MDEQ EMAIL RE: MICHIGAN ARAR TABLEThis e-mail and the content of the attached table together provide...

Logan, Mary

From: Sent: To: Cc: Subject: Attachments:

Synk, Polly (AG) [[email protected]] Friday, February 14, 2014 2:33PM Cahn, Jeffrey; Garypie, Catherine; Logan, Mary Taylor, AI (DEQ); [email protected]; Howe, Cheryl (DEQ) State of Michigan ARAR identification and comments on ARAR issues in draft TRFP-RP Michigan ARAR Table for TRFPRP.pdf

State of Michigan identification of ARARs and Michigan Department of Environmental Quality (DEQ) Review Comments on ARAR issues in

the Draft Tittabawassee River Floodplain Response Proposal - Revision 0

Settlement Agreement No. V-W-10-C-942 for the Tittabawassee River/Saginaw River & Bay Site Dow Submittal Number: 2013.80

February 14, 2014

This submittal is supplemental to the February 11, 2014 DEQ Review Comments on the Draft Tittabawassee River Floodplain Response Proposal (draft TRFP-RP).

General Comments on ARARs and ARAR issues in the draft TRFP-RP:

This supplement provides the State's identification of applicable or relevant and appropriate requirements (ARARs) for the draft TRFP-RP, and also provides DEQ's comments on the portions of the draft TRFP-RP that discuss ARARs. The attached table provides the State's identification of ARARs for the floodplain response proposal, and also summarizes the standard and applicability of the identified statutes, regulations, and guidelines. This e-mail and the content of the attached table together provide DEQ's comments to ARAR issues presented in the draft TRFP-RP, specifically Sections 4.5.1- 4.5.3 of the proposal and discussion of Compliance with ARARs in Section 6.3. The table also provides the State's comments and suggested changes to Tables 4-1, 4-2, and 4-3 in Dow's draft proposal. DEQ is not presenting a textual commentary on the discussion of State ARARs in Sections 4.5.1-4.5.3 of the draft TRFP-RP; the State's identified ARARs and summary information provide the State's position and indicate a general view that the discussion in Sees. 4.5.1- 4.5.3 is inadequate as currently drafted.

The State recommends additional consideration and discussion of existing local standards and requirements that may be appropriate to be identified as TBCs, particularly given the proposal's anticipated reliance on use-based land use management as part of the response proposal.

Specific Comments on ARARs and ARAR issues in the draft TRFP-RP:

The description of ARARs in Section 4.5 is mostly accurate; the only change suggested by the State is an addition to the second sentence of Sec. 4.5 on p. 34 to read as follows: "ARARs may be waived in certain circumstances."

1

In Section 4.5.1, the draft TRFP-RP describes the environmental medium being addressed in the response proposal as floodplain soils; as discussed in greater detail in the DEQ comments dated February 11, 2014, the draft TRFP-RP needs to be revised to address other exposure pathways.

Section 6.3.1 evaluates compliance with the ARARs identified by Dow and set forth in Tables 4-1, 4-2, and 4-3 in the draft TRFP-RP. As set forth in these comments, there are more state requirements and guidance documents that need to be considered and evaluated when discussing the floodplain alternatives' compliance with ARARs, and additional comments may be needed, depending on the evaluation and conclusions reached after consideration of the full set of ARARs for this response proposal.

Also in Sec. 6.3.1, it is suggested that action-specific and perhaps location-specific ARARs will be "managed" in the design and implementation phase of the work. It is unclear ifthis means that identification of additional action- and location-specific ARARs, as well as evaluation of the response proposals' ability to comply with those ARARs, is expected to occur at a later stage in the response. If so, some clarification of process and the format for review and comment of ARARs in the design and implementation phases of the work is needed.

Thank you for permitting a separate submittal for the State's ARAR identification and comments on the ARAR issues in the TRFP-RP. We look forward to discussing these with you.

Polly Synk

Polly A. Synk Assistant Attorney General Michigan Department of Attorney General ENRA Division 525 West Ottawa Street Lansing, MI 48933 517-373-7540 517-373-1610 (fax) [email protected]

2

i and Sediment

State Identification of ARARs for Floodplain of the Tittabawassee River

Floodplain Response Proposal- February 14 2014

ISite-,;oe,cificcleanup criteria

PCOis; MCL 324.20120a

324.20120b authorize

I of site-specific

in comparison to IPF•nPrir criteria, better reflect

available information

jccmoern1ing the toxicity or

risk posed by the

i conducted as part

the measurable metrics,

i the performance

standard for the Task 10 risk

assessment and meeting

Dow's corrective action obligations under their

License.

Michigan NREPA, Part

201 (Environmental

Protection), MCL

324.20101-20142

applicable

1

Site-specific cleanup criteria

may be required to address

multiple exposure scenarios;

the cancer (1 in 100,000) and

noncancer risk standards (HI=1)

in Michigan's NREPA at MCL

324.20120a and 20120b can be

more protective than the EPA

standards.

Soil and Sediment



Part 201 generic criteria for I and other exceedances;

administrative rules apply to

development of criteria

B10


201 (Environmental

Remediation), MCL 324.20101-20142

Mich. Admin Code R.

299.1-299.50.

applicable

2

Establishes screening levels and

generic cleanup criteria for soils

in the State. Part 201 provides

for the identification, risk

assessment, evaluation, remediation, and long-term

management of contaminated sites within the state. Part 201

provides that response actions

shall be protective of human

health, safety, welfare, and the

environment of the state and

identifies risk levels to be used

in the development of those

response actions.

Surface water



Water quality requirements

surface waters in the

State. Part 4 rules specify

standards for all waters of the

State, and require that all

designated uses of the

receiving water be protected,

including aquatic life and

ldlife. Part 8 rules establish

quality-based effluent

limits. The Part 22 rules set

quality rules applicable

discharges to groundwater.

plicable to response

Michigan NREPA, Part 31

(Water Resources

Protection), MCL

324.3101-3133; Mich.

Admin CodeR. 3L~ .. w•H1

1117 (Part 4 rules); R

323.1201-1221 (Part 8

Rules); R 323.2201-2240

3

(Part 22 Rules)

relevant and

appropriate

Substantive requirements of

permits to discharge apply.

Standards are applicable to

venting groundwater, storm

water, and discharges

associated with the response

action. Regulates discharges to

waters of the State or onto the

ground or groundwater if uses

are potentially injured.

Fish Consumption

Advisories as issued by

the Michigan np,noctm,ont of

Community Health


Floodplain Response Proposal - February 14 2014

Fish Contaminant Advisories

(FCAs) apply to various

species of fish in the

ITit:talla~1assee River. The

consumption guidelines are

based on data collected and

analyzed annually, and

provide the public with the

information needed to make

decisions to protect

mselves and their families

the health risks of

consuming fish that contain

environmental contaminants.

Michigan Fish

Consumption Advisory

Program Guidance

Document Dated August

1, 2013.

http:/ /www.michigan.go

v/documents/mdch/MD

CH_MFCAP _Guidance_D

ocument_ 417043_7.pdf

TBC

4

The Michigan Eat Safe Fish

Consumption Guide provides

fish consumption advice for the

Tittabawassee River by fish

species and fish length. The

FCAs are not regulatory

requirements and are not

enforced by legal authority;

however, Michigan 1s administrative rules identify

FCAs and other impairments as

limitations that must be

eliminated, and mandates their

consideration in the

development of cleanup criteria

for surface water and surface

water sediments. Mich Admin

Code R. 299.30. The existence

of FCAs may also be useful as a

metric of the effectiveness of

the response

actions in the future.

I Game Advisories as issued by the Michigan

Department of

Health

'ld Game Advisories (WGAs)

to various species of

living in and around the

ITitta,bawa,ssE'e River

plain. The consumption lines are based on

ltestil1€ of game from the

rea, and provide the public

the information needed

make decisions to protect

lthemsel•;es and their families

the health risks of trr>n<llmmo game that contain

environmental contaminants.

Michigan Wild Game


for wild game from Bay,

Midland, and Saginaw counties


Safe_Wild_Game_27794

2_7.pdf

TBC

5

The Michigan Eat Safe Wild

Game Advisory provides wild game consumption advice for

including the floodplain of

the Tittabawassee River. The advisory is not regulatory

requirements and is not

enforced by legal authority; however, Michigan's

administrative rules identify

risks to the public health,

safety, and welfare and the

environment, including food

chain contamination, and

mandates their consideration in

the development of cleanup

criteria for contaminated

environmental media. Mich

Admin Code R. 299.28. The existence of wild game

advisories may also be useful as

a metric of the effectiveness of

the response actions in the

future.



Prohibits direct or indirect

discharge of a substance that

is or may become injurious to

public health, recreational 1\Ai'ot,,quality-based use, or aquatic life.

limits for discharge into effluent standards

navigable waters accordance with federal

Requirements for

lm<rn""'P' affecting

and CWA, Applicable


(Water Resources

Protection), MCL

324.3101 et seq; Mich

Admin CodeR. 323.1201

1221; R 323.2101-2195.

relevant and

appropriate


31, MCL 324.3101 et

Mich Admin Code

323.2201-2240 (Part 22

rules)

6

relevant and

appropriate

Wastes generated from

response actions to be

discharged to river would be

subject to the substantive

requirements of Part 31 and the Part 8 and Part 21 rules.

Substantive requirements

would apply if response actions

involve discharges of

wastewater or wastes to

groundwater or to the ground



Establishes rules prohibiting

the emission of air man health and

contaminants in quantities i life risk-based limits

that cause injurious effects to air emissions

uirements for land

human health, animal life,

plant life of significant

economic value, and/or

lun.de1ceoing an earth bl' h I 'b' h

Esta 1s es rues prescn mg lcham!e where more t an .

1 . d

f I . so1 eros1on an

acre o and IS . .

ff d h I d sed1mentat1on control plans,

a ecte or t e regu ate procedures, and measures.

action occurs within 500

feet of a lake or stream.


(Air Pollution Control),

MCL 324.5501-5542;

Mich Admin CodeR.

336.1101-2706 (seeR.

336-1901)

relevant and appropriate


(Soil Erosion and

Sediment Control), MCL

324.9101-324.9123a;

Mich Admin Code R.

323.1701-1714

applicable

7

Air emissions may be generated

that create threats to human

health. For certain response

actions, dust emissions may

need to be monitored and

controlled, if appropriate.

For any response action

involving an earth change,

including cut and fill activities

that may contribute to soil

erosion and sedimentation of

surface water, parties must

implement and maintain soil

erosion and sedimentation

control measures. Substantive

requirements of permit must be

satisfied.



Establishes requirements for

hazardous waste generators,

transporters, and

1 rE!SPOn:se actions beyond the

I h<lzard<JL s waste facility

1 RC:RP•-e<1uivalent Hazardous

ltran,spc>rt<ltic n, storage, IIA•'o<·te Management Facility

disposal of IOnP•ratino License (License)

hazardous waste off-site pssu<•u to The Dow Chemical

ILC>miJar>v by the Waste and

azardous Materials Division

Office of Waste

Management Radiological

Protection) on June 12, 2003,

amended.


111 (Hazardous Waste

Management), MCL

324.11101-11153; Mich

Admin CodeR. 9101-

11007;

Michigan is a fully

authorized state for

RCRA Subtitle C,

therefore Part 111 of the

NREPA and the Dow

License need to be

identified in the

Response Proposal as

ARARs.

Applicable

8

Under the AOC, Dow is using a

CERCLA process to satisfy

corrective action obligations

under Part 111 and as ide i i

in the License. Part 111 and the

License also identify

environmental performance

standards under Part 201 to

satisfy corrective action

obligations. Therefore, the

substantive requirements of

Part 111 and associated rules

need to be identified as ARARs.

Portions of the regulations may

be useful as a means of

determining handling and

transportation requirements,

regardless of whether or not

area of remedy qualifies as a

TSD facility or a generator of

hazardous wastes

Disposal of non

hazardous waste off site

IStc>ra!~e and handling of

liquid industrial wastes



Establishes rules for solid

disposal facilities.

ies to a response action

limmlv·in~ landfilling.

11m,po.ses requirements on loo•nPc,t,nc< for StOrage,

and handling

onsite liquid waste in

loreoar<>t'ilc >n for transport, for

use of registered haulers,

nd for the inspection of

ides and control of the

disposal of wastes.


115 (Solid Waste

Management), MCL

324.11501- 11550; Mich

Admin Code R. 299.410

4122

relevant and

appropriate


121 (Liquid Industrial

MCL 324.12101

9

12118

relevant and

appropriate

Non-hazardous wastes

generated from response

actions, including but not

limited to disposal of soils and

sediments, are affected; the

substantive requirements of

permits and the terms of the

applicable county solid waste

management plans must be

followed

Response actions may require

transportation and disposal of

liquid waste, and the Part 121

requirements apply to the

storage and transport of those

wastes

requirements; soil

relocation

Response actions that

alter, repair, remove, or

otherwise affect

regulated dams.



where generic residential

ria are not met;

rements for movement

contaminated soils on-site

I Pruviide,s requirements for

m construction and

intenance to ensure that

ms are properly

inspected and

intained, and that the

I mMn•er< have adequately

repair,

lalterna·tio1n. removal,

)abanclonment and

reconstruction of state

regulated dams.


201 (Environmental

Remediation), MCL

324.20101-20142; Mich

Admin Code R.

299.51001-51021

relevant and

appropriate


315 (Dam Safety), MCL

324.31501-31529; Mich

Admin Code R. 281.1301

10

1313

relevant and

appropriate

Actions leaving contamination

in place must include plans for

maintaining protectiveness and

integrity of remedy, including

due care obligations;

restrictions on land use must be

recorded; substantive

requirements of soil relocation

provisions apply to any

movement of contaminated

soils.

Applies to dams over 6' in

height and over 5 acres are

impounded during the design


apply to response actions that

impact regulated dams and

surrounding areas




I cc>nsenratiion management, Presence of endangered

ler1h2mcerr1en,t. and protection or threatened species

Response actions that

involve planting or

restoration activities

species either endangered

threatened with extinction.

nonnative species that

prohibited or restricted in

procedures for State

ral Resources ICc1mmission to add or delete

the list. Provides for a


365 (Endangered Species

Protection). MCL

324.36501-36507; Mich

Admin Code R. 299.

1028

relevant and


413 (Transgenic and

Nonnative Organisms),

MCL 324.41301-41325 relevant and

appropriate

11

Applies to actions that are likely

to jeopardize fish, wildlife, or

plant species or destroy or

adversely modify critical

habitat. Would not be

considered applicable unless

Federal endangered species law

is less stringent.

For any proposed or required

planting, the requirements of

Part 413 will apply to the

selection or introduction of

plant species.



Maintaining safe lcn,nrlitions during

response actions.

Transport of equipment, Establishes maximum axle

fill dirt, contaminated loads during springtime frost

media, etc. periods and provides rules

MCL 408.1001-1094;

some of the MIOSHA

rules including Part 4

through 13 of the All

Industry Administrative

Rules, Parts 1-91 of

Construction Safety

Standards Commission

Rules, Part 1-93 of the

General Industry Safety

Standards Commission

Rules, and Parts 301-681

of the Occupational

Health Standards

Commission Rules.

applicable

Michigan Vehicle Code,

MCL 257.716-750

applicable

12

For certain response actions,

activities may be restricted by

these regulations.

Load limits and prohibitions

during frost periods will apply

transportation of heavy loads

that may be necessary as part

of response actions




alteration or occupation of

floodplains and discharges to

surface waters.

Regulates dredging or filling

of lake or stream bottoms;

IAcctiv'iti<•s in inland lakes obstructing or altering flow;

and constructing, placing or

removing a structure on

bottom lands; establishes

mitigation requirements.

'"'I

Michigan NREPA, MCL

324.3108; Part 13

Floodplain rules at Mich

Admin Code R, 323,13 3n1329.

relevant and


301 (Inland Lakes and

Streams), MCL

324.30101-30113; Mich

Admin CodeR. 281.811-

845

applicable

13


would apply for response

actions involving construction or response actions in

floodplains

Activities that are part of

response actions, such as shore protection, seawall/sheet piling,

placement of riprap,

constructing cofferdams,

excavating stream banks, and

dredging below the OHWM, for

example, may be affected by

these regulations.

Dredging,

IIITlP<IClS in Wetlands



Establishes the rules

regarding wetland uses, the

permit application process,

and mitigation and

restoration requirements for

unavoidable impacts to

regulated wetlands.


303 (Wetland

Protection), MCL

324.30301-30329; Mich Admin CodeR. 281.921-

925; R. 281.951-961

relevant and

appropriate

14

Michigan has assumed

administration of Section 303

the CWA. Projects meeting

state requirements will

generally meet the

requirements of Section

404(b)(1) of the CWA.

Response actions that impact wetlands through dredging or

other use of a wetland are

affected; substantive requirements of a Part 303

permit must be attained and

monitoring required.

Fish Consumption

IAclvi,;ories as issued by

Michigan

Department of

Community Health



Fish Contaminant Advisories

apply to various

I speciE" of fish in the

ITit:tat>aiAra";ee River. The

'"""'>umption guidelines are sed on data collected and

linfnrm,•tinn needed to make

lde!ci,;ioi1S to protect

lth,emsel•;es and their families

ming fish that contain

Michigan Fish


Program Guidance

Document Dated August

1, 2013.

http:/ /www.michigan.ga

v/documents/mdch/MD

CH_MFCAP _Guidance_D

ocument_ 417043_7.pdf

TBC

15

The Michigan Eat Safe Fish

Consumption Guide provides

fish consumption advice for the

Tittabawassee River by fish

species and fish length. The

FCAs are not regulatory

requirements and are not


however, Michigan 1s


FCAs and other impairments as

limitations that must be

eliminated, and mandates their

consideration in the

I de!velopment of cleanup criteria

for surface water and surface

water sediments. Mich Admin

Code R. 299.30. The existence

of FCAs may also be useful as a

metric of the effectiveness of

the response

actions in the future.

State identification of ARARs for Floodplain of the Tittabawassee River


IG1uidelines include Michigan Department of

recommended best practices Agriculture Food,

Farming, and Gardening

Guidelines for

Minimizing Dioxin Exposures

r minimizing exposures

food, gardening activities, and farming in the

ITit:talla~1assee River

Floodplain.

'I.


vI documents/ deq/ d eqwhm-hwp-dow-trf-

M DA_dioxin_fact_sheet

FINAL_251809_7.pdf

TBC

16

The Food, Farming and

Gardening Guidelines provide

recommended practices for

minimizing exposures to dioxins

for these activities in the

Tittabawassee River floodplain.

The guidelines are not

regulatory requirements and

are not enforced by legal

authority; however, Michigan's





chain contamination, and


the development of cleanup criteria for contaminated


Admin Code R. 299.28.



ld Game Advisories (WGAs)

ly to various species of

living in and around the

ITittaiJavvassee River

lfl<)oclpll< in. The consumption

Game Advisories as idelines are based on

issued by the Michigan of game from the

Department of and provide the public

Community Health 1 the information needed

make decisions to protect

lth,enlse·IVE!S and their families

the health risks of

ming game that contain

ron mental contaminants.

Michigan Wild Game


for wild game from Bay,

Midland, and Saginaw

counties


vjdocuments/mdch/Eat_

Safe_Wild_Game_27794

2_7.pdf

TBC

17

The Michigan Eat Safe Wild

Game Advisory provides wild

game consumption advice for

s including the floodplain of

the Tittabawassee River. The

advisory is not regulatory

requirements and is not


however, Michigan's





chain contamination~ and


the development of cleanup

criteria for contaminated


Admin Code R. 299.28.

The existence of wild game

advisories may also be useful as

a metric of the effectiveness of

the response actions in the

future.

MDEQ EMAIL RE: MICHIGAN ARAR TABLEThis e-mail and the content of the attached table together provide...

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