DEPARTMENT OF THE ARMY

U.S. ARMY ENGINEER DISTRICT, LOUISVILLE

CORPS OF ENGINEERS
P. 0. BOX59
LOUISVILLE KY 40201-0059

March 27, 2015

Real Estate Division

Mr. Jerry Acy, Executive Director

River Ridge Development Authority
6200 East Highway 62, Suite 200
Jeffersonville, Indiana 47130

SUBJECT: River Ridge Development Authority (the "RRDA") Parcel Cl

Dear Mr. Acy:
Our office is in receipt of your letter dated March 4, 2015 regarding the aforementioned
subject. Your letter raises three matters which I will address in the order presented.
First, the RRDA, with the acceptance of ownership of Parcels H4 and H5 at the former
Indiana Army Ammunition Plant, partially completed the expectations set out in our letter dated
January 13, 2014 that deeds for Parcels H4, H5, and Cl are signed and returned by February 28,
2014. As your letter notes, the acceptance of Parcel Cl is still outstanding.
Second, the Army disagrees with RRDA's position that Parcel Cl is not suitable for
acceptance due to the conditions of the landfill. In 2002 the Army received a determination from
the Indiana Department of Environmental Management (IDEM) that the landfill was closed in
accordance with the state-approved closure plan. As you know, post-closure requirements,
including landfill cap maintenance, are performed by the RRDA, at Army expense, pursuant to
terms of RRDA's lease agreement with the Army. Consistent with the state's post-closure
responsibilities, pursuant to a recent inspection report by the IDEM, the RRDA prepared a
workplan to perform landfill cap maintenance. After receiving comments from IDEM, the recent
updated 2015 workplan describes normal maintenance activities such as minor grading,
vegetation removal, and the placement of small amounts of soil on several small areas.
Consistent with IDEM comments, the workplan prepared by RRDA concluded that no mitigation
actions were required on the clay landfill cap. Upon IDEM approval, the RRDA at Army
expense will perform those maintenance actions in accordance with the approved workplan.
There is nothing on the site or in the RRDA-prepared workplan indicating that the landfill cap is
not functioning as designed or is not protective of human health and the environment.
Furthermore, landfill cap maintenance does not affect the suitability of the property for transfer.
Third, the Army is proceeding to complete actions necessary to prepare and provide the
deed for Parcels G5 and G6. We currently expect the deed for those parcels to be ready by
approximately September 2015.

We have stated on several occasions that the RRDA's acceptance of Parcel Cl, the deed
for which was provided to RRDA approximately two years ago, is a priority for the Army. To
facilitate the conveyance, the Army agreed in its letter of January 13, 2014 to be financially
responsible for the long term monitoring of Parcel C 1. The Parcel C 1 deed is complete and
ready for execution by the RRDA and the Army in accordance with the Department of the Army
Lease No. DACA27-1-02-477 and the Memorandum of Agreement dated October 30, 2000.
We realize the RRDA is anxious to move forward with additional land conveyances. The
Army is as well. We hope to obtain your acceptance and execution of the Parcel C 1 deed in a
timely manner that does not impede the ability to convey Parcel G5 and G6 when that deed is
ready.

If you have any questions, please call Ms. Karla Wright at 502-315-6990 or email
karla.b.wright@usace.army.mil.

Veronica A. Hiriams
Chief, Real Estate Division

RIVERRIDGE
DEVELOPMENT AUTHORITY

March 4, 2015

Veronica A. Hiriams
Chief, Real Estate Division
U.S. Army Engineer District, Louisville
Corps of Engineers
P.O. Box 59
Louisville, KY 40201-0059
RE: River Ridge Development Authority (the "RRDA") Parcel Cl
Dear Ms. Hiriams:
The purpose ofthis correspondence is threefold:
Your letter of January 13, 2014 stated that prior to any additional land conveyances, the RRDA would be required
to accept ownership of parcels H4, HS and CI. Those parcels consist of a total of984 acres. Jn February of2014,
the RRDA accepted ownership of parcels H4 and HS and paid to USACE a total of $1,220,044 for the nonlegislative portions of 1-14 and HS. That accounted for 939 acres or 95.43% of the total. In our opinion, your
requirement stated above has been substantially complied with.
Secondly, as a result of the well-known issues associated with Parcel Cl, and more importantly the unknown
conditions and/or contents of the landfill, the RRDA's position continues to be that Parce1 Cl is not suitable for
acceptance by the RRDA. To determine the viability of our position we requested an independent evaluation by
legal counsel with the firm of Wyatt, Tarrant & Combs, LLP (WTC). As a result, we received the attached letter
of recommendation from H. Carl Homeman, Esquire, with WTC, on February 10, 201S.
Thirdly, given the above, we again respectfully request the Army expedite the transfer of Parcels GS and 06 to
support the ongoing development obligations of the RRDA as outlined in my letter dated February 2, 201 S.
In additional to tbe letters referenced above, I am also including a timeline s wnmary of the activities related to Parcel
Cl. RRDA 's staff and Board of Director's appreciate your consideration of this request.
Sincerely>

Attacllments: (4)

6200 E. Highway 62,

Building 2501, Suite 600
Jeffersonville, IN 47130

J. Mark Robinson, President

NoITTJan E. "Ned" Pfau, Vice President
David W. Evanczyk, Secretaryffreasurer
David Flowe, Member
Kim Matthews, Member

ff] 812-28~8979
!Fl 812-285-8983
www.riverridgecc.com
RIVER RIDGE DEVELOPMENT AUTHOR ITY

DEPARTMENT OF THE ARMY

U.S. ARMY ENGINEER DISTRICT, LOUISVILLE
CORPS OF ENGINEERS
P. O. BOX59
LOUISVILLE KY 40201 -0059

January 13, 2014

Real Estate Division

Mr. Jerry Acy. Executive Dircctol'

River Ridge Development Authority

6200 East Highway 62, Suite 200

Jeffersonville>Indiana 47130

REFERENCE: River Ridge Development Authority (RRDA) Letter dated December 9, 2013
Deed Status - Parcels H4, HS and Cl
Dear Mr. Acy:
This is a follow-up to my letter dated December 17, 2013, same subject. My office has
received confirmation from Mr. James Briggs, ASCIM, that the long term monitoring for Parcel
C I has been resolved. The decision has been made that long term monitoring of Parcel Cl, i11
accorda1lce witb the requirements offndiana Department ofEnvirorunental Management, will be
funded by the Department of the Army (DA).
At this time~ the deeds for Parcels H4, HS and C l are ready for signature by the RRDA.

lt is om expectation that all deeds wiH be signed and retumed to this office by February 28,
2014, as all requirements for conveyance have been meet by the DA. We will await the signed
deeds for H4, HS and C 1 before proceeding with any additional land conveyances, in accordru1ce

with the Memorandum of Agreement, dated October 30, 2000.

If you have any questions, please call Ms. Karla Wright at 502-3 15-6990 or email
karta.b.wright@usace.anny.mil.

VeronicaA. Hiriarns
Chief, Rea] Estate Division

WYATT.

TA~RANT

H. Carl Horne man

500 West Jefferson Street, SuJte 2800

Louisville, Kentucky 40202-2898
& COMBS, HP

502.562.7192

chorneman@wyatttlrm.com

502.589.5235
Fox: 502.589.0309

Februrary 10, 2015

David Lewis, Esq.
General Counsel
River Ridge Development Authority
6200 E. Highway 62, Suite 600
Jeffersonville, IN 47130
RE:

Parcel Cl

Dear David:
For reasons I explain below, I recommend that River Ridge Development Authority
(''River Ridge") not agree to accept from the United States Army title to Parcel Cl of the Indiana
Army Ammunition Plant unless and until improvements to the cap over landfills existing on that
property have been implemented to the satisfaction of the Indiana Department for
Environmental Management ("IDEM") and the Army has obtained from the Regional
Administrator of Region V of the United States Environmental Protection Agency ("EPA") a
finding that remedial actions to address hazardous substances present within those landfills are
operating properly and successfully.
As you know, Parcel Cl contains closed hazardous waste landfill units that are subject to
an IDEM-issued permit (the "Permit'). The Permit imposes corrective action and post-closure
"care and use" obligations on the landfill units as mandated by standards adopted pursuant to
the Resource Conservation and Recovery Act, 42 u.s.c. 6901 et. seq. ('1RCRA"}1 and Indiana
Code 13-22-2-6, 13-22-2-7 and 13-22-3. The standards are found in federal regulations codified
at 40 CFR Part 264 and in Indiana regulations codified at 329 IAC 3.1 Rule 9 (which adopts the
federal standards by reference) . Those standards restrict activities that can occur and require
post-closure maintenance and monitoring activities for a period of 30 years after hazardous
waste landfills - such as the one at Parcel Cl - are closed. 40 CFR 264.117(a). IDEM may
extend this monitoring and maintenance period and recently it expressed Its intent to require
certain monitoring in perpetuity unless hazardous waste are removed from the landfill. See 40
CFR 264.118(d) and IDEM Response to Comments, RCRA Draft Permit Renewal, IN9210020443,
(February 14, 2014) p. 2. Parcel Cl also contains sanitary landfill units which must be
monitored and maintained in perpetuity in accordance with the permit under which they were
filled. 329 IAC Article 10.
Monitoring and maintenance includes, among other things, inspection of the cap placed
over buried waste during closure. A cap is placed over waste burled in a landfill to prevent
rainfall and surface water from infiltrating into disposal cells where it can mix with waste and
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David lewis, Esq.

February 10, 2015
Page 2
carry hazardous substances to clean soil or groundwater. We understand that recent
inspections of the cap over Parcel Cl landfills reveal sunken "depressions" in the cap where the
cap has settled or subsided. Further inspections immediately following heavy rainfall events
found those sunken areas do not retain water, indicating that rain is passing through the cap
and it no longer prevents water from migrating Into the closed landfill units. We understand
that River Ridge caused cap improvement plans to be developed and submitted to IDEM for
approval, and those plans are still under review by IDEM.
Section 120(h)(3)(A) of the Comprehensive Environmental, Conservation and liability
Act (''CERCLA"), 42 U.S.C. 9620(h)(3)(A) imposes obligations on the United States before
transferring contaminated property to a non ~federal entity. It requires the United States to
include in a deed transferring property "on which any hazardous substance was ... known to
have been disposed of...,'' among other things, a covenant that "all remedial actions necessary
to protect human health and the environment with respect to any such substance ... has been
taken before the date of ... transfer." 42 U.S.C. 9620(h)(3)(A)(ii)(I). We believe the Army lacks
a sufficient basis to reach such a conclusion. The act of simply closing the Parcel Cl landfill
units does not in and of itself protect human health and the environment from hazardous
substances present in those units. Accepting Parcel Cl before the Army has made a proper
determination needed to support this covenant could undermine protections Congress
intended for River Ridge to receive as a transferee of U.S.-owned property.
Let me further explain why I believe the Army does not have an adequate basis to
conclude simply dosing a hazardous waste landfill or a sanitary landfill will protect human
health and the environment from its contents. Landfilling is a waste management practice used
for the permanent disposition of waste. While decomposition of some portion of the waste
burled in a landfill might be expected, inert and undecomposed materials remain buried in the
landfill indefinitely. 11Because such permanent land disposal brings the potential for releases
from the unit over a long-term period, .... owners and operators [of land disposal facilities] must
conduct post-closure monitoring and maintenance activities.'' EPA RCRA Orientation Manual,
Chapter
Ill,
p.
111-75
available
at:
http:Uwww.epa.gov/osw/inforesources/pubs/orientat/rom35.pdf See 40 CFR Part 264,
Subpart G. Furthermore, this risk of future releases from land disposal prompted Congress in
its 1984 amendments to RCRA to prohibit land disposal of hazardous waste unless the EPA
"determines the prohibition on one or more methods of land disposal is not required to protect
public health and the environment," taking Into account, among other things, "the long~term
uncertainties associated with land disposal." 42 U.S.C. 6942(d) and (g). This prohibition,
however, was implemented through a series of regulations codified at 40 CFR Part 268 after the
Parcel Cl landfill units were completed.

T
WYATT, TARRANT & COMBS, UP

David Lewis, Esq.

February 10, 2015
Page 3
In the face of these requirements; we do not see a basis upon which the Army could
rationally conclude simply meeting closure standards, especially at a landfill which contains
waste placed there before EPA implemented landfill prohibitions codified at 40 CFR Part 268,
will "protect human health and the environment from the hazardous substances ... disposed of'
there. 42 U.S.C. 9620(h)(3)(A)(ii)(l). On the contrary, these requirements show that it is only
after a lengthy post-closure period of monitoring and maintenance, if ever, that closure of a
landfill can be found to have achieved its cleanup objectives, (i.e., contatnment or control of
hazardous substances in the buried wastes). If demonstrating achievement of closure
standards were enough, post-closure maintenance and monitoring would be unnecessary.
Furthermore, currently documented deficiencies in the cap resulting from settlement or
subsidence should preclude the Army from concluding Parcel Cl continues to meet even
closure standards.

Congress has recognized that there are limited times when the federal government may
be allowed to transfer contaminated property to a non-federal entity before all cleanup
objectives are achieved. Recognizing that some remedial actions take tnany years before
cleanup objectives can be achieved, Congress amended Section 120(h)(3) of CERCLA to allow
such early transfers. To qualify for early transfer construction and installation of an approved
remedial design must be completed and demonstrated to the Administrator of EPA to be
operating properly and successfully. See 42 U.S.C. 9620(h)(3)(B). The Administrator has
delegated her authority to make "operating properly and successfully determinations" to the
Regional Administrators of EPA. For property located in Indiana that is Region V Regional
Administrator, Susan Hedman.
We believe landfill closure is a remedial action that cannot meet cleanup objectives until
post-closure care and maintenance has occurred at least as long as required to comply with
applicable regulatory standards. However, we also believe it is a remedy th~t could possibly
qualify for early transfer if the cap and other structures installed at closure meet applicable
closure standards, and the appropriate EPA Regional Administrator finds those structures to be
operating properly and successfully.
I do not know if the Region V Regional Administrator would ever find closure of Parcel
Cl to be operating properly and successfully in li'ght of its contents, proximity to karst geology
and lack of Impervious liners or leachate collection systems, but I also see no reason for the
Army to not request such a finding. I believe any evaluation of the remedial action would also
include an assessment of Institutional controls, if any, the Army will use to prevent capdamaging activities beyond any post closure period. Nonetheless, I am fairly certain the
Regional Administrator could not legitimately determine closure of Parcel Cl is operating
properly and successfully before the existing cap deficiencies have been corrected. The Army

WYAlT. TARRANT & COMBS. LLP

David Lewis, Esq.

February 10, 2015
Page 4
should correct the cap deficiencies to IDEM's satisfaction and after the corrections have been
made the Army should request an operating properly and successfully determination from
Region V. Parcel Cl should not be transferred to River Ridge until both the cap integrity has
been restored and the EPA determination has been made.
For the all of the forgoing reasons, we recommend that River Ridge decline to take title
to Parcel Cl until EPA Region V has Issued an operating properly and successfully
determination. And, believing that completing repairs to the Parcel Cl landfill cap sufficient to
satisfy IDEM is a prerequisite to Region V making a proper operating properly and successfully
determination, we believe completing landfill cap improvements acceptable to IDEM must also
occur before any transfer takes place.
Yours truly,

v~r::_BS,
H. Carl Horneman

HCH/kaj
61293491.4

LP

RIVERRIDGE
DEVELOPMENT AUTHORITY

February 2, 2015
Veronica A. Hiriams
Chief, Real Estate Division
Department oftbe Anny
U.S. Army Engineer District, J,ouisviUe
Corps ofEngineers
P.0.Box59
Louisville, KY 40201 -0059
RE: River Ridge Development Authority (the "RRDA") request for property transfer
Dear Ms. Hiriams:
This letter is wr,itten as a follow-up to the attached letter dated March 6, 2013 from the Under Secretary of Defense to
the Committee on Armed Services regarding the disposition of closures of active-duty military installation since 1988
in the United States that were not subject to the property disposal provisions contained in the BRAC Act of 1990, and
for which property disposals have not been completed as of the date of the enactment ofthis Act.
Our records show the Anny parcels yet to be transferred from the Army to the RRDA, as ofthe date of this letter, are
parcels Cl, GS, G6, H6, H7 and J3 containing approximately l, 134 acres with a scheduled transfer date of FY15 as
per the above referenced letter.
We respectfully request the Anny expedite the transfer of Army parcels GS and G6 to facilitate the RRDA in
responding to its 2015 project activity. Currently we have five (5) active projects on Parcels 05 and G6 involving
over 300 acres and hundreds of potential jobs. Additionally, our most recent project is the one located on H7
referenced in Jennifer Vittitows email to Karla Wright dated January 30, 2015.
Of simiJar importance is the interstate extension of l-265 that is currently under construction, which wHl provide

direct access to the RRCC via a new interchange. The completion of the I-265 loop and the East End Bridge will
have a major impact on the RRDA's ability to access and market major portions of the RRCC. Specifically, four of
the five projects mentioned above are depende11t upon our ability to construct the planned transportation corridor from
SR62 to the new interchange, which route is currently encumbered by Anny parcels GS and G6.
Your assistance in expediting the GS and G6 parcel transfers is of significant importance to the RRDA as it continues
to move toward its ultimate purpose of developing an "industrial park to replace the economic activity lost at the
inactivated plant:'
Please feel free to contact me at 502/802-1011 with any questions.

Sincerely.

6200 E. Highway 62,

Building 2501, Suite 600
Jeffersonville, IN 47130
[TJ 812-285-8979
[F] 812-285-8983
www.riverridgecc.com

J. Mark Robinson, President

Norman E. "Ned" Pfau, Vice President
David W, Evanczyk, SecretaryfTreasurer
David Flowe, Member
Kim Matthews, Member
RIVER RIDGE DEVELOPMENT AUTHORITY