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UN. /~ .... STATES ENVIRONMENTAL PROTECTION AGENCY
A ~ REGION 5

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CHICAGO. IL 60604-3590

REPLY TO THE ATIEllfTiON OF

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VIA ELECTRONIC TRANSMISSION

AND EXPRESS MAIL

anuary 14, 2008

Susan P. Bodine
Assistant Administrator
Office 0 f Solid Waste and Emergency Response (5101 T)
U. S. Environmental Protection Agency
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460

Re: Request for Withdrawal of October 31, 2007 CERCLA HRS Package for the
Tittabawassee River Site Adjacent to the Dow Chemical Company Facility,
Midland, Michigan; EPA ID No. MID980994354

Dear Administrator Bodine:

This letter is to request the withdrawal of the Hazardous Site Evaluation (HRS) package
ubmitted by Region 5 (the Region) to the Office of Solid Waste and Emergency
Response (OSWER), United States Environmental Protection Agency (EPA or the
Agency) on October 31, 2007 (Dow HRS package). The Dow HRS package was
ubmitted to OSWER by the Region pursuant to Section 105(a)(8)(A) of the
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or
Superfund), as amended, 42 V.S.c. § 9605(a)(8)(A); 40 C.F.R. Part 300, Appendix A;
nd OSWER's Hazard Ranking System Guidance Manual. Interim Final (November
1992), and seeks the inclusion of an off-site area adjacent to the Dow Chemical Company
Dow) facility in Midland, Michigan, EPA ill No. MID980994354 (the Tittabawssee
River site), on the National Priorities List (NPL), 40 C.F.R. Part 300, Appendix B. The
Region submits this request for withdrawal to OWSER in order to defer the inclusion of
he Tittabawassee River site on the NPL while the Agency uses other authorities to
ddress the off-site release of hazardous constituents in this matter, including but not
necessarily limited to, the corrective action authority found at Subtitle C of the Resource
Conservation and Recovery Act (RCRA), as amended, 42 U.S.C. § 6901, et seq.
M you are aware, EPA generally defers the listing of sites that otherwise meet the NPL
criteria when other authorities exist that are capable of accomplishing the needed
remedial action in order to conserve the Agency's Superfund resources and avoid
duplication of effort. In addition, EPA's 1986 RCRA deferral policy, as amended, (51
FR 21057; June 10, 986; 54 FR 41000; October 4, 1989), recommends that the Agency
not undertake CERCLA response actions at certain sites that can or will be adequately
addressed by using RCRA corrective action authority.

In accordance with EPA's deferral policy, the Region submitted the Dow HRS package
o OSWER, because, at the time of submission, the Region did not believe that the State
of Michigan's authorized corrective action authorities, as being overseen by the Region,
were adequate to comprehensively address the off-site hazardous constituent
contamination at the Tittabawassee River Site. l As a result, the Region concluded that a
CERCLA deferral to RCRA in this matter was not prudent and submitted the Dow HRS
package to OSWER. As you are also aware, the Region's concerns with a CERCLA
deferral to RCRA in this matter were discussed at a meeting between OSWER and the
Region in Chicago on September 11,2007.

Nevertheless, since our meeting in Chicago and the Region's submission of the Dow
HRS package to OSWER, many of the deferral concerns raised by the Region to OWSER
o support the submittal of the Dow HRS package have been properly addressed by the
State of Michigan. In addition, the State has, in the last few months, made considerable
progress, pursuant to its authorized state RCRA corrective action authorities and per
significant oversight by the Region, in requiring Dow to conduct additional
characterization and remediation at the Tittabawassee River site. Also, the State has
committed to a more proactive use of its interim response action authorities, provided by
Dow's June 12, 2003 state-issued RCRA license, to require prompt response actions by
Dow to address the numerous recently identified off-site hazardous constituent
contamination locations containing high levels of dioxins and other toxic chemicals
which may pose an imminent and substantial endangerment to human health or the
environment. In addition, the Region stands ready to use its CERCLA authorities, as
necessary, to assist the State in this effort. Accordingly, I have concluded that NPL
listing of the Tittabawassee River site at this time is not warranted.

Consequently, Region 5 hereby requests that the Dow HRS package to OSWER be
withdrawn. Please note that despite this request for withdrawal, the Region reserves its
right to re-submit a request for NPL listing for this site, or any related site, should the
State of Michigan not continue to adequately address Dow's off-site hazardous
constituent contamination of the Saginaw Bay watershed or should the Region discover
new information of a release or potential release of any hazardous constituent at or from
Dow's facility which poses a significant threat to human health or the environment. In
addition and as you know, the fact that the Region is now requesting the withdrawal of
he Dow HRS package does not preclude the Region from using its CERCLA authorities
o compel action by Dow, or other parties, at the Tittabawasee River site or any other site

On October 30, 1986, EPA authorized Michigan to operate its state hazardous waste program pursuant to
Parts III and 20 I ofNREP A. See 40 C.F.R. Part 272, Sub-Part X and 51 FR 36804 (Oct. 16, 1986).
 nd the Region retains its authority to take removal actions at any site, whether listed or
ot, that meets the criteria of the National Contingency Plan, 40 C.F.R. Part 300.

incerely,

- C-..
..... ----------
Mary A. Gade
egional Administrator

c: Robert Kaplan, Regional Counsel

Bharat Mathur, Deputy Regional Administrator