATCHER

VIA OVERMGHT MAILJoan Armstrong (3HW11)

SUIT£ 50° U.S. Environmental Protection Agency - Region m401 CITY AVENUEBAIA CYNWYD. PA 19004 841 Chestnut Building

Philadelphia, PA 19107(610) 660-5700(610) 660-5711 FAX

IOSEFH M. MANKOMAKE. GOLDBRUCE S. KATCHER'KENNETH J. WARRENKHIMIT L RADERNEII S. WITKESMICHAEL M. MEIOYROIERT D. FoxSTEVEN T. MIANO

BARTLETTPAMEUH. WOIDOW'JONATHAN E RINDE'RANOI S. GARNICKJOHN F. GUUACEMARC L FROHMANBART L CASSIOY'MADELEINE H. COZINEBRENDA HUSTIS GOTANDAJONATHAN H. SPERCEL'VUO ADMITTED IN N|

Niw JERSEY OFFICE:Sum 1111 EVES DRIVEMARLTON. Nj 08053(609) 596-4062(609) 596-7299 FAX

June 30, 1995

Re: Elizabethtown Landfill Superfund Site,Lancaster County, PennsylvaniaDe Minimis Settlement Proposal_____

Dear Ms. Armstrong:

By letter dated June 19, 1995 from Charles Rowland, EPA has giventhe parties identified by it as Potentially Responsible Parties ("PRPs") theopportunity to respond to the original comments submitted in response toEPA's djg minimis settlement proposal with respect to the above-referenced site(the "Site"). This letter responds to those individual comment letters on behalfof SCA Services of Pennsylvania, Inc. ("SCA"). SCA reserves the right tosupplement these comments in the event that additional information concerningthe Site or EPA's d§ minimis settlement proposal is identified.

As a general matter, we note that EPA has still not provided SCA withinformation relating to premiums or how it intends to treat the orphan shareidentified at the Site. In this respect, our efforts to provide comments on theproposed d_e minimis settlement are significantly hampered. Our comments onthe individual letters EPA provided follow.DARRYI D. BORREUI

CONSULTING ENGINEER

United Selling Corp. and United Piece Dve Works. L.P.

In their letter from counsel, dated June 15, 1995, United Selling Corp.and United Piece Dye Works, L.P. (hereinafter referred to as "UnitedCompanies") first argue that they have no liability because of a series of verycomplicated business transactions which transpired over the course of manyyears. Second, the United Companies argue that EPA's volumetric calculation

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AR000095

Joan ArmstrongJune 30, 1995Page 2

for them is overestimated based upon hauler records they recently discovered but did notprovide in their response.1

For the following reasons, we believe that the United Companies should not beconsidered for d£ minimi? treatment at the Site at this time. First, its argument with respectto successor liability cannot easily be determined at this time. While we agree that there area number of opinions which analyze this issue, these opinions make clear mat each case isextremely fact dependant. Therefore, we believe that it would be inappropriate for EPA tomake a decision on this complicated legal issue during the process of compiling a list ofeligible djg minimis parties. In addition, if the United Companies are not liable, then eithersome other company is or there is an orphan share created which should be apportioned insome fashion. Either way, significant uncertainties exist.

Second, even assuming that the records the United Companies now offer are verifiedas true, it is clear that at least 660 drums of liquid dyes and solvents were disposed of at theSite.2 This is precisely the type of waste which EPA stated at its recent meeting is drivingthe remedy at the Site. The notion that a company that sent at least 36,300 gallons of suchwastes (by its own calculations) to a landfill is dg roinimis when compared to otherwastestreams disposed of at the Site, will not withstand judicial scrutiny.

AMP Incorporated

While AMP Incorporated ("AMP") is not presently being considered by EPA to be ade minimis party, its letter from counsel dated June 9, 1995 raises certain issues whichrequire a response. AMP emphatically states that it disagrees with EPA's estimates of itsvolumetric share for several reasons, none of which are supported hi the letter or in therecord developed by EPA. For example, AMP argues that it is inappropriate for EPA toassume that AMP used the Site from the time AMP started operations until the time the

If they were provided, they were not part of the package we received from EPA.

Interestingly, the .June 1968 lease agreement provided by the United Companies liststhe types of chemicals used at the plant which could have ended up in the drummedwaste. This document lists the following chemicals: commercial" dyestuffs, chemicalcarriers, formaldehyde, oils, adhesives, acids and other substances. (Note that half ofthe chemical list on the copy of the 1968 lease that we received is illegible.)

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landfill closed. However, AMP provides no evidence of any other disposal location duringthe time period. Second, AMP argues that the volumes represented on the landfill file cardsshould not be assumed to be the volume of waste generated during previous years." Onceagain, AMP fails to provide any support for its argument. It is at least as-likely that morerather than less waste was generated during previous years. In addition, AMP itself raises anumber of issues with respect to its waste volume. If AMP is correct that its waste volumeis significantly less (a position with which we do not necessarily agree), the relativevolumetric percentages of the remaining parties would increase. These issues illustrateSCA's point (and AMP's point) mat ERA cannot establish a defensible waste-in list orrelative volumetric shares at this Site at this time.

P. dayman & Sons. Inc.

SCA believes that the volume estimates for P. dayman & Son, Inc. ("P. dayman")provided by both EPA in its proposed waste-in list and P. dayman in its letter from counseldated June 13, 1995 underestimate the amount of waste P. dayman disposed of at the Site.For example, EPA uses 1967 as the first year in which waste was disposed of at the Sitefrom P. dayman. However, a careful review of the facts shows that this may not be thecase. In its §104(e) response dated November 15, 1993 at page 6, P. dayman states that itused Truman Horner as its waste hauler from 1965 to 1967. In SCA's 104(e) response datedDecember 27, 1988, it provided a customer list from the operators which identified TrumanHomer as a hauler of waste to the Site. While this is not conclusive evidence that any wastefrom P. dayman was disposed of at the Site during 1965 to 1967, it does prove SCA's pointthat it is premature to finalize a waste-in list at this Site before all of the evidence is carefullycollected and analyzed.

In addition, in its June 13 letter, P. dayman states categorically that none of itswastes, other than the liquid waste, contained any hazardous substances. It provides howeverno analysis of its plant trash or other waste (other than a few MSDS sheets). There havebeen no in depth interviews of plant personnel in order to determine whether or not somequantities of hazardous substances were contained in this companyls plant trash (e.g. whathappened to cleaning supplies, rags that might have contained solvent or adhesives, pieces ofglued texton that were damaged or otherwise rejected, etc.). Without such information, it ispremature to take the extraordinary step of completely discounting the bulk of P. dayman'swaste stream as the company suggests.

Finally, P. dayman relies on the affidavit of Thomas Roche under cover letter ofJune 14, 1995 for several of its assertions. However, that affidavit provides little if anyassistance in a determining P. dayman's true waste volume. First, there is almost no

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support in the affidavit for the proposition that only two drums per month were generated orthat the drums were never full. Rather it appears to be based on his extremely vaguerecollection (a recollection that has not been cross examined). It seems contrary to ordinarybusiness practices to pay a hauler to drive out to a facility once per month- to pick up"approximately" two drums containing as little as 10 gallons of liquid each.

Given the issues which are outstanding with respect to P. dayman, it is inappropriateto finalize its waste volume at this time.

Furnival Machinery

There is absolutely no basis to conclude, as Furnival Machinery ("Furnival") does inits June 15 1995 letter from counsel, that it should be attributed only 27.5 cubic yards.First, it is inconsistent with EPA's treatment of other parties to count only the volume ofhazardous substances in the waste stream. Second, Furnival's estimate that its trash onlycontained 2% hazardous substances lacks any support whatsoever. In fact, a review ofFurnival's 104(e) response dated November 28, 1990 shows that its waste consisted of, interalia, significant quantities of empty containers containing dried residues of solvents, paints,and brake and transmission fluids; asbestos laden brake linings; cleaning compounds; copperand other metal parts; and empty spray paint cans. In light of Furnival's admissions withrespect to the type of waste in its plant trash, Fumival's suggestion that it contained 2%hazardous substances is absurd.

Armstrong

With respect to Armstrong, SCA simply wants to reiterate an important point theymade in their earlier set of comments. There is simply no basis in fact or law for EPA tohave excluded the vast majority of the waste Armstrong sent to the Site from its volumetriccalculation. There are two main types of wastes from Armstrong which should be included.

First, there is clear and uncontroverted testimony that an enormous amount of off-spec carpet was disposed of at the Site for a number of years. EPA totally disregarded thisinformation. Even if you discount the clear recollection of Harold Shank that Armstrongpoured acid over the carpet to destroy it after it was loaded into UDI trucks, it is beyondexplanation why EPA would assume that the carpeting itself contained no hazardoussubstances. In its January 5, 1995 104(e) response, Armstrong provided analyses of thesludge from the manufacture of carpet backing at the plant which showed the presence ofsignificant quantities of hazardous substances, including heavy metals and phenols. It is notat all clear why these substances wouldn't be contained in either the carpet itself or the carpet

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backing in some quantity. In addition, EPA's interviews of several Armstrong employeesmention the fact that the carpets were dyed using various chemical dyes. Presumably, thecarpeting that was dyed and sent to the Site contained some amounts of heavy metals or otherhazardous substances. EPA appears however to have never investigated whether thecarpeting itself contained hazardous substances.

Second, there are several EPA interviews for Armstrong employees at Armstrong'sceiling tile plant which clearly indicate that UDI hauled waste from that plant, includingsmall quantities of paint scrapings, and that the Site was at least one possible disposallocation. See, e.g. interview of John H. Bailey. EPA has never explained why the wastesfrom this ceiling tile plant were not included in Armstrong's volume.

Given these issues, it is inappropriate to treat Armstrong as a &e minimis party. Infact, Armstrong would likely be one of the largest generators at the Site if just the carpet iscorrectly included in its waste volume.

Conclusion

The issues raised above with respect to these parties clearly illustrate SCA's point thata de minimis settlement at this time is inappropriate. There are numerous complicatedissues such as the United Companies' successor liability issue, the orphan share issue, theissue raised by AMP with respect to the appropriate owner share (see page 3 of AMP's June9 letter)3, and the issue related to hazardous substances in Armstrong's carpet wastes, noneof which have been resolved. Therefore, SCA renews its request that EPA reconsider itsproposal to enter into a de minimis settlement at the Site at this time. SCA also reiterates itsrequest for an alternative dispute resolution ("ADR") procedure to facilitate the developmentof sufficient waste-in information in order to foster settlement among the parties. As westated earlier, the use of ADR in this case is consistent with the Agency's own guidanceregarding the pursuit of settlement in CERCLA cases. See, e.g.. "Streamlined Approach ForSettlements With P_g Minimis Waste Contributors under CERCLA § 122(g)(l)(A)", OSWERDirective #9834.7-lD (July 30, 1993) (hereinafter "Streamlined De Minimis SettlementGuidance") at 5.

} AMP's suggestion that all of the generators in this case should be considered deminimis. leaving the "viable owner/operator and transporter" to bear the"overwhelming share of responsibility" is without any conceivable factual or legalsupport.

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We appreciate the opportunity to provide these additional comments to EPAregarding the j|£ minimis settlement proposal and we reserve the right to provide additionalcomments in the event that additional information becomes available regarding the settlementproposal or the Site more generally. We are available to meet with you to further discussthis matter and our request for ADR. In the meantime, should you have any questionsconcerning these comments, please contact me.

Very truly yours,

Steven T. MianoFor MANKO, GOLD & KATCHER

cc: Charles Howland, Esquire

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WMX

Waste Management, Inc.A WMX Technologies Company Phone 215.244.9514Three Greenwood Square Fax 215.244.13083329 Street RoadBensalem, PA 19020-8532

' • June 6, 1995

.Patricia HUsinger, Esq.3RC33 ' "Laura Janson3HW25United States Environmental Protection AgencyRegion m841 Chestnut BuildingPhiladelphia, PA 19107

Subject: In Re Proposed De Minimis Settlements in the Matter ofthe Elizabethtown Superfund Site

Dear Ms. Hilsinger and Ms. Janson:

This letter serves as notice of Waste Management, Inc. and Waste Management ofPennsylvania, Inc.'s (hereinafter "Waste Management") request for the appointment ofa third party arbitrator or hearing officer pursuant to the Civil Justice Reform Act of1990, P.L. 101-650, Title I, Dec. 1, 1990. Waste Management's request for the use ofAlternate Dispute Resolution pertains to the United States Environmental ProtectionAgency's ("EPA") determination that certain parties are to be afforded settlementspursuant to §122(g) of the Comprehensive Environmental Response, Compensationand Liability Act, as amended, 42 U.S.C. §9622(g), as de minimis parties. WasteManagement requests the appointment of a third party arbitrator or hearing officer forthe purpose of determining the following contested issues:

1. whether or not EPA's decision to afford such parties a de minimis settlement issupported by the Administrative Record

2. whether the EPA has properly evaluated both the volume and toxicity factorsspecified in §122(g)

3. whether the EPA has properly assessed the toxicity of the settling parties'waste

4. other such issues as pertain to said settlement, at the discretion of the thirdparty arbitrator or hearing officer.

Waste Management respectfully suggests to the EPA that the proper time for suchalternate dispute resolution is prior to its final settlement with the de minimis parties inorder to avoid further complications with litigation arising out of the AdministrativeProcedure Act, and other such litigation as will be necessary to protect the interests of

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( C

Waste Management. Hence, Waste Management requests that the EPA stay itsdetermination as to whether it will enter into such final settlements until such time as ithas fully considered this request for Alternate Dispute Resolution.

Very truly yours,

drew S. LevineGroup Environmental CounselWaste Management, Inc.

cc: David BatsonCharles Rowland (3RC23)

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