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COMMENT S T O TH E YAK TUNNE L OPERABLE UNI T FEASIBILIT Y STUDY , CALIFORNIA GULCH SIT E A N D TH E PROPOSED REMEDIA L ACTION PLAN F O R TH E YAK TUNNE L OPERABLE UNI T OF TH E CALIFORNIA GULCH SIT E

October 5, 1987
I . INTRODUCTION

Comments to the Yak Tunnel Operable Unit Feasibilit y Study , California Gulch Site (Yak OUFS) and the proposed remedial action plan for the Yak Tunnel operable unit

of the California Gulch site (Yak RAP) have been prepared on behalf of Hecla Mining Company (Hecla ) by Dames & Moore, Davis, Graham & Stubbs , and Greengard & Senter. T he Comments are submitted in two parts: the first , prepared by Davis, Graham & Stubbs and Greengard & Senter, focus upon the administrative and litigatio n processes

employed by the Environmental Protection Agency (EPA or Agency) in selecting its

"preferred remedial alternative" for the Yak operable unit of the California Gulch Site;

the second part, prepared by Dames & Moore, consists of technical Comments upon the

data collection, analysis and screening methods and criteria employed by the EPA in the

evaluation process.

PRELIMINAR Y STATEMEN T REGARDIN G NON-WAIVE R

It is Hecla's position that it is entitled to raise all objections to the process of

remedial action selection at the time when all the components of a California Gulch

remedy have been published. Only then can EPA's position and the true significance of

the Agency's actions and its interim decisions, including operable unit remedial decisions,

be known. Hecla cannot be barred from later challenging, and these Comments in no way

limit the nature and scope of objections to, the validity of the remedial action

alternatives selected through the RI/FS process or the process utilized in making that

selection. Thi s position is premised upon three fundamental aspects of this litigation.

First , the RI/FS process, particularly as manipulated here for litigatio n purposes,

is not a true administrative proceeding. The procedures being utilized are ad hoc and

unrelated to a rulemaking, an adjudication or anything in between. The issues involved in

the RI/FS process as envisioned by CERCLA involve an array of expertises none of which

have been committed to the sole discretion of a single administrative Agency and its

procedures; rather, the process has required the contribution of several state and federal

agencies. Further, the process is subject to the supervision of the federal court and

compliance with the Federal Rules of Civil Procedure from the outset.

Second, it is asserted by Hecla, though reserved for detailed discussion at a later

time, that the determination of consistency with the NCP of the RI/FS process and the

various reports engendered en route to a ROD and remedy selection are, in this case, a

matter for judicial , rather than administrative, determination. See, e.g., Colorado v. Gul f + Western Industries. Inc.. 83 C 23S7, Official Transcript , Hearin g on Motions; U.S.

v. Hardage. No. CIV-86-1401-W (W.D.Okla. Dec. 11, 1986).

Third, the RI/FS process as established by CERCLA and the NCP and utilized by E PA is constitutionally defective because the Agency has not provided the defendant s

with a meaningful opportunity for comment and input into the process such that due

process requisites could be satisfied. By dividing the remedy selection process into

operable units EPA is further restricting Hecla's constitutional and statutory right to

participate in the remedy selection process as a whole, rather than in ad hoc segments

determined by the EPA. In addition, because of the Agency's manipulation of the RI/FS

process, documents prepared as part of that process represent nothing more than bare

summaries of the expected testimony of expert witnesses, have no due process value and

should be afforded no more weight than similar summaries prepared in the course of any

litigation .
F or these reasons, Hecla object s to this comment proceeding, protest s EPA' s

unauthorized actions, claims that EPA's invention of a "comment period" is a nullity , and

that any "decision" based in whole or in part upon the self-serving, one-sided Yak OUFS

a nd Yak RAP reports would be arbitrary and capricious in excess of EPA's jurisdiction ,

and unauthorized by law.

INCORPORATION OF PREVIOU S HECLA COMMENTS

In its "Comments and Objection s of Hecla Minin g Company to Phase I Remedial Investigation Report Concerning the Yak Tunnel and California Gulch Site," Hecla

discussed many of the duplication s and inconsistencies arising from the dual RI/FS

processes undertaken by the EPA and the State of Colorado. Hecla believes that the

concerns raised in its previous Comments are relevant to the EPA's Yak OUFS and RAP; however, in order to avoid duplication , Hecla adopt s by reference its previous Comments

concerning the conflictin g role of the State of Colorado and the EPA and incorporates

the same as if full y set forth herein.

N ot addressed in earlier Comments however, is the effec t of the EPA's

inconsistent handlin g of the RI/FS process upon its ultimate selection of a preferred

alternative. In short, the EPA' s alternative does not flo w logicall y from the conclusions

contained within studies either previously prepared for the EPA or relied upon by the EPA. Because of the time limitation s inherent in this comment period, Hecla reserves

its right to comment upon this issue until at a later time. Technical comments on this

issue are provided by Dames & Moore.

SUMMAR Y OF COMMENT S

In August of 1987 the EPA identified its preferred remedial alternative for the Y ak Tunnel operable unit as:

Collection , treatment and discharge — Thi s alternative would

involve rehabilitation of the Yak Tunnel to maintain its function in

collecting the contaminated water; construction surge control ponds to

regulate the flo w from the tunnel; and construction of a- water treatment

facilit y in discharging the treated effluen t to the lower reaches or California Gulch or the Arkansas River.

Y ak RAP, pp. 4-5.

Hecla's Comments upon the administrative and litigation processes employed by

the EPA in making this selection can be summarized as follows:

A. The EPA has failed to develop its preferred alternative in accordance with

the mandates of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) , as amended, 42 U.S.C.A. Section 9601. et seq.

1. The EPA's preferred alternative is both a non-permanent remedy and

requires off-site disposal. It was chosen over other remedies which may be both

permanent and do not require off-sit e disposal. Section 121(b)(l) of CERCLA requires

that, "Remedial actions in which treatment which permanently and significantl y reduces

the volume, toxicity and mobility of the hazardous substances, pollutants , and

contaminants is a principal element, are to be preferred over remedial actions not

involving such treatment. The off-site transport and disposal of hazardous substances or

contaminating materials without such treatment should be the least favored alternative
remedial action where practicable treatment technologies are available." 42 U.S.C.A.

9621(b)(l) .

2. CERCLA requires that the EPA afford interested parties "a reasonable

opportunit y to comment and provide informatio n regarding the (proposed remedial)

plan." CERCLA further provides a detailed procedure whereby potentiall y responsible

parties may be timely apprised of the EPA's proposed remedial plan and, as well ,

afforded an opportunit y to participate in the developmen t and implementatio n of the

remedy. 42 U.S.C.A. Sections 9613(k)(2) and 9622. In a statute such as CERCLA , where

an Agency is authorized to take major federal action significantl y affectin g the

environment, public participatio n must be more than a procedural formality , recognized

by EPA only in its guidance documents. See Guidance on Feasibilit y Studies Under CERCLA , pp. 48-49 (FS Guidance). However, in practice, the EPA's analysis of at the California Gulch site have so confused the nature of the contamination, its sources, the

relationship of the Yak Tunnel to the rest of the site, the sequence of reports and studies

that it is impossible for the type of detailed and systematic consideration of

environmental, economic and institutional issues and impacts as mandated in both CERCLA and the National Environmental Policy Act (NEPA).

B. The EPA has selected a preferred alternative for the Yak Tunne l operable

unit which is neither effective , feasible, or cost-effective and, therefore, is inconsistent

with the National Oil & Hazardous Substances Contingency Plan (NCP), 40 C.F.R. 300.68,

et seq.

1. The preferred alternative has "significant adverse effect s and very limited

environmental benefits," 40 C.F.R. 300.68(g)(3); other alternatives, including pluggin g

and a unified approach to the site, have been presented to the EPA and warrant

considerably more attention from EPA as potentiall y having less adverse effect s and

greater environmental benefits. The EPA has failed to address numerous factors relative

to the effectiveness , feasibilit y and cost-effectivenes s of various technologies which are

to be "assessed in determining whether and what type of remedial and/or removal plan s

will be considered." 40 C.F.R. 300.68(e)(2). Because the EPA has failed to properl y

scope the site so as to "indicate the types of removal measures and/or remedial measures

suitable to abate the threat, and set priority for implementation of the measures," 40 C.F.R. 300.68(e), it has not given appropriate review to a suite of alternatives, rather it

has given consideration to only one remedial technology (mechanical treatment), and a

minor variation upon this technology (mechanical treatment plus partial plugging) .

2. The EPA's preferred alternative does not represent a "cost effective

alternative that effectivel y mitigates and minimizes threats to and provides adequate

protection of public health and welfare and the environment," 40 C.F.R. 300.68(1).

C. The EPA's preferred alternative is arbitrary and capricious because the EPA has failed to follo w its own guidance documents in making its decision.

1. The EPA has not performed an adequate endangerment assessment, as

required by the EPA's own Endangerment Assessment Handbook FS Guidance, and Endangerment Assessment Guidance.

2. The EPA's guidance on feasibilit y studies under CERCLA , June, 1985 (FS

guidance), specificall y requires that "each remedial alternative should be evaluated with

regard to safety." FS Guidance, p. 3.6, section 3.4. Safet y is defined both in terms of

threats to nearby communities and environment as well as to those of workers during

implementation . Neither the Yak OUFS or RAP contain any reference to conditions
expected to be encountered during rehabilitation , disposal of sludge, and operation of the

treatment plant , and the practical and regulatory constraints attendan t on

rehabilitation. Comments prepared by Dames & Moore will provide the substance of this

topic.

A summary of comments prepared by Dames & Moore is included in Part 2.

PL DETAILED COMMENT S

A. THE YAK TUNNEL OPERABLE UNIT FEASIBILIT Y STUD Y AND REMEDIAL ACTION PLAN ARE PROCEDURALLY AND SUBSTANTIVELY INSUFFICIENT T O SATISF Y THE MANDATES OF THE COMPREHENSIV E ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY AC

SECTION 9601, et seg. (CERCLA).

1. TH E EPA'S PREFERRED ALTERNATIV E I S A NON-PERMANENT REMEDY WHIC H INCORPORATE S OFF-SIT E DISPOSA L AN D UNJUSTIFIABL Y LIMIT S SOURCE CONTRO L TECHNOLOGIES . T he remedial action alternative preferred by EPA in its Yak Tunnel operable unit

feasibilit y study has two major disadvantages which were not adequately considered by

the Agency: the treatment envisioned would be perpetual , and it would necessarily entail

off-site storage and disposal of substantial amounts of potentiall y hazardous metal

hydroxide sludge. In our situation, where there may be a source control alternative

which meets the NCP criteria and the statutory factors of Section 121 of the Act , 42 U.S.C. 9621, the absence of adequate examination and analysis makes the entire

selection process arbitrary and capricious, and outside of the scope of the Act.

Congress has clearly indicated that permanent, on-site treatment remedies are to

be preferred by EPA. 42 U.S.C. Section 9621(b)(l) . The attainment of the preference

was so critical to Congress that it also provided, in 42 U.S.C. Section 121(b)(2) , as

amended in 19S6 to reflec t the experience garnered from the firs t five years of

implementation of the CERCLA program, that EPA may even select "an alternative

remedial action meeting the objectives of this subsection whether or not such action has

been achieved in practice or at any other facilit y or site that has similar

characteristics." (Emphasi s added.) Thi s provision is understood not as an expression of

blind faith in emerging technologies, but as recognition that non-permanent, off-sit e

remedies unavoidably entail significant risks of their own.

By ignoring its statutory mandate in this case, the Agency has consequently muddled the goals of the RI/FS process with respect to the Yak operable unit and the site

as a whole, while correspondingly confusin g its analysis of remedial alternatives. For

example, in the Yak Tunnel OUFS, EPA determined, without even followin g its own

guidance relating to the development of information on which to base remedial selection,

that hazardous substances be pumped in perpetuit y to a proposed treatment plant , with

the resulting sludge to be shipped off-site , with ultimate storage envisioned in approved

treatment, storage and disposal facilities .

The remedial choice is even more peculiar when one considers the lack of disposal

facilities now in existence, (see, e.g., letter from Lee M. Thomas, Administrator of EPA

to Senator Jesse Helms , dated July 18, 1985, reprinted in 52 Congressional Record SI 1841, September 20, 1985), and the poor track record indicating that federally -

permitted facilities themselves have created new hazardous waste leakage problems. Further, the Administrator of EPA has reported that treatment, storage and disposal
capacity may even become more straitened in the coming years. See

t

 Letter from Thomas to Helms , supra; "Hazardous Waste Management System: Land Disposal Restrictions," 51 Fed. Reg. 40572 (1986). Rather than follo w the Congressional directive

which places a premium on permanent techniques which EPA has disregarded, without

adequate explanation , a proven technique such as plugging, which potentiall y represents a

permanent solution and does not necessarily require off-sit e disposal .

T he potential problems attendant from off-sit e disposal are also demonstrated

when one applie s — as EPA has pointedl y refused to do — the followin g statutory

factor: "the potential threat to human health and the environment associated with

excavation, transportation , and redisposal , or containment." (Emphasi s added.) 42 U.S.C. Section 9621(b)(l)(G). Thi s section, on its face, directs the Agency to examine the

potential threats arising from the exact type of remedy EPA has determined to be

"preferred" for the Yak Tunnel . It also suggests that the relative risks of threats to

human health and the environment from the enumerated actions be assessed and

compared. Instead, the Agency has focused on the small risks associated with a source

control alternative, without even analyzing, much less comparing, the panopl y of risks

from its chosen alternative. EPA clearly violated a statutory requirement for remedial

selection, making the proposed remedial selection arbitrary and capricious and without a basis in the law.

Similarly , EPA's flawed selection process led them to ignore another statutory

factor, that "long-term maintenance costs" be considered. 42 U.S.C. Section

9621(b)(lXE) . And again, the selection process is legally defective as a result. See pp.

28-20 infra.

In ignoring the statutory factors for remedial selection, EPA has not only ensured

that its action is arbitrary and capricious and without a basis in the law; the Agency has

also created an indefensible practical result. EPA is suggesting, in effect , that lives be

put at risk by the very real dangers presented by rehabilitation of the Yak Tunnel , in

order to erect a facilit y to treat in perpetuit y the symptoms of the Yak Tunnel drainage

problem — which would, in turn, create waste sludge to be contained, transported and

disposed of in as yet unidentified facilities . And even that may not end the matter,

because there is no guarantee that legally-adequate disposal facilities will be available at

a cost justified by CERCLA and common sense.

Certainly EPA will not be heard to assert the permanency of its Yak Tunnel

remedy. As used in 42 U.S.C. S9621 in CERCLA , the term "permanent" has a specificall y

defined meaning. Permanent solutions consist only of those which "destroy or neutralize

a hazardous substance or assure that it will not be released into the environment in such

a manner as to have any adverse effec t on public health or the environment." (House Report (Public Works and Transportation) 99-253(V), p. 50.) The preferred alternative

published in the Yak RAP does not employ a method in which a hazardous substance is

"destroyed or neutralized." Merely, the metal hydroxide sludge, separated from water

must itsel f be considered and dealt with as a potentiall y hazardous substance in and of

itself . EPA has acknowledged, however, that pluggin g has the potential of "stopping the

acid water process." (Yak OUFS, p. 6-8.)

Congress has astutely observed that the "ultimate solution to the problem of

hazardous wastes consists in neutralizing or destroying them and in encouraging recycling

and other measures that will reduce the incidence of hazardous waste production in the

firs t place. Doing anything else in the guise of permanent solution does nothing but

postpone problems which must be addressed by future generations" (House Report (Public Works & Transportation) 99-253(V), pp. 51-52.) It must be realized that the
circumstances of mining activity when serving as the focus of a superfund clean-up

effort , differs remarkably from the circumstance of a chemical dump type site. This

generic difference must be realized in the proposed remediation of the mining site as

well. Because flo w from California Gulch is potentiall y infinite, any treatment

technology is necessarily deficient with regard to the governing statutory mandate.

When analyzed under the foregoing considerations, the Yak OUFS, and RAP, are

substantively insufficien t in their consideration of alternative remedies as mandated in

42 U.S.C. Section 9621. The dismissal of alternative remedies such as the total pluggin g

of the Yak Tunnel and monitoring practices of the site was based upon inadequate review

or none at all. Further, such alternatives were completely dismissed with little or no

adequate explanation for the basis upon which the decision to dismiss was arrived.

2. THE ENVIRONMENTAL PROTECTION AGENC Y HAS FORECLOSED INTERESTED PARTIES FROM ANY MEANINGFU L OPPORTUNIT Y T O PROVIDE REASONABL E COMMEN T AN D INFORMATION REGARDIN G POTENTIA L REMEDIES

OF THE YAK TUNNEL OPERABLE UNIT , AND HAS THU S DEVELOPED THE RI/F S

PROCESS IN A MANNER WHICH IS INSUFFICIENT TO SATISFY THE MANDATES OF T H E COMPREHENSIV E ENVIRONMENTA L RESPONSE COMPENSATION AND LIABILITY ACT, 42 U.S.C. SECTION 9601. et seq. (CERCLA). The Environmental Protection Agency is bound to provide PRP's, at a minimum, "a

reasonable opportunity to comment and provide information regarding the plan" as

proposed by that Agency. 42 U.S.C. Section 9613(k)(2)(BXii). The above-quoted section

is far from an arbitrary or minor one. The idea of public comment and the duty to

provide information to facilitate that comment is directly connected to the matrix of

congressional goals pursuant to CERCLA. It is only with meaningful public comment and

review that the concurrent goals of PRP conducted remedies, conservation of Superfun d

monies, and public awareness may be achieved. See 42 U.S.C. Sections 9617(a), 9613(k),

9622(a). ——

The administrator has made no determination that good faith negotiations are not

or were not possible with the instant PRP's as required by Section 122 of CERCLA. EPA conduct in developing the RI/FS has effectivel y foreclosed the public from access to

information, and from time with which to digest and evaluate received data regarding

status and potential remediation of the Yak Tunnel operable unit. In turn this systematic

exclusion of PRP's from the remedy selection process has deprived EPA of potentially

valuable insight and experience.

EPA has set forth an inadequately substantiated Phase I Remedial Investigation

(see Hecla Comments to Phase I Remedial Investigation of Yak Tunnel Operable Unit),

and almost immediately thereafter, and more particularly, prior to the expiration of even

the Phase I Remedial Investigation comment period, has promulgated the Yak OUFS and RAP.

Each of the aforementioned documents is necessarily technical, intricate and

complex. Presumably the government spent extensive amounts of time and resources in

development of the included data and conclusions. The flaw occurs in EPA timing of the

release of data and conclusions, providing only a few weeks for public review. The EPA's

procedural stance and timing have so confused the issues of contaminant source, nature

of contamination, EPA expectation concerning degree of clean-up, and degree of PRP involvement in development and implementation of the remedy, that EPA-PRP

cooperation in the development of the best possible remedy has to this point been

stymied.
E PA conduct as set out above, with regard to the promulgation of the Yak Tunnel

operable unit feasibility study as well as the remedial action plan indicates a complete

disregard for the mandates of CERCLA . It is indicative as well of EPA's treatment of

these proceedings as a strictl y adversarial process, as opposed to undertaking a

constructive role in the remediation of what the government feel s to be a potentiall y

dangerous site. The result of such a posture is a long and complex lawsuit which is

unlikely to result in the most cost effective , efficien t and feasible remedy. It was to

avoid these problems that Congress directed EPA to enter into agreements with PRP's

that "are in the public interest and consistent with the National Contingency Plan in

order to expedite effective remedial actions and minimize litigation." 42 U.S.C Section

9622(a) (emphasis added).

B. THE EPA'S SELECTION OF ITS PREFERRED ALTERNATIVE IS

INCONSISTEN T WITH TH E NCP.

Section 105(a) of CERCLA requires that response actions undertaken by the EPA "(s)hall, to the greatest extent possible, be in accordance with the (NCP)." 42 U.S.C., Section 9605(a). The NCP is to "(e)stablish procedures and standards for responding to

releases of hazardous substances" which shall ensure at a minimum that remedial actions

are effective , feasible and cost effective for the condition of the particular release." 42 U.S.C. S9605(a). Because CERCLA mandates such a pervasive role for the NCP in determining

whether, and to what extent, EPA actions are appropriate at a particular site,

remediation which is inconsistent with the NCP is not subject to a cost-recovery under SI07. Specifically , those sections of the NCP which concern the development of

effective , feasible and cost effective remedies must be utilized by the EPA in developin g

a nd screening proposed remedial alternatives. The EPA's development of the preferred

alternative for the California Gulch site, however, shows at best superficial compliance

with these importan t provisions of the NCP .

1. THE EPA'S PREFERRED ALTERNATIV E I S NOT AN EFFECTIV E REMEDY F O R TH E YAK TUNNEL .

a. The NCP Requires Rejection of Remedial Alternatives That Have

"Significan t Adverse Effect s and Very Limited Environmental Benefits," 40 CFR 300.68(g)(3).

T he effectivenes s of collection and chemical treatment as a remedial measure for

the Yak Tunnel drainage has been questioned by numerous persons. See transcript of

public meeting, September 1, 1987, Comments of ASARCO , Res-ASARCO and Resurrection Mining Company. The EPA has ignored all substantive comments in

selecting "collection and chemical treatment" as its preferred alternative. A particularly striking example of this is the EPA's inclusion of rehabilitation of the Tunnel

and construction and operation of a chemical treatment plant in its preferred

alternative, which have been included in the remedial action plan over the strong and

well considered objection of numerous parties. See transcript of public meeting, September 1, 1987.

Section 300.68(g)(3) of the NCP specificall y states, "(i)f an alternative has

significan t adverse effects , and very limited environmental benefits, it shall be excluded

from further consideration." 40 CFR Section 300.68(gX3). Significan t adverse effect s which are inherent in the EPA's preferred alternative can be summarized as follows:
~ Rehabilitation of the Yak Tunnel will be a labor intensive and monumentall y

expensive project . Rehabilitation of the tunnel could well be more difficul t than original

construction. See transcript of public hearing, September 1, 1987. The EPA has never

addressed this issue; has never estimated the man hours necessary to complete this task;

and, has never presented the engineering data to support the conclusion that such a

project can be successfull y completed.

— Rehabilitation and maintenance of the tunnel will be a perpetual project

requiring a crew of eight to ten persons working fulltime . Numerous historical reports

indicate that conditions existin g within the Yak Tunnel have made maintenance a

continuing operational and safet y problem since the construction of the tunnel in the late

1800's . See Voynick, Steven M. , Leadville: A Miner' s Epic, Mountain Press Publishin g Company , 198*. Id. EPA has never determined whether such labor will be available to

meet future needs, how much it will pay for such labor and who shall pay for it.

— Rehabilitation will pose significan t safet y risks to the laborers.

T he treatment plan t will require perpetual maintenance and operation and

will be subject to sudden and continual mechanical failure. Disposal of sludge will ,

likewise, be a perpetual operation and is anticipated to generate over an acre of sludge

per year. See Comments prepared by Dames & Moore.

Environmental benefit s to be obtained from EPA's collection and treatment will

be greatly limited by the followin g factors:

~ The tunnel is laced with numerous mine workings and it will be impossible to

rehabilitate all areas of the Tunnel. The EPA has never indicated whether it intends to

rehabilitate all areas of the tunnel and, if the entire tunnel will not be rehabilitated

whether plugs will needed.

— The treatment plan t is highly subject to upset and failure due to operator

negligence and equipment failure.

— The perpetual disposal of sludge generated by the operation of the chemical

treatment plan t will result in the creation of a new hazardous waste site which contains

a more concentrated and potentiall y more mobile and toxic substance.

When one considers these obvious and substantial risks and limitations involved in

collection and chemical treatment of the Yak Tunnel discharge, as compared to the small

risks posed by pluggin g alternatives, it is clear that the EPA has not followed the

guidance of the NCP in selecting its preferred alternative for the Yak Tunnel .

In analyzing the effectivenes s of remedial options, the EPA is required to consider

a range of factors, including:

( i) Population , environmental and welfare concerns at risk;

(xii) The extent to which federal environmental and public health

requirements are applicable or relevant and appropriate to the specific

site, and the extent to which other federal criteria, advisory and guidance

and state standards are to be considered in developin g the remedy
(xv) Abilit y of responsible part y to implemen t and maintain the

remedy until the threat is permanently abated;

40 C.F.R. 300.79(e)(2). Takin g only these factors for purposes of these comments, it is clearly evident

that the EPA's failure to adequately characterize the California Gulch site and scope

response actions has severely limited the effectivenes s of its preferred alternative.

1. Population , Welfar e and Environmental Risks. See Comments

prepared by Dames & Moore.

2. Applicable or Relevant and Appropriate Statutes , Regulations

or Requirements.

T he EPA is attemptin g to impose federal Ambient Water Quality Criteria (AWQC) upon the California Gulch clean-up. As stated in the EPA' s Yak OUFS, the AWQC' s were established under the authority of the Clean Water Act and are non-enforceable criteria, Yak OUFS, p. 3.9, and

are not intended to serve as site specific clean-up requirements. Particularly in a highly mineralized area such as the Leadville Minin g District site specific conditions must be considered. See Dames & Moore's

comments.

Section 121 of CERCLA provides that applicable or relevant and

appropriate clean-up standards are to be incorporated into the remedial

plan for the site. The word "applicable" means that the environmental

statutes referenced under CERCLA would legally appl y to the situation

presented by a release or threatened release of hazardous substances,

pollutan t or contaminant. Act of October 17, 1986, Pub.L. No. 99-499,

1986 U.S. Code Cong. and Admin. News (100 Stat.) 1613. Relevant has

been defined to mean that there may be circumstances related to a release

or threatened release of hazardous substances, pollutant s or contaminants

where another environmental statute may not appl y in a strict legal sense

but where the circumstances are very similar to those anticipated by the

law. These relevant standards would be used when appropriate. Id.

3. Abilit y to Implemen t and Maintain the Remedy. See pages 1*

and 15, supra.

Because the EPA has failed to properl y scope the site and proposed alternatives so

as to "indicate the types of removal measures and/or remedial measures suitable to abate

the threat, and set priority for implementation of the measures," 40 C.F.R. 300.86(e), it

has given consideration to only one remedial technology (mechanical treatment) and a

minor variation upon this technology (mechanical treatment plus partial plugging) . Because of the EPA's restrictive approach to evaluating remedial alternatives, the RI/FS

process is not merely procedurally deficient; rather, the RI/FS process as employed by

t he EPA so clearly derogates from NCP requirements that it fundamentall y misapprehends the nature of the California Gulch site, the sources of contamination and

t he appropriate methods of remediation that any remedy evolving from the EPA's RI/FS

process cannot reliably be implemented as an effective remedy.

10
2. TH E PREFERRED ALTERNATIV E I S NOT FEASIBL E T O IMPLEMENT AND MAINTAIN .

a. The NCP Requires the Development of Alternatives That Are "Feasible for

the Location and Condition s of the Release, Applicable to the Problem, and Represent a Reliable Means of Addressin g the Problem." 40 C.F.R. 300.6S(g)(2).

T he NCP establishes feasibilit y as one of the primary thresholds in both the initial

screening and detailed analysis of remedial alternatives at the feasibilit y study level. Feasibilit y in terms of initial screening is characterized as: "(2) Acceptable engineering

practices. Alternatives must be feasible for the location and condition of the release,

applicable to the problem, and represent a reliable means of addressing the problem."

Wy 300.68(g)(2).

T he NCP places a high premium upon the condition that a remedial alternative be

"reasonable to implemen t from an engineering perspective..." Id. , 300.68(i)(5)(iii). The

section quoted above offer s one of the few exceptions to the requirement that remedial

actions meet all applicable or relevant and appropriate standards, and follow s the CERCLA statutory mandate that such standards be balanced against the engineering

impracticability of implementin g a remedy. 42 U.S.C. Section 9621(d)(3XC) .

Engineering feasibility is not only utilized in the initial screening of alternatives. Section 300.68(h)(2)(iii) of the NCP requires that the detailed analysis of alternatives

include "evaluation in terms of engineering implementation , reliability , and

constructability..." 40 C.F.R. Section 300.68(h)(2)(iii). Clearly , alternatives which

cannot be practicably constructed, implemented and maintained are to be eliminated

throughout the initial screening and detailed evaluation contained in the feasibilit y study

process. Evidence from the EPA's Yak OUFS is that it failed to give feasibility , in terms

of engineering practicability , proper consideration in developing, screening and analyzing

remedial alternatives. Most importantly , as discussed throughout the body of these

comments, the EPA has failed to perform the type of bench scale and preliminary studies

to determine whether rehabilitation of the Yak Tunnel and perpetual operation of a large

scale treatment facilit y are implementable, constructable and maintainable.

3 . REHABILITATION O F TH E YAK TUNNE L AN D MECHANICA L TREATMENT OF THE DISCHARG E AR E NOT COST-EFFECTIVE .

a. The EPA's Preferred Alternative Does Not Represent a "Cost Effective Alternative that Effectivel y Mitigates and Minimizes Threat s to and Provides Adequate Protection of Public Health and Welfare and the Environment." 40 C.F.R. 300.68(1).

T he NCP provides that, "(f)or each alternative, the cost of implementin g the

remedial action must be considered, including operation and maintenance costs. An

alternative that far exceeds the cost of other alternatives and that does not provide

substantially greater public health or environmental protection or technical reliability

shall usually be excluded from further consideration." Id.. Section 300.68(g)(l). The cost effectivenes s analysis required by the NCP is more than a simple cost

balancing analysis; instead .»f considering costs strictly on a dollar for dollar basis, the EPA must consider cost in terms of those remedies which meet applicable or relevant

and appropriate clean-up goals. Rather than, as the EPA has apparently believed,

diminishing the importance of cost factors, this approach highlight s the need to establish

reasonable clean-up goals so that cost factors may be given the detailed analysis they

deserve in the light of the most effective technology for obtaining these goals.

11
In the Yak OUFS all of the EPA's cost analyses must be discredited because the Agency has failed to set reasonable clean-up goals and standards for the California Gulch

site. Remedial goals can have a direct influence upon the ability of the EPA to

determine the remedial alternative which is most cost effective. For example, the

stated goal of the EPA's Yak OUFS is:

T he goal of this FS is to provide a basis for selection of remedial actions

that will protect public health and welfare and the environment from the

release or threat of release of hazardous substances, pollutants , or

contaminants from the Yak Tunnel .

Y ak OUFS, p. 1-6. Thi s overly broad and general restatement of goals and objectives

without reference to site specific characteristics of the California Gulch site provides

absolutely no basis to determine which remedies, if any, cost effectivel y attain such

goals.

Without a site specific approach to establishing standards, absurd conclusions can

be reached; for example, the EPA advocates adoption of chronic aquatic lif e standards to

restore or maintain fish population in California Gulch without any supportin g evidence

that fish have ever survived in California Gulch even under pre-mining conditions. Any

remedy premised upon this goal cannot be cost effective. Even if the focus is placed

solely upon the Arkansas River, numerous questions are lef t unanswered: Is the objective

of the EPA to restore the Arkansas River fishery to its pre-mining condition? If so, what

is the pre-mining condition? If the intent is not to restore the Arkansas River fishery to

its pre-mining condition, is the objective to restore the river to its highest quality and

practicably attainable use? If so, what habitat limitations, other than metal

contaminations are present which would limit attaining this goal? Such questions, and

similar ones for California Gulch, must be answered before it can be determined which

technology most cost-effectivel y reaches the intended goal.

Even assuming, only for purposes of these comments, that the EPA has adequately

and correctly addressed the issues of goals and standards for the California Gulch site

remedial actions, its preferred alternative of collection, treatment and discharge

utilizing tunnel rehabilitation and mechanical treatment, is not the most cost effective

means to achieving the express goals and standards. EPA's preferred alternative is the

least cost effective alternative for a variety of reasons:

1. The remedy requires perpetual maintenance of the tunnel, operation of a

treatment facilit y and disposal of toxic sludge. Such perpetual elements of the preferred

alternative make it practicably impossible to estimate with reasonable certainty the

extended cost.

2. EPA's preferred alternative, estimated to cost between $23 and $29 million,

represents a considerable additional expense over other alternatives, such as total tunnel

plugging, which costs a fraction of that amount and equally will satisf y all applicable or

relevant and appropriate standards. As evidence by numerous comments provided to the

EPA during the public meeting in Leadville on September 1, 1987 and various comments

submitted thereafter, the EPA has significantly underestimated the costs of tunnel

rehabilitation, maintenance, as well as the operating costs of the treatment plant. See Dames & Moore's comments on this point.

3. The EPA has failed to establish that the preferred alternative will be

effective in attaining clean-up goals and standards in perpetuity.

12
C . TH E EPA' s PREFERRED ALTERNATIV E I S ARBITRAR Y AN D CAPRICIOU S BECAUS E TH E EPA HA S FAILED T O FOLLOW IT S OWN GUIDANC E DOCUMENT S IN MAKIN G IT S DECISION . Guidance documents prepared by the EPA control the timing, scope and

organization of remedial investigations. By requiring an orderly progression of studies

and reports, such documents insure that essential data is gathered and that remedial

decisions are premised upon fact rather than speculation. Failure to follo w guidance

documents, evinces a capriciousness as to CERCLA's statutory and regulatory

framework. At the California Gulch site, the EPA has failed to follo w its guidance

documents with respect to remedial investigations with the result of a discontinuous and

disconcerted remedial investigation. The followin g examples will demonstrate this point:

1. The EPA Has Failed to Perform an Endangerment Assessment Sufficien t to Support It s Preferred Alternative.

T he Endangerment Assessment handbook, EPA, 8-86 (EA handbook), sets forth

with specificit y the role of the endangerment assessment:

.. .Under Section 106(a) of CERCLA , EPA must be able to properly

document and justif y its assertion that an imminent and substantial

endangerment to public health or welfare or the environment may exist. T he endangerment assessment provides this justificatio n and

documentation.

EA Handbook, p. 2-1.

Because of the prominent role of the EA in remedial activities, it is to be

performed at the initiation of the investigation:

The endangerment assessment document must be prepared before a CERCLA Section 106(a).. .is filed or issued. Therefore, the endangerment

assessment process should be initiated as soon as the site is identified as an

enforcement site and administrative or judicial actions are considered.

EA Handbook, p. 2-2, 2-3. An endangerment assessment is "an evaluation and

interpretation of the collective demographic, geographic, physical, chemical and

biological factors at a site which describe the extent of the potential or actual harm."

EA Handbook, p. 3-1. Where the EPA has embarked upon a course expected to culminate

in litigation, the endangerment assessment is to attain a high level of sophistication and

detail, including:

—State of the art exposure level modelling techniques;

—Detailed site characterization;

—Quantitative exposure and toxicity assessments of the contaminants present;

—Detailed appraisals based upon the best expertise and knowledge and an estimate

of the uncertainty.

EA Handbook, pp. 4-3 through 4-6. At a site such as the California Gulch site, where

remediation is complicated by site specific characteristics, historical and legal factors ,

and, now superimposed operable units, the EA becomes a critical public information

document vitally important to the development of an appropriate remedial plan.

13
DAVIS , GRAHAM & STUBB S

By. Elizabeth H. Temkin

B y_James R. Strock

3 70 Seventeenth Street , Suite 4700 Denver, CO 80202

(303) 892-9400

GREENGAR D & SENTER

Richard D. Greengard

By._________ Thomas E. Nap p WO South Colorado Boulevard, Suite 700 Denver, CO 80222

(303) 320-0509

ATTORNEY S FO R HECL A MININ G COMPAN Y
October 5, 1987

VOLUME II TECHNICAL COMMENT S AND OBJECTIONS Y AK TUNNEL OPERABLE UNIT FEASIBILIT Y STUD Y A ND PROPOSED REMEDIAL ACTION PLAN CALIFORNIA GULCH, COLORADO UNITED STATES V . APACHE , ET . AL . CIVI L ACTION NO . 86-C-1675

Dames & Moore

Prepared By:

DAMES & MOORE

1626 Cole Boulevard Golden , Colorado 80401

(303) 232-6262
VOLUME I I TECHNICAL COMMENT S AND OBJECTIONS Y AK TUNNEL OPERABLE UNIT FEASIBILIT Y STUD Y A ND PROPOSED REMEDIAL ACTION PLAN

GENERAL COMMENTS

T he U.S . Environmental Protection Agency' s Yak Tunnel Operational

Uni t Feasibilit y Stud y (June , 1987) an d Remedial fictio n Plan (RAP) (August ,

1987) address remedies to decrease the release or threat of release of or

exposure to hazardous substances, pollutants , and contaminants from the Yak

Tunnel (EPA, 1987). The Feasibilit y Study (FS) an d the remedial responses

that are developed and evaluated in the Remedial Actio n Plan (RAP)

explicitl y address only the discharge from the Yak Tunnel to California

Gulch, independent of the other portions of the California Gulch site in

total . Implici t i n EPA' s approach i s the tacit assumption that the Yak

Tunnel can be remediated separately from the remainder of the California

Gulch Superfun d Site . The appropriateness (in terms of both geography and

timing ) of this assumption i s critical to EPA' s FS an d requires detailed

and careful consideration.

On page 1-5 of the FS, the statement is made that "an Operable Uni t

is a discrete part of the entire response action that decreases a release,

threat of release or pathway of exposure" and that "implementation of

Operable Uni t response actions may begin before selection of an appropriat e

final remedial action if such measures are cost-effective and consistent

with a permanent remedy." As discussed in the Specifi c Comments, this is a

key issue which must be carefull y addressed and resolved.

Specifi c technical comments on the Yak Tunnel Operational Uni t FS

focus on six main areas or issues. These are:

1. Health risk assessment,

2. Inadequate and speculative database,

3. Aquatic lif e evaluations,

-1-
4. Institutional issues,

5. Operable unit concept , and

6. Evaluation and selection of preferred alternatives .

SPECIFI C COMMENT S

1. Health Risk Assessment

Our general impressions of the Executive Summary and Sectio n 3.0 from

t he review of these sections are twofold: (1) first , the focus on possible

modes of exposure of human population s and environmental biota to the

pollutan t minerals in the outflo w water is clear, although no definit e

conclusions have been drawn as to the significan t populatio n sectors at

risk by defined , realistic routes of exposure; and (2) there are no clear,

well-defined levels of excess risk of specifi c health effect s from

exposures to specifi c metals in water against which quantitative

remediation goals can be established. Lackin g such quantitative

conclusions as to the extent of remediation by concentration reduction

required for specific metals in surface and ground waters of Yak TunnelCalifornia Gulch leadin g to confluence with the Arkansas River, specifi c

remediation alternatives , their costs and their effectivenes s cannot be

developed and considered in a realistic mode.

O ur detailed comments follow :

T he authors have not clarified the critical point s as to what

quantitative fraction s of the metal loadings in the surface-water

and ground-water flow s are actually attributable to the outflow

(modeled at maximum concentrations) from the Yak Tunnel . These

fraction s are vital data bearing on analysis of remediation

required for the Yak Tunnel phase of the total FS. One must

separate this phase from metal contribution s from the rest of the

California Gulch environment.

-2-
Both the Executive Summary and Sectio n 3 compare worst-case

(maximum) water concentration values for specifi c metals at

survey sites (surface water and ground water) in California Gulch

and the Arkansas River with indices of permissible exposure

levels established on a human health/environmental basis by the

Federal Government, includin g such indices as MCLs, MCLGs, AWQC

criteria, AIC values, AIS values, etc. Such comparisons are

valuable in that they begin the process of highlightin g metal

pollutant s of priorit y concern to the health of exposed biota

populations . But again, it is the fraction s of such pollutan t

concentrations stemming from Yak Tunnel outflow s that should

enter comparisons in this FS phase, not the total metal loads of

surface-water and ground-water supplies .

In making the comparisons between concentrations in surface-water

a nd ground-water supplies and permissible exposure levels ,

Sectio n 3 fail s to make any case for any real exposures of any

present or future populatio n sectors to these supplies . No case

is made for human use of California Gulch surface waters or

ground waters. No case is made for any excess risk to users of Arkansas River waters due to minerals derived from Yak Tunnel

outflow. The only theoretical exposure situation postulated for

human target populations , tied to Yak Tunnel outflow , is that of

children playin g in surface waters of the Gulch near the Tunnel

outflow .

T he failure to establish any credible exposure situations for

present or projected target population s in Sectio n 3 raises

serious questions whether the ground work has been laid for any

quantitative requirements for remediation based on potential

health effects . Lacking concrete exposure models , it is not

possible to discuss potential health effect s in target

population s via specific exposure routes and specific temporal

pattern s of exposure. In turn, therefore, the goals of a

remediation effor t cannot be established as based on a perceived

-3-
requirement to reduce metal concentrations in defined exposure

situations down to some specifi c residual values. Remediation

goals, and the alternative pathways to achieve them, have to be

based on quantitative assessments of how much remediation is

required, at what geographic locations , for what kind of user

population . These assessments are virtuall y missing in the FS.

T he EPA does not present any analysis of how the contaminant

profil e in the Arkansas River above the confluence with

California Gulch impacts on the situation below the confluence,

a nd of the relative magnitude of metal pollutio n downstream from

t he Yak Tunnel outflo w versus the natural Arkansas River

background.

T he toxicit y profile s for the major mineral contaminants (chiefly -

metals) presented in Section 3 are incomplete. They contain only

brief compilation s of the toxic signs which may be seen in test

animal systems or human population s exposed to high dail y doses

of specific pollutants . Thi s is not the information of prime

interest in working up an analysis of requirements and goals for

a potential remediation process. What is needed is a technical

analysis, metal by metal, of what concentrations in water are low

enough so that daily ingestion by humans would result in dosages

below any threshold for toxic actions in target populations , socalled No Observable Adverse Effec t Level s (NOAELs) on acute and

chronic bases. No data are presented in the profile s bearing on

this type of information , in justificatio n of any use of AIS or

A IC indices of safety .

Section 3 analyzes surface-water and ground-water intakes of

metals in terms of fraction s of AIS and AIC indices of EPAacceptable dail y intakes. Yet , no attempt is made to do anythin g

with these fraction s in terms of any settin g of justifiabl e

quantitative goals for any proposed remediation. Thi s would be

especiall y important for metals like cadmium and lead. It has

not been done in Section 3.

-M-
Followin g on the above point , since quantitative degrees of

remediation for specifi c metals in water supplie s under modeled

conditions have not been established in Section 3, we fai l to see

how any remediation based on reduction of potential health

effect s can be discussed in a meaningful way. Technologie s and

costs for various remediation option s have to be based on which

metals and how much of each have to be handled and removed.

Section 3 raises the general carcinogenesis issue but does

nothing with it as a limitin g factor driving any remediation

proposal s or options . The only result of the carcinogensis

treatment is a modeling of risk for arsenic ingested orally in

water supplied. No conclusions are reached, no attempt is made

to correct risks for natural arsenic background and its

variabilit y in that region, and no quantitative impact of arsenic

levels from Yak Tunnel outflo w is developed in alternative

remediation proposals . Has the EPA factored arsenic reduction

into its technology/cos t considerations?

On page 3-37, the excess lifetim e cancer risks from pollutant s is

calculated using an exponential form of a risk equation. Is this

really the case? Rather, didn' t they simpl y conduct the

calculation for arsenic, alone, by multiplyin g the EPA-potency

factor for orally ingested arsenic by some measure of average

daily lifetim e dose? What fractio n of this dose, by the way, is

uniquely attributable to Yak Tunnel outflow , and by what oral

ingestion scenarios are people exposed to that fraction ? Are

background corrections taken into account?

T he Section 3 treatment of hazard from a multicomponent exposure

scenario speaks to additivit y of individual component hazard

indices in forming a combined hazard index. We fai l to fin d any

evidence that this was done, and that such a combined index was

used in any way in justificatio n of specifi c postulated

-5-
remediation alternatives or remediation goals. Is this

discussion window dressing, or was it used to generate

quantitative remediation proposal?

Finally , in searching for any evidence of how exposure modelin g

might have driven remediation proposal s in this phase of the

total FS, note might be taken of the data on fish ecology in the

Arkansas River above, at and below the confluence with California

Gulch. The purpose of this sector of the discussion is not

clear. Are these data intended to drive any specifi c remediation

proposal based on the fraction s of Yak Tunnel output that reach

the confluence point? If so, the point is not developed in

Section 3 or the Executive Summary.

T he approach and methodolgies presented in Appendix B of ASARCO's

comments on the Yak Tunnel FS and RAP merit serious consideration

by EPA .

2. Inadequate or Speculative Database

Mining, processing, and smelting activities have occurred withi n the

Leadville area for over 125 years (EPA , 1987, Page iii) . The Yak Tunnel

drainage system was developed between about 1895 and 1923 and extends

approximately 4 miles into Iron Hil l and Breccia Hil l (EPA , 1987, Page 1-

3 ). Because of the complex and long history of the tunnel and the effect s

of mining uncertainties presentl y exist and wil l likel y always exist with

respect to the existin g conditions , particularl y as to the surface-water

and mine hydrology . These uncertainties must be taken into account in the

selection of the preferred alternative and development of the cost

estimates.

T he remedial action alternatives reviewed in the FS process all

entail collection and treatment of drainage from the Yak Tunnel . Implementation of these alternatives require rehabilitation of portions of

t he Yak Tunnel to provide for uninterrupted flo w and/or bulkheading. The

-6-
issue of rehabilitatio n of the Yak Tunnel and associated cost implication s

a re addressed in the ASARCO responses to the FS and RAP. These comments

warrant serious consideration by the EPA.

T he assessment of the site geology and existin g ground-water

conditions is largel y based on published reports prepared by others. As a

consequence, the assessment of both premining and existin g conditions is

estimated through the use of data from existin g sources and the exercise of

engineering experience and judgmen t (Page 2-2U) . Of the approximatel y 20

existin g domestic well s and the 21 new monitoring well s installed by the

E PA and the State of Colorado, none are located in the immediate vicinit y

of the Yak Tunnel . Given the fact that site-specific ground-water information has not been obtained for the Yak Tunnel area during the RI/FS, many

of the conclusions from the FS and RAP are based on inadequate information

and cannot be supported by fact .

3. Aquatic Life Evaluations

ASARCO in its comments on the Yak Tunnel Feasibilit y Stud y

(Sectio n 4.1 ) and the Remedial Actio n Plan address alternative

concentration limit s and the methodology for developin g applicable ,

relevant and appropriate criteria for cold water aquatic life . The

approach taken by ASARCO should be given serious consideration by EPA.

T he Yak Tunnel FS and RAP specif y activities intended (among other

things ) to improve conditions for aquatic lif e in the Arkansas River. The

need for these actions is based on reports indicatin g "that no fish and

only a few limited species of aquatic invertebrates are found in the

Arkansas River for 1.5 miles downstream of the confluence with California

Gulch (LaBounty , et al., 1975 and McLaughlin , 1981)." (Source: EPA Phase

I RI, May, 1987, Page 2-25).

T he quoted statement misrepresents existin g data on the reach of the

Arkansas River below California Gulch in that:

-7-
1. There is no documentation of the degree to which fish and

invertebrate population s in the reach were impacted by naturallyoccurring metal levels prior to mining. Impact s similar to those

reported in the Arkansas River have been documented to occur

naturally in streams adjacent to an unmined sulfide mineral

deposi t in Alaska (Houghton , 1983, Aquatic Biology , report to

Cominco Alaska, Inc ; see also Houghton , 1986, testimony before

t he Colorado Water Quality Control Commission, October 8).

2. The aquatic studies referenced have not been sufficientl y

rigorous to full y defin e the extent of any impact from California

Gulch discharges either in extent (distance downstream) or

magnitude (quantitative change from conditions that would exist

absent the California Gulch discharge or absent various

contributions to that discharge).

3. Studie s referenced (and a subsequent study by Rohline and

Boehmke, 1981) have not been able to distinguish between effect s

of metals from California Gulch, effect s of metals from other

sources, and effect s of sewage effluent . The decrease in

invertebrate species diversity noted in the RI could be due in

part to the nutrients added in sewage.

4. The study and LaBounty et al., 1975 includes no "operational

hydrology" and thus concluded that it is "impossible to quantify

effect s discussed" (page 5). Several aspects of the techniques

used were not up to present day standards. Questionable

practices included:

- Only total metals were analyzed; dissolved metal analyses more

closely identif y vital species that are biologicall y

available.

- No hydrology was done to allow calculation of flow s and metal

locatin g contributions.

-8-
- Invertebrate samplin g technique was not the same at all

stations and times.

- Fish samplin g used gear inappropriate for a large stream and

d id not provide a quantitative estimate of populations .

- Fish tissue analysis was done on preserved samples and fille t

samples included skin, thus introducin g unknown potential

sources of contamination.

5. No effort s have been made in the previous studies by the State of

Colorado or others to quantitatively separate effect s of metals

and the discharge from the sewage treatment plant on fish

population s from effect s of habitat in the Arkansas River below

i ts confluence with California Gulch.

6. There has been no systematic evaluation of spawning habitat or.

actual spawning activity in the reach.

T he observations and information on aquatics presented by ASARCO in

their comments (Sectio n 1.2) merit serious and detailed consideration by

EPA .

In summary, the information referenced on alleged aquatic lif e

impacts of California Gulch is incomplete and does not provide an accurate

or quantitative baseline for use in setting remedial action goals. The

state of the resource should be quantitativel y documented to provide a

basis for assessing the need for and success of any cleanup activities.

4. Institutional Issues

The FS is clearly deficien t in the area of institutional issues and

indeed, certain issues appear to have been completel y ignored. In

particular, the fact that the treatment facilit y would produce sludge which

wil l require a disposal facilit y has been ignored, as has been the

institutional problems of maintaining the Yak Tunnel in perpetuity . The

matter of which institutional organization will operate the treatment and

disposal facilitie s also appears to have been ignored.

-9-
T he fact that the treatment facilit y has the potential to produce a

hazardous waste has not been given serious consideration. If this occurs,

then the treatment remedy will increase, not decrease, the amount of

hazardous waste in the environment. It is also at variance with SARA,

which favors permanent solutions, rather than those which pose the

potential for additional sources of contamination.

T he maintenance of a Mine Tunnel (Yak ) and the operation of a

treatment plant , and a sludge disposal facilit y in perpetuit y raises very

serious institutional and societial questions which have been completel y

ignored in the FS. The fact that these questions have been ignored would

seem to impl y that the authors of the document do not wish to acquaint the

E PA decisionmaker with the ful l consequences of his actions in making a

ROD. To decide in 1987 to operate such a complex set of facilitie s forever

is a monumental decision. Who will operate these facilities? Who assumes

financial and legal responsibilities for the facilitie s and the sludge. H ow wil l long-term contingencies be handled? What regulatory requirements

apply ? Wil l State and local permit s be required? Who assumes

responsibilit y for operational failures and malfunctions? These are but a

few of the questions that a decision to operate in perpetuit y raise. These

matters must be full y explored before such an important and far reaching

decision is made. The FS fail s to even mention the complex nature of this

subject.

5. Operable Unit Concept

T he viabilit y of an operable unit remedy is greatl y influenced by the

actual remedy selected. The mine pluggin g remedy is largely a stand-alone

action which potentiall y will not interact with subsequent remedies for the

entire site. On the other hand, the selection of the treatment remedy

makes designatin g the Yak Tunnel as an operable unit inappropriate in that

it is not a permanent solution , and wil l subsequently interact with as yet

unknown additional remedies for the remainder of the site or perhaps the

entire site.

-10-
Whil e the segmentation of the California Gulch/Ya k Tunnel Superfun d

Sit e into operable units may be appropriate under certain circumstances,

such a decision needs to be made with great care. The law requires that

the remedial actions selected for each operable unit be consistent with the

final remediation selected for the overall site.

T he FS does not address the integration of remedial actions at the

Y ak Tunnel with the rest of the site. Thought should be given to

synchronization and coordination of operable units so that sources of

contamination, regardles s of area, can be remedied firs t to avoid or at

least minimize recontamination. A carefull y planned and executed sequence

of remedial actions should follo w with construction and transportation

schedules, and logistic s specified so that any particular remedial action

does not negatively impact on an already completed remedial action.

Identification , sizing, design , permitting, and cost effectivenes s of

remedial action alternative components such as treatment and disposal

facilitie s probably can only be determined by integratin g operable unit

feasibilit y studies.

Ideally , feasibilit y studies for operable units should be completed

at the same time. Thi s would allow the ROD process to use conclusions from

a ll RI/FSs. Given that this is not now possible at the California

Gulch/Ya k Tunnel site, then at the very least the possibilit y of delayin g

•

t he final decision to implement the Yak Tunnel remedy until the FS for the

rest of the site is assessed deserves serious consideration. In that way,

the original decision on the Yak Tunnel can be revisited in light of data,

conclusions and remedial option s for the remainder of the site.

T he selection of a treatment remedy for the Yak Tunnel discharge

appears to be dependent upon the loadin g analysis contained in the Phase I

R I. The loadings only superficiall y address the contribution from, for

example, Upper California Gulch. Consequently, the selection of a specifi c

remedy for the Yak Tunnel and any assessment of the effectivenes s of its

implementation becomes of questionable value. Furthermore, the cleanup

-11-
standards proposed in the FS do not have any direct relevance to the

cleanup goals for the Arkansas River. In summary, settin g of discharge

limitation s for the Yak Tunnel treatment facilit y in the absence of a

complete site cleanup program is inappropriate insomuch as the ultimate

effec t of other sources of contamination on the Arkansas River is unknown.

By selectin g a treatment remedy for the Yak Tunnel before the

remedial action for the remainder of the site is known, opportunitie s are

lost . Those could include the location and operation of a combined

treatment plant . It may be preferable to maintain a treatment plan t near

t he confluence of California Gulch with the Arkansas River to treat both

t he Yak Tunnel discharge and contaminated water from other California Gulch

sources.

By selectin g a treatment remedy for the Yak Tunnel which incorporates

a 1.8-acre RCRA-type disposal before the remedial actions for the remainder

are known, some possibilities for the disposal of treatment sludge have

either been ignored or wil l be superseded. For example, certain portions

of the mine workings may be suitable for backfillin g with sludge. Alternatively , if tailin g ponds are in operation in the Leadville area,

then it may be feasible and more cost effective to dispose of sludge in

these ponds, rather than buildin g an RCRA-type landfill .

Cleanup standards for the discharge from the Yak Tunnel treatment

plan t are proposed in the FS. These standards, however, are unsupported

because they do not have any direct relevance to the ultimate cleanup .goals

f or the Arkansas River. In summary, settin g of discharge limitation s for

the Yak Tunnel treatment facilit y in the absence of a complete site cleanup

program is inappropriate insomuch as the ultimate effec t on the water

quality of the Arkansas River is unknown.

Preparation of separate RI/FSs for differen t parts of the site result

in duplicatio n and repetitivenes s in the documentation. Thi s most

certainly will significantl y increase the response costs without any

apparent enhancement in the technical quality of the work product . It also

will result in a waste and misuse of valuable technical resources.

-12-
6. Evaluation and Selection of Preferred Alternatives

T he identificatio n and evaluation of remedial alternatives for the

Yak Tunnel appears to be based on the assumption that a treatment facilit y

is required at the portal of the Yak Tunnel . Other alternatives , includin g

"low-tech" solutions or relocation of the treatment plant to the confluence

of California Gulch and the Arkansas River, are either not or only

superficiall y addressed.

Alternative 2 - The alternative for total Yak Tunnel pluggin g

(Alternative 2) has been dismissed improperly.

T he dismissal is based on uncertainties about the effec t of the Iron

Hill/Yak Tunnel portal plug which are not substantiated. The concerns

raised are not sufficien t to warrant elimination of Alternative 2 as

discussed in the followin g paragraphs.

T he dismissal is based on assumed pattern s of ground-water movement

which are not substantiated by analytical results or field data.

T he dismissal failed to adequately consider the potential for

chemical bufferin g of mine water as it seeps through natural rock and soil

materials. Natural bufferin g can significantl y reduce the level of metals

in the water which ultimatel y enters the California Gulch ground-water

system.

T he dismissal discussed but failed to consider adequately the

positive effect s of post pluggin g monitoring programs. Ground-water

monitoring programs can be used to identif y areas of contaminated seepage

and, coupled with extraction systems, can be effectivel y used to contain

a ny contaminated seepage to the vicinity of the Yak Tunnel . Collected

seepage could be reintroduced to the mine water pool at nominal cost and at

a potentiall y low environmental risk.

-13-
T he dismissal failed to consider the beneficial effect s of a viable,

ancillary, potential remedial action, that of raising the pH of the rising

pool of mine water in the Iron Hil l workings through the additio n of

lime. Lime additio n and mixing could result in the precipitatio n of most

metal s within the mine water system prior to movement of this water into

t he surrounding ground-water system(s) .

Alternatives 5 and 7 - Alternative s 5 and 7, which call for partial

mine pluggin g and treatment of acid mine water, have been incorrectly

selected as suitable actions.

Neither Alternative 5 nor 7 represent permanent solutions to the Yak

Tunnel drainage problem. They , in fact , represent ongoing temporary

solutions which do not address the source of the acid mine drainage. They

include no provisions for any future improvement in the discharge.

Neither alternative was compared to a properl y evaluated Yak Tunnel

pluggin g alternative.

Both alternatives failed to identif y or address the potential impact

of the wastes produced by the proposed treatment facilit y on the environment. The metal hydroxide sludge produced must itsel f be handled as a

potentiall y hazardous substance. Although the FS is unclear on whether

secondary treatment by ion exchange is included in either Alternative 5 or

7, the regenerant brine solutions from this process would constitute a

second significan t residual waste management problem.

Neither alternative presents data to indicate that a suitable

location for a RCRA disposal site (fo r the water treatment facilit y wastes)

can be found within the vicinity of the Yak Tunnel Operable Unit . Barring

t he availabilit y of such a suitable site, offsit e disposal of the sludge

will be required. Offsit e disposal is both more difficul t to implement and

more costly than disposal to an onsite facility .

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T he FS, by recommending a 1.8-acre RCRA-type facilit y for sludge disposal, underestimates the potential sludge generation from the Yak Tunnel

treatment facility . While it is not possible to predict the sludge

generation rate with precision, it can be estimated that as much as 1.5 to

2.5 acre-feet of sludge wil l be generated per year. Thi s estimate is

based, in part , on the more realistic dewatered sludge solids content of 20

to 25 percent versus the 50 percent solids content assumed in the FS. With

stabilization , the volume of sludge is likel y to increase to 2.5 to 4 acrefeet per year. Thus , the disposal facilit y would likel y need an area about

five times (9 acres) that recommended in the FS. Even then, it would have

a finit e lif e of between 30 and 50 years. Given that EPA's remedy will

operate in perpetuity , there will be a need to repeatedly build sludge

disposal facilities .

T he FS completel y fail s to address the problems that will be created

by the sludge generated by the treatment plant . The sludge will require

substantial stabilization before it could be placed in a landfil l and with

a suitable cap. Thi s additional stabilization will significantl y increase

both the capital and operation costs; cost estimates in Appendix L of the

FS would appear to underestimate operating costs for sludge dewaterin g and

stabilization .

Detailed Analysi s - A revised detailed analysis of Alternatives 2, 5,

and 7, taking into account the issues and comments listed above, would

conclude that Alternative 2, Total Yak Tunnel Plugging, warrants

considerably more scrutiny by the EPA for the followin g reasons:

o Alternative 2 is the only alternative which will result in the

reduction of the generation of acid mine drainage from the Yak

Tunnel .

o Alternative 2 is likely to be more effective in reducing the

mobility , toxicity , and volume of the contaminants. Source

treatment is carried out in-situ and all direct discharge is

eliminated.

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o Alternative 2 requires a lower level of tunnel rehabilitatio n and

consequently, reduces the risk to worker health and safety , as

well as to the environment, as compared to Alternative s 5 and 7.

o Alternative 2 has the lowest potential for adverse environmental

impact since metal hydroxide sludges do not need to be disposed

of and seepage from the mine water pool can be monitored and, if

contaminated, can be collected and returned to the mine water

pool.

o Alternative 2 can be implemented at a significantl y lower cost

than Alternatives 5 and 7.

Alternative 2, Total Yak Tunnel Plugging, as described in a Proposal

f or Agreement, California Gulch/Yak Tunnel Site , dated August 27, 1987,

submitted by ASARCO to the EPA generally describes a potentiall y acceptable

approach to pluggin g of the Yak Tunnel which should be considered by the

EPA. In considerating the pluggin g option , thought should be given to the

following:

o The interim treatment system proposed to ameliorate Yak Tunnel

drainage durin g the tunnel pluggin g operation should be reduced

in scope to include basic lime addition , a settlin g pond,

followed by discharge to the 'diversio n channel.

o The potential for surges will largel y be eliminated through

initial tunnel rehabilitation activities which will have to

assure worker safety . Seasonal flo w variations are a separate

and predictable discharge that, in contrast to surges, can be

planned for and handled separately.

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o The need for, and the effectivenes s of, the proposed lined

channel in upper California Gulch should be reevaluated. Thi s

lined channel should be eliminated unless a positive need for it

and a positive benefi t from its installatio n can be confirmed.

o A monitoring/contingenc y procedure should be developed which

focuses on potential Yak Tunnel discharges to the shallow groundwater system in California Gulch. The procedure should address:

- Visual monitoring for surface discharge

- Ground-water monitoring

- Abatement of surface discharges of contaminated water

- Collection , extraction , and reinjectio n of contaminated ground

water, which would obviate the need for a treatment plant .

o There appears to be no need to contemplate installatio n of a

permanent treatment plan t to handle seepage. An effective

monitorin g program will detect surface discharges and a

sealing/groutin g program can effectivel y abate them. A

monitorin g program can detect seepages to the shallow alluvium in

California Gulch. If this seepage is determined to be a problem,

a system of extraction well s and/or ditches can be used to

intercept the seepage and pump it back into the mine workings. Thi s system would effectivel y preclude movement of significan t

amounts of seepage into the shallow alluvium of California Gulch.

o Detail s of the lime addition/mixin g procedure proposed by ASARCO

should be carefull y reviewed and monitored to assure it will

provide for effective mixin g of treated and untreated waters

within the mine pool.

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