[Federal Register Volume 63, Number 69 (Friday, April 10, 1998)]
[Notices]
[Pages 17858-17859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-9702]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-5995-6]


Proposed CERCLA Administrative Cost Recovery Settlement Pursuant 
to the Comprehensive Environmental Response, Compensation, and 
Liability Act; City of Toledo, Toledo, OH

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice; request for public comment.

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SUMMARY: In accordance with section 122(I) of the Comprehensive 
Environmental Response, Compensation, and Liability Act, as amended 
(CERCLA), 42 U.S.C. 9622(I), notice is hereby given of a proposed 
administrative settlement by consent (AOC), pursuant to CERCLA sections 
106(a), 107(a) and 122(h), 42 U.S.C. 9606(a), 9607 and 9622, concerning 
the XXKem Site in Toledo, Ohio. The City of Toledo is the Respondent to 
the proposed AOC.
    The settlement requires that the City of Toledo design, construct, 
and demonstrate the performance of a leachate extraction system at the 
XXKem facility in Toledo. Operation and maintenance of the system will 
be performed by other parties. The work to be performed is necessary to 
address the potential threat to human health and the environment posed 
by the release of hazardous substances at or from the central portion 
of the XXKem facility.
    The proposed settlement includes U.S. EPA's covenant not to sue or 
take administrative action against the City of Toledo pursuant to 
sections 106(a) and 107(a) of CERCLA, 42 U.S.C. 9606(a) and 9607(a), 
for the work to be performed, and for the recovery of U.S. EPA's past 
response costs, oversight costs, the Stickney-related work at the XXKem 
Site, and future work and future response costs at the central portion 
of the XXKem facility. Contribution protection under the order is co-
extensive with the covenant not to sue. The U.S. EPA's authority to 
enter into this administrative settlement agreement was conditioned 
upon the approval of the Attorney General of the United States (or her 
delegatee); this approval has been obtained.
    For thirty (30) days following the date of publication of this 
notice, the Agency will receive written comments relating to the 
settlement. The Agency will consider all comments received and may 
modify or withdraw its consent to the settlement if comments received 
disclose facts or considerations which indicate that the settlement is 
inappropriate, improper, or inadequate. The Agency's response to any 
comments received will be available for public inspection at the 7th 
Floor Records Center, (for address, see below).

DATES: Comments must be submitted on or before May 11, 1998.

ADDRESSES: The proposed Administrative Order by Consent (``AOC''), 
embodying the settlement agreement, and additional background 
information relating to the settlement are available for public 
inspection at the U.S. Environmental Protection Agency, Region 5, 
Superfund Division Records Center, 77 West Jackson Boulevard, 7th 
Floor, Chicago, Illinois 60604. A copy of the proposed AOC may be 
obtained from Sherry L. Estes (for address, see below). Comments should 
be sent to Ms. Estes and should reference the City of Toledo AOC for 
the XXKem facility, Toledo, Ohio.

FOR FURTHER INFORMATION CONTACT: Sherry L. Estes, Office of Regional 
Counsel, Mail Code C-14J, U.S. Environmental Protection Agency, 77 West 
Jackson Boulevard, Chicago, Illinois 60604, or (312) 886-7164.

SUPPLEMENTARY INFORMATION:

A. Background

    The central portion of the XXKem facility, comprised of 5.5 acres, 
is located at 3903-05 Stickney Avenue and is bordered on the north by 
the Stickney Avenue Landfill, in Lucas County, Toledo, Ohio. XXKem was 
formerly occupied by companies which performed waste solvent and waste 
oil fuel blending operations. The City of Toledo also disposed of 
wastewater treatment plant sludge within the facility's disposal 
lagoon. The disposal lagoon was closed pursuant to a 1981 Consent 
Decree between the State of Ohio and the then-site operator. However, 
the sludge at the bottom of the lagoon was left on site. In 1994, part 
of the sampling conducted during the Engineering Evaluation/Cost 
Analysis (EE/CA) for the Stickney Avenue Landfill analyzed non-aqueous 
phase liquid beneath the Stickney site and immediately adjacent to the 
central portion of the XXKem facility. These results revealed hazardous 
substances had migrated in groundwater from the closed lagoon to 
Stickney, with the ultimate discharge point being the Ottawa River. 
Under a cooperative agreement with U.S. EPA, the Ohio Environmental 
Protection Agency (OEPA) conducted an Expanded Site Inspection (ESI) 
and a Supplemental ESI of the XXKem Site in 1994 and 1995, 
respectively. As part of the Supplemental ESI, subsurface soil and

[[Page 17859]]

groundwater samples were collected. The analytical results revealed the 
presence of high concentrations of hazardous substances, including 
volatile organic compounds (VOCs), semivolatile organic compounds 
(SVOCs), polychlorinated biphenyls (PCBs), pesticides, and metals in 
soils and groundwater at the central portion of the XXKem facility.
    The Enforcement Action Memorandum for the Stickney Avenue Landfill 
(Stickney EAM), dated January 22, 1996, also included a response action 
decision for the central portion of the XXKem facility. The Stickney 
EAM calls for the construction of a multi-layer landfill cover system, 
compliant with the functional requirements of the Ohio Solid Waste 
regulations, over the closed lagoon area, and a landfill gas collection 
system, with passive venting to the atmosphere. Upon review of the soil 
and groundwater data from the Supplemental ESI and consultation with 
OEPA, both U.S. EPA and OEPA do not now believe that the extension of 
the Stickney cover system over the former waste disposal lagoon alone 
will adequately address the potential impact of contamination in the 
former lagoon at the XXKem facility on the Stickney Site and the Ottawa 
River.
    These data, and U.S. EPA's proposed response to the potential 
environmental threat resulting from the contamination found in the 
closed lagoon area, are set forth in a document entitled, ``A Summary 
of Response Alternatives for the XXKem Site,'' (XXKem Summary) which 
was released for public comment between February 7 and March 9, 1998. 
On April 8, 1998, U.S. EPA issued an Enforcement Action Memorandum for 
the XXKem Site (XXKem EAM). Responses to the substantive comments 
received during the public comment period on the XXKem Summary are set 
forth in the Responsiveness Summary of the XXKem EAM.

B. Settling Parties

    Proposed settling party: The City of Toledo, a municipal 
corporation.

C. Description of Settlement

    In exchange for the U.S. EPA's covenant not to sue, the Respondent 
City of Toledo agrees to design, construct and demonstrate the 
performance of a leachate extraction system at the central portion of 
XXKem facility. However, the City of Toledo's obligation to conduct the 
performance demonstration of the system terminates once the City has 
expended $375,000 total on the work required by the AOC. U.S. EPA 
estimates that all of the work required by the AOC can be completed for 
$375,000, and that the work requirements of the AOC are commensurate 
with the City's responsibility for the contamination at XXKem. It 
should be noted that the City is responsible for the installation of 
the leachate extraction system without regard to the $375,000 limit. 
U.S. EPA also considered Toledo's status as a Respondent to the 
February 27, 1998, Administrative Order by Consent for the Stickney/
Tyler Sites (Stickney/Tyler AOC) and its resulting financial 
contribution toward the work currently underway at these sites.
    The proposed settlement includes U.S. EPA's covenant not to sue or 
take administrative action against the City of Toledo pursuant to 
sections 106(a) and 107(a) of CERCLA, 42 U.S.C. 9606 and 9607, for the 
work to be performed, and for the recovery of U.S. EPA's past response 
costs, oversight costs, SWAXS work (Stickney Work at XXKem Site), and 
future work and future response costs at the central portion of the 
XXKem facility. Contribution protection under the order is co-extensive 
with the covenant not to sue, to the extent provided by sections 
113(f)(2) and 122(h)(4) of CERCLA, 42 U.S.C. 9613(f)(2) and 9622(h)(4).
    In the proposed AOC, the United States reserves its rights to take 
further proceedings against Toledo if the total costs of response at 
the XXKem Site exceed $4.5 million. The settlement also contains re-
opener provisions for unknown conditions and new information, which are 
analogous to the re-opener provisions contained in the model RD/RA 
consent decree.

D. Relationship of This Proposed AOC to Stickney/Tyler AOC

    In accordance with the Stickney EAM, the Stickney/Tyler AOC action 
requires the construction of a multi-layer cover system over the 
central portion of the XXKem facility. The City of Toledo is a 
respondent under the Stickney/Tyler AOC. However, the contribution 
protection section of the Stickney/Tyler AOC provides that claims for 
the XXKem site are reserved. Thus, for the work that will be conducted 
at XXKem, the Stickney/Tyler AOC respondents may pursue contribution 
claims against each other and against non-respondents, and, 
correspondingly, will be vulnerable to contribution claims from non-
respondents. With the successful completion of the work to be performed 
pursuant to the proposed Toledo AOC, the City, alone among the 
Stickney/Tyler respondents, will be protected from contribution claims 
for XXKem, unless and to the extent that total site costs at XXKem 
exceed the re-opener amount of $4.5 million.

    Dated: April 6, 1998.
William E. Muno,
Director, Superfund Division.
[FR Doc. 98-9702 Filed 4-9-98; 8:45 am]
BILLING CODE 6560-50-P