AltEn not a candidate for Superfund designation, EPA official tells … – Lincoln Journal Star

ASHLAND — An Environmental Protection Agency attorney who oversees enforcement in Nebraska said it’s unlikely AltEn, the former biorefinery near Mead that used pesticide-coated seeds to make ethanol, will be designated a Superfund site.

David Cozad, the director of EPA Region 7’s enforcement and compliance assurance division, told more than a dozen people at a community meeting in Ashland last Tuesday the agency believes the seed companies that sent AltEn their unused products are ultimately responsible for the cleanup.

“We have a fundamental principle that we operate under when we’re working on this kind of site and that’s the polluters should pay, not the taxpayers,” Cozad told Saunders County residents and members of a research team studying the former ethanol plant’s impact on the environment and human health.

Under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) passed by Congress in 1980, EPA has the authority to clean up contaminated sites or order the parties responsible for the contamination to do the cleanup or reimburse the government for costs incurred.

Cozad said in the case of AltEn, the law better known as Superfund would likely not apply because the pesticides found in high concentrations at the plant are not deemed hazardous, limiting EPA’s authority to deal with them.

As “one of the toughest sites” he’s worked on during his 30 years at the agency, Cozad said both EPA and the Nebraska Department of Environment and Energy believe responsibility rests with the agri-chemical companies that sent discarded seed to AltEn at no cost.

Six of those companies – Corteva Agriscience, Syngenta, Bayer, Beck’s Superior Hybrids, AgReliant and Winfield Solutions – agreed in June 2021 to shoulder the cost and burden of cleaning up the site through a voluntary cleanup program that allows third parties to assume responsibility at no cost to taxpayers.

The Nebraska Voluntary Cleanup Program was created in 2006 through a memorandum of agreement between the Department of Environment and Energy and EPA to “facilitate the expeditious cleanup of contaminated sites.”

According to the state environmental department, it also “offers protection from federal Superfund enforcement for those eligible sites that successfully complete cleanup” through the voluntary program.

After enrolling in the program, the so-called AltEn Facility Response Group hired Newfields, an environmental engineering and construction firm, to oversee the remediation efforts, and according to attorneys representing the companies, has spent more than $28 million since assuming responsibility for the site two years ago.

Cozad said the EPA believes the voluntary program is the right approach for the unique situation at AltEn and said the agency is “100% in support of NDEE being in the lead on this project” while it continues to offer technical and legal support.

“There are, under federal law, several ways in which (the seed companies) are responsible for cleaning up this contamination,” he said. “They’ve chosen to carry out that responsibility through the voluntary cleanup plan, which we support.

“And as long as they continue to work and make progress through that cleanup plan, I think we’re comfortable with that approach,” he added.

Mounting frustrations

Several individuals who took part in last Tuesday’s meeting with EPA Region 7 officials at the United Methodist Church in Ashland said they did not share Cozad’s confidence in the approach to the cleanup, however.

Joan Schrader, a retired veterinarian and research scientist, said many residents who live near AltEn felt the Department of Environment and Energy failed to act with urgency in bringing the ethanol plant to heel when it was obvious an environmental crisis was taking shape.

“NDEE has not fostered much goodwill in the way they have handled this from the onset,” Schrader said. “I don’t think there’s a lot of trust there.”

Both she and Stan Keiser, whose property 6 miles downstream from AltEn was the collection point for pesticide-contaminated wastewater running away from the facility in violation of state environmental regulations, also said the slow rate of progress has yet to stop pesticide pollution from moving offsite.

Researchers from the University of Nebraska and Creighton University found concentrations of pesticides in streams and ditches running away from the plant have subsided in the two years since AltEn shut down, but have also discovered neonicotinoids in blood and urine samples, in detectable levels of soil taken near the water table, and in dust and air samples gathered from area homes.

Schrader, in an email to the EPA that initiated the meeting, said until the contaminated material was properly disposed of, she felt like she was “living on a nuclear waste dump waiting for the radioactivity to fade.”

Last month, two years after state regulators ordered AltEn to stop pumping wastewater into its damaged lagoon system, the Department of Environment and Energy approved a plan to pump treated wastewater with reduced concentrations of pesticides to area farmland.

The seed companies are also expected to submit a plan for disposing of nearly 100,000 tons of pesticide-laden wet cake, sludge and other solids now entombed under cement and clay – the second of three expected phases of the remediation effort – later this spring.

Meanwhile, state and federal regulators are anticipating a third plan looking at addressing groundwater and soil affected by AltEn’s ethanol production in the surrounding area, but the timeline for when that plan could be submitted and approved is unclear.

“We’re (at) the third stage of the process and they’re not even through the first stage yet,” said Keiser, whose private well that supplies his family’s farm has shown the presence of neonicotinoids, but far below levels deemed concerning for human health, “so I don’t know when our stage is going to get cleaned up.”

Cozad said the work done to control storm water runoff, minimize dust and airborne emissions and other activities has stabilized the facility, and said the Facility Response Group has been successful in reducing the amount of pesticides present in the wastewater.

But he also acknowledged there is often tension on environmental cleanup projects “between doing it fast and getting it right,” and said the methodical approach is often best.

“You don’t want to go down a route on a cleanup approach that isn’t ready because you rushed it,” he said, adding he has full faith in the state Environmental Department to continue managing the project, and believes the solid waste will be addressed “at the same pace and have the same outcome” as the wastewater.

Insiders and outsiders

In December, Cozad and others from EPA met with Jim Macy, director of the Department of Environment and Energy, state Sen. Bruce Bostelman of Brainard, who represents Saunders County, and about 10 residents of Mead to address their concerns.

At that meeting, according to multiple people who attended, members from the community told the EPA they did not want AltEn to be named a Superfund site.

That was news to many who live outside of Mead’s village limits, particularly those living downwind or downstream of the ethanol plant, or close to where wet cake or wastewater has been land-applied, who are not part of the monthly meetings.

In a statement, NDEE said it has hosted two public information sessions and three public hearings as it has considered renewing permits or approving remedial action plans, and keeps the public updated via its website and public records portal.

The department said it has chosen to not invite more residents to its monthly meetings for a reason:

“The Mead community group is the most directly affected by the AltEn site. NDEE wants to be sure the community members are informed when they see activity taking place at the facility.”

But residents and members of the Perivallon Group, a coalition of researchers, advocates, and community members that has coordinated a response to the environmental crisis, said the problem created by AltEn extends well beyond Mead.

“It is questionable for any state or federal agency to claim that AltEn is primarily a ‘Village of Mead problem’ and to justify meeting with a select group as the only affected people,” said John Schalles, a professor of biology at Creighton University who is part of the research team studying the plant’s impacts.

“This unique environmental catastrophe is a Saunders County and Nebraska problem,” he added.

Drainage channels that collected and moved wastewater from AltEn eventually join with the Platte River near Ashland and ultimately the Missouri River, Schalles explained, while high concentrations of neonicotinoid pesticides have been located in areas where wet cake was dumped.

Former state Sen. Al Davis, who is now a registered lobbyist for the Nebraska chapter of the Sierra Club, said the closed door meetings are “a breathtaking breach of trust” by the state Environmental Department.

“There is no justification for NDEE to hold private and secret informational meetings with a small, selected group while excluding other victims of this disaster as well as the media,” Davis said. “All citizens across Nebraska deserve timely and accurate information about this disaster to make the best decisions about how to protect themselves and their families from harm.”

Jody Weible, whose efforts to draw attention to AltEn started in 2018, is part of the small group of Mead residents who meet monthly with officials from the Department of Environment and Energy and representatives from the seed companies.

Now that they have a direct line to the ear of the entities responsible for cleaning up the site, Weible said the town doesn’t want to lose that access.

“I think that we have a working relationship with NDEE where they trust us, Newfields trusts us, and nobody wants to upset that apple cart,” Weible said.

Bostelman, who has taken part in the meetings, said he believes the current process is working.

“The community leaders are supportive of it, cleanup is happening and has been happening, so we need to continue down that path,” he said. “I think we’ve come a long way, there’s more to be done obviously, but we’re going down that path.”

Carrot vs. stick

The question of whether or not AltEn would qualify to be designated as a Superfund site has lingered since the environmental concerns at the plant first gained national attention two years ago.

The residents of Mead are no stranger to the federal government’s environmental cleanup program: the EPA named the former Nebraska Ordnance Plant a national priority in the mid-1990s after several chemical solvents and explosive residues were discovered to have leached in the groundwater.

Since that time, the U.S. Army Corps of Engineers has managed an extensive network of monitoring pumps and filters to clean an estimated 100 billion gallons of groundwater at a cost of more than $140 million to date.

To Schrader, living near an existing Superfund cleanup for two decades has made her appreciate “the expertise, implementation, and monitoring that the EPA can apply to point source pollution,” and is something she said should be replicated for AltEn.

“We are in desperate need of federal help in this situation,” she said.

But Cozad said the type of pollution in AltEn’s case – agricultural chemicals – is not considered a hazardous substance under CERCLA, which limits EPA’s legal authority to use the program.

EPA has another tool, the Resource Conservation and Recovery Act, or RCRA, governing the disposal of solid waste that Cozad said could be used if state or federal regulators feel AltEn or the seed companies are slow-walking progress or beginning to withdraw from the voluntary program early.

Under one provision of RCRA – section 7003 – the EPA can order anyone who has contributed to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste that presents “an imminent and substantial endangerment to health or the environment” to cleanup that waste.

“We think the seed companies, by providing the seed at no charge to the ethanol producer, contributed through the disposal of solid waste to creating an endangerment that they are responsible for,” Cozad said. “If push came to shove, I think we would be prepared to use that authority – not Superfund.”

In late November, EPA used the RCRA statute to order ESE Alcohol, a small biofuel plant that began operating in western Kansas in 1998, as well as Pioneer Hi-Bred International, a subsidiary of Corteva, to clean up several thousand tons of pesticide-contaminated wet cake.

Pioneer supplied ESE Alcohol with 1.3 million bushels of unused treated seed between 2018 and 2021, according to the EPA, while the ethanol plant had land-applied nearly 20,000 tons of wet cake in 2020 and 2021 combined.

A spokesman for Corteva said the company and the ethanol plant are voluntarily working with the EPA to “evaluate and determine if there is a need for remediation on the land on which wastewater and solids were applied by ESE Alcohol.”

Cozad said while the situations are vastly different – the state of Kansas turned over enforcement to EPA – he believes the same authority would apply at AltEn. He said the RCRA law incentivizes the seed companies to stay in the voluntary cleanup program.

“I believe they are committed to this for the long haul,” he said. “I think that wasn’t clear at the beginning, but it’s clear now.”