Reference 21 Page 1INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT

We Protect Hoosiers and Our Environment.

Michael R. Pence Governor

Mr. Ramin Ansari Chemtura Corporation 1801 US Highway 52-W West Lafayette, IN 47906

Dear Mr. Ansari :

100 N . Senate Avenue • Indianapolis, IN 46204

(BOO) 451-6027 • (317) 232-8603 • www.idem.IN.gov

Thomas W. Easterly Commissioner

April 7, 2015

Re: IDEM Response to Chemtura's January 30, 2015 Submission Former Connor Corporation Site 3500 East 20th Street Indianapolis, IN 46218 VRP #6000903

The Indiana Department of Environmental Management (IDEM) has completed its review of the submission dated January 30, 2015, entitled "Proposed Sewer Abandonment and Rerouting Conceptual Plan" (available in IDEM's online Virtual Fi le Cabinet (VFC) as document #80014611), prepared by Environmental Resources Management. IDEM has also reviewed numerous other documents and comment letters associated with the former Connor Corporation facility (Site). 1 The Site, which is owned by Chemtura Corporation (Chemtura), is located at 3500 East 20th Street in Indianapolis, Indiana.

As explained below, IDEM is recommending that the Commissioner resolve the ongoing dispute between Chemtura and IDEM by determining that (1) Chemtura was required to provide additional Site characterization data as requested by IDEM, (2) Chemtura's refusal to comply means that the Voluntary Remediation Agreement between IDEM and Chemtura is terminated and/or void such that the Site is no longer enrolled in the Voluntary Remediation Program, and (3) this dispute cannot be resolved through mediation.

As you know, by letter dated December 23, 2014 (VFC#80004687), Chemtura formally invoked the dispute resolution provisions set forth in Section XVI of Chemtura's Voluntary Remediation Agreement with IDEM (VRA, VFC#47160092).2 By letter dated

1 Specifically, in addition to the January 30, 2015 submission (VFC#80014611 ), IDEM has reviewed Chemtura submissions dated August 16, 2002 (VFC#68120838), October 31, 2013 (VFC#69128537), November 25, 2014 (VFC#80014535), December 12, 2014 (VFC#80014538), December 23, 2014 (VFC#80004687), and December 30, 2014 (VFC#80004685). IDEM has also reviewed its own correspondence dated December 17,2002 (VFC#47160115), March 20,2014 (VFC#69841453), December 16, 2014 (VFC#80014538), December 23,2014 (VFC#80019092), and January 9, 2015 ~VFC#80005925).

When Chemtura's VRA was executed in November 2001, Chemtura wasl<nown-as-Crompton Corporation.

An Equal Opportunity Employer 0 • Recycled Paper A State that Works -

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December 30, 2014 (VFC#80004685), Chemtura provided its "Updated Notice of Technical Dispute." The essential issue in dispute, which will be discussed in greater detail below, is whether Chemtura has provided sufficient ·site characterization data to enable IDEM to properly evaluate or approve Chemtura's proposed voluntary remediation work plan (RWP). By letter dated January 9, 2015 (VFC#80005925), IDEM provided its initial written response to Chemtura's notices of dispute resolution dated December 23 and 30, 2014. Subsequently, representatives of IDEM and Chemtura met in person and attempted in good faith to negotiate a resolution of their differences. During that meeting, Chemtura proposed to submit to IDEM a plan for Site modification work that, according to Chemtura, would obviate any need for the additional Site characterization data that IDEM has requested from Chemtura. IDEM agreed to review that proposed plan and to provide a written response to Chemtura. This letter constitutes IDEM's response to Chemtura's January 30, 2015 plan submission, as well as IDEM's second written response for purposes of the dispute resolution proceedings that Chemtura formally initiated on December 23, 2014.

In short, even after review of Chemtura's January 30, 2015 submission, it remains IDEM's conclusion that, although this Site has been enrolled in the Voluntary Remediation Program (VRP) for more than thirteen years, contamination emanating from the Site still has not been adequately delineated or defined, and an approvable RWP still has not been presented to this agency. The information presented by Chemtura to date does not sufficiently demonstrate that all potential exposure pathways associated with the contamination at this Site have been appropriately addressed. Thus, IDEM is unable to make a determination that there is no current or future risk associated with the contamination. Furthermore, IDEM does not agree with Chemtura that the plan submitted on January 30, 2015, would adequately address the vapor intrusion issues associated with the sewer that runs from the Site into the adjacent residential neighborhood.

Because IDEM does not concur with Chemtura's position, the Commissioner must make a determination regarding the dispute in accordance with paragraph 49 of Chemtura's VRA. In IDEM's view, the issues that the Commissioner must resolve are as follows:

1. Was Chemtura required to comply with IDEM's outstanding requests for additional Site characterization data?

2. If so, does Chemtura's refusal to comply mean that the VRA between IDEM and Chemtura is terminated and/or void such that the Site is no longer enrolled in VRP?

3. Can this dispute be resolved through the discretionary mediation process set forth in paragraph 49 of the VRA?

In light of the provisions of Indiana Code (IC) 13-25-5 and Chemtura's VRA, IDEM's conclusion that Chemtura still has not adequately delineated or presented an approvable RWP, and the extreme duration of this Site's participation in VRP, IDEM's position with respect to the foregoing issues is as follows:

1. Because IDEM's requests for additional Site characterization data are authorized under IC 13-25-5 and the VRA, consistent with published IDEM guidance, and

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reasonable in light of the circumstances that exist at the Site, Chemtura was required to provide additional data as requested .

2. Due to Chemtura's refusal to provide the additional data requested by IDEM, Chemtura's VRA is terminated pursuant to VRA paragraph 21. Additionally, and in the alternative, the VRA is void pursuant to VRA paragraph 19. Additionally, and in the alternative, the VRA is terminated pursuant to VRA paragraph 60. Thus, the Site is no longer enrolled in VRP.

3. This dispute cannot be resolved through the mediation process.

What follows is an explanation of the reasoning behind IDEM's position.

1. Chemtura was required to provide additional data as requested.

Both the governing statute and the VRA grant IDEM the authority to request additional information during evaluation of a proposed RWP. Further, the statute and the VRA clearly require Chemtura to provide the requested information. Even if the VRA's dispute resolution process gives Chemtura the ability to challenge IDEM's information requests, those requests should be upheld and enforced because they comport with the statute, the VRA, and published IDEM guidance, and because they are perfectly reasonable under the circumstances.

a. IDEM had authority to request additional data, and Chemtura was obligated to comply.

There can be no dispute as to whether IDEM has authority to request additional information during its evaluation of a proposed RWP. IC 13-25-5-9(b) provides:

At any time during the evaluation of a proposed voluntary remediation work plan, the commissioner or the department may request that an applicant submit additional or corrected information to the department. An applicant may:

(1) comply with the request; or (2) withdraw the applicant's proposed voluntary remediation work plan from consideration.

Similarly, paragraph 21 of Chemtura's VRA provides: "IDEM may request Applicant.to submit additional or corrected information pursuant to IC § 13-25-5-9(b). The Applicant may comply with the request or withdraw the proposed plan from consideration." See also VRA paragraph 22 ("Additionally, IDEM may request the applicant to supply additional information or corrected information pursuant to IC § 13-25-5-9(b).").

Thus, both the governing statute and the VRA clearly empower IDEM to request additional information during evaluation of a proposed RWP. Moreover, both the statute and the VRA provide that Chemtura can either comply with the request or withdraw its proposed RWP from consideration. The requirement for VRP participants to comply with IDEM's data requests gives effect to the clear legislative intent that participation in the Voluntary Remediation Program should

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be voluntary and cooperative. That requirement also serves as something of a counterbalance to the qualified legal immunity mandated by IC 13-25-5-18(g). That immunity is a significant benefit enjoyed by all VRP participants, including Chemtura. In return for that benefit, participants like Chemtura are required to provide site information at IDEM's request.

IDEM's authority to direct Chemtura to perform additional Site characterization work is also set forth in paragraph 34 of the VRA, which provides: "The IDEM Project Manager shall have the authority to halt, conduct, or direct any work required by this Agreement and/or any response actions or portions thereof if Site conditions present an imminent and substantial threat to human health or the environment." Unless and until Chemtura provides Site characterization data that demonstrates the nature and extent of the contamination, IDEM cannot foreclose the possibility that conditions at the Site present an imminent and substantial threat to human health or the environment.

In addition to authorizing IDEM to request additional information from Chemtura, the governing statute and the VRA both obligate Chemtura to comply with such requests. As discussed above, Chemtura's obligation to comply is explicit under IC 13-25-5-9(b) and VRA paragraph 21. VRA paragraph 15 is also explicit, stating: "Applicant shall provide all necessary information for a Remediation Work Plan for the Site." Until the extent of the contamination is known, it is impossible for IDEM to determine whether an RWP is adequate. Thus, the additional data that IDEM has requested is necessary information.

Chemtura's obligation to comply with IDEM's requests for information is also strongly implied elsewhere. For example, IC 13-25-5-?(b) and VRA paragraph 20 contain numerous requirements as to what must be included in a proposed RWP, such as a proposed statement of work to accomplish the remediation, as well as plans concerning health and safety considerations. Similarly, IC 13-25-5-8.5 and VRA paragraph 19 require the RWP to specify remediation objectives for the Site. Under IC 13-25-5-9(a)(3), IDEM is required to "[r]eview and evaluate the proposed voluntary remediation work plan for quality, efficiency, and safety based on guidelines established by the department." IDEM cannot legitimately evaluate whether proposed remediation objectives are acceptable, whether the proposed work will accomplish those remediation objectives, or whether the plans provide adequate protection of health and safety, if IDEM is not first given the opportunity to develop a thorough understanding of the site and the contamination in question. In other words, for IDEM to meet its obligations under the statute and the VRA, the VRP participant must first provide IDEM with a sufficient site characterization.

In sum, IDEM was undeniably authorized to request additional Site characterization data from Chemtura, and Chemtura was obligated to comply with IDEM's requests. In the next section of this letter (section 1.b.), IDEM will demonstrate that, to the extent the VRA's dispute resolution process gives Chemtura the ability to challenge IDEM's information requests, those requests should be upheld and enforced because they comport with the govern ing statute, the VRA, and published IDEM guidance, and because they are perfectly reasonable under the circumstances.

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b. Content and technical justification of IDEM's requests for additional data.

As Chemtura has acknowledged in its discussions with IDEM, there is a combined storm/sanitary sewer that begins on the Site. From its point of origin, the sewer pipe runs south through the Site, beneath the former Connor Corporation building , then takes an approximately ninety-degree turn and runs west into the residential neighborhood beyond Olney Street. The pipe exits the Site and continues to run west, just north of and roughly paral lel to Brookside Parkway North Drive. The orientation of the sewer can be seen on the attached Figure 2 and Figure 4, which Environmental Resources Management prepared on Chemtura's behalf.3 It is undisputed that the sewer and the backfill surrounding the sewer pipe can act as preferential pathways for environmental contaminants. It is also undisputed that residences along Brookside Parkway North Drive have direct lateral connections to this sewer.

Regarding the presence of contaminants within preferential pathways like the sewer backfill, Section 1 0.5.2 of IDEM's Remediation Closure Guide (RCG)4 provides:

If the preferential pathway samples indicate the presence of site contaminants above SGss [subslab soil gas] screening levels, or if any SGss or CSA [crawl space air] sampling result exceeds the applicable screening levels, the building warrants further investigation . That investigation should include paired SGss/CSA and lA [indoor air] sampling.

Thus, RCG Section 1 0.5.2 calls for SGss screening levels to be used when evaluating samples taken within a preferential pathway like the sewer backfill. IDEM's methods for calculating screening levels, including SGss levels, are set forth in RCG Section 1 0.4, which provides that one such method is to "divid[e] the IASL [indoor air screening level] by an appropriate media specific attenuation factor listed in Table 1 0-A." According to Table 1 0-A of the RCG (page 134), the appropriate attenuation factor for calculating SGss screening levels for residential areas is 0.1.

The main contaminant of concern for purposes of this dispute is trichloroethylene (TCE, also known as trichloroethene). For residential areas, Table A-6 of the RCG provides an indoor air screening level of 2.1 J..lg/m3 for TCE. (Remediation Closure Guide with 2014 Screening Levels Tables at page 38.) In accordance with RCG Section 10.4 and Table 1 0-A, residential SGss screening levels can be calculated by divid ing that IASL by 0.1. Therefore, the applicable screening level for TCE in the sewer backfill is 2.1 J..lg/m3

divided by 0.1, which equals 21 J..lg/m3. Pursuant to RCG Section 1 0.5.2, if samples

from the sewer backfill indicate the presence of TCE above 21 J..lg/m3, then "the bui lding

3 Figures 2 and 4 are from Chemtura's Vapor Intrusion Evaluation Report dated November 25, 2014 iVFC#80014535).

VRA paragraph 19 allows Chemtura to develop its RWP in accordance with "any guidance or other documents approved by VRP." Chemtura has repeatedly cited the RCG as appropriate guidance with respect to vapor intrusion. (E.g., VFC#80004687 at page 1 (referring to the RCG as "applicable guidance':), page 3 ("[T]he 0.01 attenuation factor as listed within Section 10.4 of the RCG is appropriate."), and page 4 (citing the RCG regarding the attenuation factor for contaminants in sewer gas).) VRP approves the RCG and agrees that it provides appropriate guidance regarding vapor intrusion.

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warrants further investigation . That investigation should include paired SGss/CSA and lA sampling ."

A soil gas sample taken on August 27, 2014, at soil gas port SG-1 D, which is located in the sewer backfill near the intersection of Olney Street and Brookside Parkway North Drive, indicated the presence of TCE at a concentration of 36.7 f.Jg/m3

. (Figure 2, attached.) Another soil gas sample taken on August 27, 2014, at soil gas port SG-3, which is located in the sewer backfill near the intersection of Adams Street and Brookside Parkway North Drive, indicated the presence of TCE at a concentration of 42.6 j.Jg/m3

. (Figure 2.) In light of these two sampling results indicating the presence of TCE above 21 j.Jg/m3

, there can be no question that RCG Section 1 0.5.2 calls for further investigation of homes along Brookside Parkway North Drive. Section 1 0.5.2 is also clear that "[t]hat investigation should include paired SGss/CSA and lA sampling ." Therefore, IDEM has asked Chemtura to conduct additional vapor sampling for the homes along Brookside Parkway North Drive between manhole #113266 and manhole #113267. That additional investigation should include indoor air sampling , as well as subslab soil gas or crawl space air sampling.5

IDEM is also extremely concerned about the results of samples taken within the sewer itself:

• A sewer gas sample taken within the sewer on August 27, 2014, at manhole #4, which is located on-Site near the point where the sewer turns westward , indicated the presence of TCE at a concentration of 2,320 f,Jg/m3

. A duplicate sewer gas sample taken the same day at the same manhole indicated the presence of TCE at a concentration of 2,330 j.Jg/m3

. (Figure 4, attached.)

• A sewer gas sample taken within the sewer on August 27, 2014, at manhole #113267, which is located near the intersection of Olney Street and Brookside Parkway North Drive, indicated the presence of TCE at a concentration of 5,080 j.Jg/m3

. (Figure 4.)

• A sewer gas sample taken within the sewer on August 27, 2014, at manhole #113266, which is located near the intersection of Adams Street and Brookside Parkway North Drive, indicated the presence of TCE at a concentration of 12,600 j.Jg/m3

. (Figure 4.) This TCE sample was taken less than one hundred feet from multiple homes along Brookside Parkway North Drive.

In addition to demonstrating a need to conduct additional vapor sampling in and around homes along Brookside Parkway North Drive, the existing sampling results also show that the off-Site contamination related to the sewer line is not fully delineated. Specifically, the westward extent of contamination along the sewer line is not yet known. Therefore, aside from requesting additional vapor sampling for homes along Brookside Parkway North Drive, IDEM has asked Chemtura to develop and provide a plan to

5 The two samples in question were taken over three hundred feet apart along the sewer line in front of the houses, and the soil gas TCE concentrations were consistent despite that distance. This may be evidence that contamination from inside the sewer is continually leaking through cracks and joints to create a soil gas plume along the sewer line. Further vapor sampling in and around the residences would quickly determine whether such a plume is currently threatening human health in the homes.

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continue the delineation investigation westward along the sewer line on Brookside Parkway North Drive. To date, IDEM has received no such plan from Chemtura.

By letter dated December 23, 2014, Chemtura formally invoked the dispute resolution provisions set forth in Section XVI of the VRA. Chemtura disputes IDEM's instruction to proceed with direct indoor air measurements in homes along Brookside Parkway North Drive. Specifically, Chemtura argues that the attenuation factor of 0.1 is not appropriate for calculating screening levels for contaminants in the sewer backfill. Chemtura states: "Attenuation factors are addressed within Section 10.4 of the RCG, which states that 0.01 is an appropriate attenuation factor for residential soil gas samples collected at depths greater than 5 feet below a building foundation with no distinction made with regard to soil types or preferential pathways." (VFC#80004687 at page 3.) In other words, Chemtura asserts that the applicable screening levels should be calculated by dividing the pertinent IASLs by 0.01, which is the default attenuation factor under RCG Table 1 0-A for deep (more than five feet below the building foundation) exterior soil gas (SGe) in residential areas. According to Chemtura, the screening level for TCE in the sewer backfill should be 2.1 1Jg/m3 divided by 0.01, which equals 210 1Jg/m3

.

Chemtura's claim that RCG Section 10.4 makes no distinction with regard to preferential pathways is false. Section 10.4 provides in part: "Soil contamination directly beneath or near a building, as well as the existence of preferential pathways, can indicate a higher potential for VI [vapor intrusion] to occur through soi l contamination." That heightened potential for VI counsels in favor of a greater attenuation factor; that is, a factor that assumes less attenuation than does the default factor provided in Table 1 0-A.

More importantly, Chemtura's argument completely ignores RCG Section 1 0.5.2, which clearly accounts for preferential pathways. Section 1 0.5 .2 calls for SGss (not SGe) screening levels to be used when evaluating samples taken within a preferential pathway like the sewer backfill ("If the preferential pathway samples indicate the presence of site contaminants above SGss screening levels ... the building warrants further investigation." (emphasis added)). Chemtura is simply mistaken in asserting that that the RCG calls for an attenuation factor of 0.01 for contaminants in the sewer backfill.

In its December 23, 2014 letter, Chemtura also addresses the appropriate attenuation factor for contaminants in the sewer gas (vapor within the sewer). Chemtura is correct that neither IDEM nor U.S. EPA has published screening levels or attenuation factors specifically for contaminants in sewer gas. However, IDEM reiterates that sewer gas samples from the residential neighborhood in question indicate the presence TCE at concentrations up to 12,600 1Jg/m3

. For that concentration of TCE to be considered nonthreatening to human health, the appl icable attenuation factor would have to be less than 0.000166. Again, residences along Brookside Parkway North Drive have direct lateral connections to the sewer. Unlike contaminants in the soil gas, which would have to migrate through soil in order to make their way into the homes (and which are subject to the attenuation factor of 0.1 ), contaminants in the sewer gas could potentially flow unimpeded through the lateral connections and into the homes. This is especially possible given the age of the homes in question. Furthermore, regardless of the appropriate attenuation factor for contaminants in the sewer gas, RCG Section 1 0.5.2 unquestionably calls for further investigation of homes along Brookside Parkway North

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Drive in light of the two soil gas sampling results indicating the presence of TCE above 21 j.Jg/m3

.

In summary, IDEM's outstanding requests for additional Site characterization data are perfectly consistent with the guidance set forth in IDEM's Remediation Closure Guide, and Chemtura's refusal to provide the requested data is contrary to that guidance.

c. The requested data was still necessary despite Chemtura's January 30, 2015 submission.

On January 22, 2015, as part of the dispute resolution process, representatives of IDEM and Chemtura met in person and attempted in good faith to negotiate a resolution of this dispute. During that meeting, Chemtura proposed to submit to IDEM a plan for Site modification work that, according to Chemtura, would eliminate concerns about vapor intrusion into the homes near the Site. IDEM agreed to review the plan and determine whether it adequately addresses IDEM's vapor intrusion concerns. Chemtura later submitted its "Proposed Sewer Abandonment and Rerouting Conceptual Plan" (Plan) dated January 30, 2015, and IDEM has completed its review of the Plan.

Chemtura's Plan involves de-commissioning the current sewer and injecting it with grout "until the entire inside of the Sewer pipe is completely filled." Chemtura states this will "eliminat[e] the ability for sewer gas or sewage water to migrate or flow" through the pipe. (VFC#80014611 at page 6.) Chemtura also proposes to install approximately three grout curtains around the abandoned sewer backfill "[i]n order to prevent potential vapor or groundwater migration within the Sewer trench backfill. " (VFC#80014611 at pages 6-7.) Lastly, Chemtura's plan calls for a new, rerouted sewer that will allow for future use of the Site. According to Chemtura, the rerouted sewer "is proposed within an area of the Site away from groundwater impacts in order to prevent the possibility of creating an additional preferential pathway for contaminant migration at the Site." (VFC#80014611 at page 7.)

As its name suggests, Chemtura's Plan is only conceptual. Chemtura indicated on January 22, 2015, that it was working with an engineering firm to develop its Plan. Thus, IDEM's understanding was that the Plan would include specific information regarding design and testing for the proposed sewer plugging. However, the Plan contains no such engineering details. A more complete plan would need to be submitted, and reviewed and approved by IDEM, before it could be implemented. Also, Chemtura has not applied for, let alone received, the necessary permits from the sewer authority to initiate the sewer reroute. Even in the best-case scenario, Chemtura would have a significant amount of work to do before it could begin implementing its Plan. During that interim period, the residents of the neighborhood adjacent to the Site may well be exposed to harmful levels of contaminants. Vapor sampling in the homes as requested by IDEM could quickly provide exposure information, and if sampling were to reveal that mitigation is needed, a remedy for the residences could be in place in short order. It bears noting that the dwindling heating season is the optimal time of year to conduct lA sampling.

Further, even if Chemtura were to develop a more specific plan and obtain the necessary permits, IDEM would still have a number of concerns about the Plan's efficacy. First, IDEM does not agree that the Plan will "[i]nstantaneously eliminate 100%

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of all vapor intrusion risks associated with the sewer" as Chemtura claims. (See VFC#80014611.) Chemtura proposes to plug the sewer only as far west as manhole #113267. The homes along Brookside Parkway North Drive are all west of manhole #113267, and the existing sampling results show significant contamination is already present in and around the sewer west of manhole #113267. Chemtura's Plan would do nothing to remediate that existing contamination or prevent it from reaching residences. Moreover, the known history of releases from the Site to the sewer dates back to at least 2001. Based on that history and the existing sampling results, it is very likely that contamination has leaked out of the sewer and backfill near the structures along Brookside Parkway North Drive. Thus, even if Chemtura's Plan addressed the contamination that already exists within the sewer and backfill west of manhole #113267, it would do nothing about likely contamination that has already escaped from the sewer and backfill. In short, while the Plan might prevent further releases to the sewer from migrating toward the homes via the sewer pipe and backfill, it does not sufficiently address releases that have already occurred . IDEM guidance and experience indicate that further vapor assessment is needed, including indoor air sampling of the homes and further delineation westward along Brookside Parkway North Drive. Controlling Site releases would be necessary for any approved closure.

Secondly, IDEM is doubtful of Chemtura's claim that the Plan would "[a]ddress long­term remedial objectives of containing contaminated groundwater and vapors on-site." (See VFC#80014611.) As can be seen in the attached Figure 1,6 contamination is already going off-Site to Brookside Park. Chemtura's Plan contains no provisions for contaminant recovery or discussion of where the rerouted contaminated water would go after the sewer was plugged. Chemtura claims the Plan would alleviate IDEM's concerns about plume stability, but unless the displaced groundwater were collected, its impacts on plume flow would be unknown and the plume stability process would have to start over. If Chemtura simply plugged the sewer and installed grout curtains as proposed, some of the contaminated water currently in the sewer and backfill would likely migrate to Brookside Park, where it could possibly threaten Pogues Run. Also, IDEM would expect flow in the backfill to increase if the sewer were plugged, and some of that water might seek and find another release point. For instance, there is a possibility that contaminated water could migrate to the neighborhood using the new sewer as a preferential pathway. Wells in the proposed reroute area are widely spaced, so further delineation would be necessary to ensure that the new sewer would not become contaminated. Even if the new sewer did not serve as a preferential pathway, plugging the current sewer could alter the groundwater flow, with unknown effects. This range of possible outcomes would need to be addressed before IDEM could approve Chemtura's Plan.

Regarding contamination making its way into Brookside Park, Chemtura's representatives stated on January 22, 2015, that Chemtura has had no discussion with the City of Indianapolis about utilizing the City's environmental restrictive covenant to help prevent exposure to contamination that makes its way to the Park. The City would need to agree to modify its environmental restrictive covenant, possibly to include restrictions on construction to prevent contact with groundwater and vapor. Chemtura's Plan does not address this modification process. Notably, IDEM has received two

6 Figure 1 is from Chemtura's Vapor Intrusion Evaluation Report dated November 25, 2014 (VFC#80014535).

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letters (VFC#69933307 and VFC#80010649) from the Mayor of Indianapolis, expressing concern about the contamination and the lack of progress on the Site.

Simply stated, Chemtura's Plan is not sufficiently specific to be approvable by IDEM, and even if it were more specific, IDEM is concerned about unintended (and unaddressed) consequences and has significant doubts that the Plan would have all the beneficial effects that Chemtura claims. Perhaps most importantly, the Plan does not contain any new or compelling information to justify Chemtura's continued refusal to sample adjacent homes to determine whether residents are being exposed to contaminated vapors.

d. Summary of IDEM's position as to Issue #1.

Through consultation with Chemtura and through its requests for additional information, IDEM has engaged in exhaustive efforts to develop a reasonable understanding of Site­related conditions and to facilitate potential agency approval of an RWP for the Site. IC 13-25-5 and the VRA both empower IDEM to request additional information during evaluation of a proposed RWP, and both require Chemtura to provide any requested information. IDEM's information requests were reasonably aimed at ensuring that Chemtura's RWP would satisfy the mandatory criteria set forth in the statute and the VRA, and those requests were consistent with IDEM guidance. IDEM's legitimate concerns about the viability of Chemtura's proposed RWP, and about human health in the neighborhood adjacent to the Site, persist even in the face of Chemtura's January 30, 2015 Plan. Thus, even if the VRA's dispute resolution process affords Chemtura the opportunity to challenge IDEM's requests for additional Site characterization data, those requests should be upheld and enforced in their entirety.

2. Chemtura's refusal to comply with IDEM's data requests means the Site is no longer enrolled in VRP.

If the Commissioner agrees with IDEM that the agency had authority to request additional data, and that Chemtura was obligated to comply, the next issue to address is the effect of Chemtura's wrongful refusal to supply the requested data. As IDEM will demonstrate, the governing statute, the VRA, and the circumstances surrounding this Site dictate that, because of Chemtura's refusal to comply with IDEM's data requests, the Site should no longer be enrolled in VRP.

a. Chemtura's VRA is terminated pursuant to VRA paragraph 21.

As discussed above, both IC 13-25-5-9(b) and VRA paragraph 21 provide that, when presented with a request for additional information, Chemtura can either comply with the request or withdraw its proposed RWP from consideration. Obviously, Chemtura has chosen not to comply with IDEM's data requests. Thus, by default, Chemtura has effectively withdrawn its proposed RWP.

VRA paragraph 21 goes on to provide that "[i]f the Applicant withdraws the proposed plan, this Agreement shall terminate." Because Chemtura has refused to comply with IDEM's requests for additional information about the Site, paragraph 21 dictates that Chemtura's VRA is terminated .

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b. Chemtura's VRA is void pursuant to VRA paragraph 19.

Paragraph 19 of Chemtura's VRA provides that "[t]he Applicant shall submit a Remediation Work Plan not later than one hundred eighty (180) days after the date this Agreement is executed." That VRA requirement is mandated by IC 13-25-5-8(a)(8). VRA paragraph 19 goes on: "If Applicant fails to submit the Remediation Work Plan within that period, the Agreement is voidable at the discretion of IDEM."

Chemtura's VRA was executed in November 2001. Thus, under VRA paragraph 19, Chemtura was required to submit a proposed RWP for IDEM's consideration by sometime in May 2002. However, as noted, Chemtura has effectively withdrawn its proposed RWP through its refusal to comply with IDEM's data requests. As a result, there is no proposed RWP currently before IDEM, meaning that Chemtura is out of compliance with paragraph 19's required time frame for submitting a proposed RWP. Chemtura's failure to comply with that time frame results in Chemtura's VRA being "voidable at the discretion of IDEM" pursuant to paragraph 19.

Although this Site has been enrolled in VRP for over thirteen years, Chemtura still has failed to submit an approvable RWP. And although IDEM has repeatedly explained the reasoning for its data requests, Chemtura remains recalcitrant about collecting and providing the requested information. Chemtura's refusal does not have a valid technical basis and appears to be rooted in a simple reluctance to contact the residents along Brookside Parkway North Drive and notify them of possible vapor intrusion into their homes. For well over a decade, Chemtura has taken advantage of the benefits of VRP participation, such as qualified immunity under IC 13-25-5-18(g). Yet Chemtura has not upheld its end of the bargain by submitting additional information as requested, let alone making progress in terms of actual remediation. Under these circumstances, IDEM would exercise its discretion to determine that Chemtura's VRA is void and that the Site is no longer enrolled in VRP.

c. Chemtura's VRA is terminated pursuant to VRA paragraph 60.

Paragraph 60 of Chemtura's VRA provides: "Pursuant to IC 13-25-5, IDEM may withdraw its approval of the Remediation Work Plan at any time during the implementation of the Remediation Work Plan if .. . IDEM determines that the Applicant has failed to substantially comply with the terms and conditions of this Agreement .. . . " This VRA provision reflects statutory language set forth at IC 13-25-5-19. VRA paragraph 60 continues: "Upon withdrawal of IDEM's approval, this Agreement shall be terminated .... "

Paragraph 60 admittedly contemplates a situation in which IDEM has already approved an RWP. However, implicit in IDEM's authority to withdraw its approval of an RWP for the reasons stated in paragraph 60 is the authority to reject a proposed RWP for the same reasons. Otherwise, the VRA might create the perverse incentive for IDEM to approve a proposed RWP in order to simply withdraw that approval for reasons enumerated in paragraph 60.

As noted, under paragraph 60, IDEM can withdraw approval of an RWP if it determines that the Applicant has failed to substantially comply with the terms and conditions of the

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VRA. Thus, if Chemtura has failed to substantially comply with the terms and conditions of its VRA, I OEM can reject Chemtura's proposed RWP.

Under IC 13-25-5-9, IDEM must review and evaluate Chemtura's proposed RWP and make a recommendation to the Commissioner concerning whether the Commissioner should approve, modify and approve, or reject the RWP. IDEM hereby recommends that the Commissioner reject Chemtura's proposed RWP based on Chemtura's failure to substantially comply with the terms and conditions of its VRA. As detailed above, at a bare minimum, Chemtura has failed to substantially comply with its obligations under paragraphs 15 and 19 of the VRA.7

IDEM also recommends that the Commissioner reject Chemtura's proposed RWP for the related but independent reason that, as submitted (that is, without the additional information requested by IDEM), Chemtura's proposed RWP is deficient on its face. Because Chemtura has refused to provide the additional data requested by IDEM, IDEM cannot be satisfied that Chemtura's RWP satisfies the necessary statutory criteria. For example, based on the limited information before it, IDEM cannot determine that Chemtura's proposed remediation objectives are acceptable, that Chemtura's proposed work will accomplish those objectives, or that Chemtura's plans provide adequate protection of health and safety. Further, because Chemtura has not demonstrated that its proposed RWP appropriately addresses all potential exposure pathways associated with the Site contamination, IDEM is unable to determine that the contamination does not pose any current or future risk to human health or the environment.

If the Commissioner agrees with IDEM's recommendation and rejects Chemtura's proposed RWP pursuant to IC 13-25-5-10, then Chemtura's VRA is terminated in accordance with VRA paragraph 60 ("Upon withdrawal of IDEM's approval, this Agreement shall be terminated .... "). In that event, the Site is no longer enrolled in VRP.

d. Summary of IDEM's position as to Issue #2.

If the Commissioner agrees that IDEM had authority to request additional data, and that Chemtura was obligated to comply, then the result of Chemtura's refusal to provide the requested data should be that the Site is no longer enrolled in VRP. Specifically, VRA paragraph 21 mandates that Chemtura's VRA is terminated . Additionally, and in the alternative, the Commissioner should deem Chemtura's VRA to be -void pursuant to paragraph 19. Additionally, and in the alternative, the Commissioner should reject Chemtura's RWP, which would result in Chemtura's VRA being terminated pursuant to paragraph 60.

7 Paragraph 15 provides: "Applicant shall provide all necessary information for a Remediation Work Plan for the Site." Paragraph 19 provides: "The Applicant shall submit a Remediation Work Plan not later than one hundred eighty (180) days after the date this Agreement is executed .. .. " Again, by refusing to comply with IDEM's data requests, Chemtura has effectively withdrawn its proposed RWP under IC 13-25-5-9(b) and VRA paragraph 21 . Thus, Chemtura is out of compliance with the time frame mandated by VRA paragraph 19 because Chemtura no longer has a proposed RWP under consideration by IDEM.

Reference 21 Page 13

3. This dispute cannot be resolved through the mediation process.

Paragraph 49 of Chemtura's VRA provides that, in the event the Commissioner's determination of a dispute is not acceptable to either IDEM or Chemtura, "either Party may submit the dispute to an impartial third party for mediation" (emphasis added). The VRA goes on to indicate in paragraph 50 that mediation is not required "[i]f either Party determines . .. that the dispute cannot be resolved through the mediation process." It is IDEM's position that this dispute cannot be resolved through mediation.

To repeat, this Site has been enrolled in VRP for over thirteen years. In all that time, Chemtura has fai led to submit an approvable RWP. Chemtura formally initiated this particular dispute over three months ago, and the dispute has actually been ongoing in a less formal sense for approximately one year.8 During that period, IDEM has repeatedly explained the reasoning for its data requests to Chemtura. Nonetheless, Chemtura continues to violate both the letter and the spirit of IC 13-25-5 and its VRA through its refusal to provide the requested information. In order to carry out its duty to review and evaluate Chemtura's RWP, IDEM requires every element of the additional information it has requested from Chemtura. Therefore, IDEM is not interested in a compromise whereby Chemtura provides only a subset of the requested data. Furthermore, as set forth above, IDEM rejects Chemtura's proposal to abandon and reroute the sewer instead of providing the additional data IDEM has requested. The only resolution to which IDEM would agree is for Chemtura to provide all of the additional data that IDEM has requested. Thus, mediation would not be useful in resolving this dispute.

Conclusion

For all the foregoing reasons, IDEM respectfully recommends that the Commissioner resolve this dispute by making the following determinations:

1. Because IDEM's requests for additional Site characterization data are authorized under IC 13-25-5 and the VRA, consistent with published IDEM guidance, and reasonable in light of the circumstances that exist at the Site, Chemtura was required to provide additional data as requested.

2. Due to Chemtura's refusa l to provide the additional data requested by IDEM, Chemtura's VRA is terminated pursuant to VRA paragraph 21. Additionally, and in the alternative, the VRA is void pursuant to VRA paragraph 19. Additionally, and in the alternative, the VRA is terminated pursuant to VRA paragraph 60. Thus, the Site is no longer enrolled in VRP.

3. This dispute cannot be resolved through the mediation process.

8 By letter dated March 20, 2014, IDEM notified Chemtura that "a vapor investigation of the houses along Brookside Drive west of Olney Street is required." IDEM further instructed Chemtura at that time that "[a] plan to determine the construction of the houses and their sewer connections and a proposal to sample homes along Brookside Drive needs to be submitted within 60 days from receipt of this letter." (VFC#69841453 at page 3, paragraph 5.)

Reference 21 Page 14

If the Commissioner agrees with the recommendation to reject Chemtura's proposed RWP (as part of a determination that Chemtura's VRA is terminated pursuant to paragraph 60), IDEM will initiate the steps that are prerequisites to the Commissioner's final rejection of a proposed RWP under IC 13-25-5-11.

IDEM will allow Chemtura fifteen (15) days to respond to this letter before proceeding to the Commissioner for a dispute resolution determination.

Enclosures

Sincerely,

v/L-~L/ William Holland, Senior Environmental Manager Voluntary Remediation Program Office of Land Qual ity

c~~hief Voluntary Remed iation Program Office of Land Quality

cc: Thomas Easterly, Commissioner of IDEM (via email) IDEM Office of Legal Counsel (via email) Cameron G. Starnes, City of Indianapolis (via email) Andrew Wallace, Environmental Resources Management (via email) Kirstin Etela, Chemtura (via email) Dean Calland, Babst Calland (via email)

Reference 21 Page 15

SITE MAP /TCE IN GROUNDWATER (ug/L)

1. TCE ~ TRICHLOROETHENE

2. TCE PLUME CONTOURS BASED ON MOST RECENT SAMPLING AT EACH LOCAmN.

J. ug/L • MICROGRAMS PER LITER.

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0 200 400

~----.J I SCALE (IN FEET)

FORMER CONNOR CORPORATION PROPERTY 3500 EAST 201H STREET

INDIANAPOUS, INDIANA

Environmental Resources

0149616

FIGURE 1

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I.IW-1 ~ MONITORING WELL LOCATION

SG- 1+ SOIL GAS PORT LOCATION

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STREET

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RIGHT OF WAY (APPROXIMATE)

DEFINITIONS

Compound Abbreviation Acetone Acetone Benzene Benzene

Ethylbenzene EB n~He:(ane n-Hexane

Meth lene Chloride MC Methyl Ethyl Ke tone: MEK Tetrachloroe thene PCE

Toluene Toluene Trichloroethene TCE

1,2,4--Trimethylbenzcne ]..2,4-TMB

Xylene ~yl_ene

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~ 3. ONLY COMPOUNDS DETECTED ABOVE LABOR A TORY REPORTING RMK

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J LIMITS AT EACH LOCATION ARE SHOWN. Date Drawn/Rev'd I ER ;Q 5/29/14- 10/30/141 I ~~~. ~~ -~~~--~~~-~ ~--~-~ --~ ~ - ~-~~-b-~~~-~~~ I

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SCALE (IN FEET)

Wl.E!'ill_ IA/SS-1 ~ INDOOR AIR/SUBSLAB/ AMBIENT AIR

SAMPLE LOCA llON (APPROXIMATE)

MW-11t- MONITORING WELL LOCATION

SG- 1+ SOIL GAS PORT LOCATION

_ _ ~ _ --0 ~O~B~~~~H~I~RM/SAN ITARY SEWER

-·--·- WATER LINE (APPROXIMATE)

STREET

--x-- FENCE

RIGHT OF WAY (APPROXIMATE)

DEFINJllONS ~ Acetone 39.9 0 ~ ds·DCE 25.6 ..r-1 3 x I

:::> CO 7.2 EB 2.7 (APPROXIMATE) 1 sewageWater-ug/L ~ 1.1- 0CA 14.8 c=J n-Hexane 112 fl I cis-OCE 20.7 17

Compound Abbreviation

Acetone Acetone

cis·DCE 290 MEK 5.7 J TCE 894 921 trans-OCE 25.1 I PCE 2.1 . I T I

Benzene Benzene C.ubon Disu lfide co

1,1-Dichloroethane 1,1- DCA

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1.1-0CE 8.7 , 5J MC 181 :JJ MW-36 PCE 6.4 5.1

, L f- EB

7

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11·6

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1,1· Dlchlorocthene 1,1-DCE c;ls-Dichlorocthcnc ds·OCE

t r<1ns-Oichlorocthene trans· DCF MEK 43 124-TMB ~ 3 l IA/SS-7 I PCE 487 ~ 'x~lene 86 I

Toluene 38 1 LU

1,1,1-TCA 96 3 I I I IA/SS- 11 ~ I . - --· I TCE 12,600 I I I I

1,2,4-TMB 10 3 SG- 2

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BROOKSIDE PARKWAY MW- 35 Mu-3: sG-1

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tr.ms·DCE 8.9 9.1 EB 9.6 10.4

7.1 6.9 ML .:S8. 4 46.1

MEK 7.2 4.9 PCE 103 136

Toluene 33.4 33.5

1, 1,1-TCA 20.9 18.9 TCE 2,320 2,330

Ethyl benzene EB n-Hexane n· Hexar.e

Methylene Chloride MC Methyl Ethvl Ket one MEK Te tra<:h lorot:tht:n~e: PCE

Toluene Toluene

1,1,1· Trichloroethane l,l,l·TCA Trlchloroethef1e TCE

1,2,4-Trimt:thvlbt:nzene 1,2,4-TMB Vinyl Chloride vc

Xylene Xylene

~ 2. ONLY COMPOUNDS DETECTED ABOVE LABORATORY REPORTING 2 LIMIT AT EACH LOCATION ARE SHOWN.

1.2,4-TMB 12..5 11.2

Xvlene 44.2 56.3

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~ 3. BDL = BELOW DETECTION LIMITS Drawn By o GML

% CADD Review ~ RMK

FORMER CONNOR CORPORA liON PROPERTY I CHK'O MR

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