[Federal Register Volume 64, Number 152 (Monday, August 9, 1999)]
[Proposed Rules]
[Pages 43129-43132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-20199]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[FRL-6413-6]


National Oil and Hazardous Substances Pollution Contingency Plan; 
National Priorities List

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of intent to delete the Smuggler Mountain Superfund site 
from the National Priorities List; request for comments.

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SUMMARY: The Environmental Protection Agency, Region 8 announces its 
intent to delete the Smuggler Mountain Superfund Site (Site) from the 
National Priorities List (NPL) and requests public comment on this 
proposed action. The NPL constitutes appendix B of 40 CFR part 300 
which is the National Oil and Hazardous Substances Pollution 
Contingency Plan (NCP), which EPA promulgated pursuant to section 105 
of the Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA) of 1980, as amended. EPA and the State of 
Colorado (State) have determined that the Site as remediated poses no 
significant threat to public health or the environment and, therefore, 
further remedial measures pursuant to CERCLA are not appropriate.

DATES: Comments concerning this Site may be submitted on or before 
September 8, 1999.

ADDRESSES: Comments may be mailed to: Armando Saenz, Remedial Project 
Manager, U.S. Environmental Protection Agency, Region 8, 999 18th 
Street, Suite 500, Mail Stop EPR-SR, Denver, Colorado 80202-2466.

Comprehensive information on this Site is available through the public 
docket which is available for viewing at the Smuggler Mountain 
Superfund Site information repositories at the following locations:
Superfund Records Center, U.S. Environmental Protection Agency, Region 
8, 999 18th Street, 5th Floor, Denver, Colorado 80202-2466, (303) 312-
6473. Hours of operation are 8:00 AM to 4:30 PM.
Aspen/Pitkin Environmental Health Department, 130 S. Galena Street, 
Aspen, Colorado 81611, (970) 920-5070. Hours of operation are 8 AM to 5 
PM.

FOR FURTHER INFORMATION CONTACT: Armando Saenz, Remedial Project 
Manager, U.S. Environmental Protection Agency, Region 8, 999 18th 
Street, Suite 500, Mail Stop EPR-SR, Denver, Colorado 80202-2466, (303) 
312-6559.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction
II. NPL Deletion Criteria
III. Deletion Procedures
IV. Basis for Intended Site Deletion
V. Summary

I. Introduction

    The Environmental Protection Agency (EPA), Region 8 announces its 
intent to delete the Smuggler Mountain Superfund Site (Site) located in 
Aspen, Colorado from the National Priorities List (NPL), appendix B of 
the National Oil and Hazardous Substances Pollution Contingency Plan 
(NCP), 40 CFR part 300, and requests comments on this deletion. EPA 
identifies sites that appear to present a significant risk to public 
health, welfare, or the environment and maintains the NPL as a list of 
these sites. As described in Sec. 300.425(e)(3) of the NCP, sites 
deleted from the NPL remain eligible for remedial actions in the 
unlikely event that conditions at the site warrant such action.
    EPA will accept comments on this proposed deletion for thirty days 
following publication of this document in the Federal Register.
    Section II of this document explains the criteria for deleting 
sites from the NPL. Section III discusses procedures that EPA is using 
for this action. Section IV discusses the Smuggler Mountain Superfund 
Site and explains how the Site meets the deletion criteria. Section V 
summarizes this document.

II. NPL Deletion Criteria

    Section 300.425(e) of the NCP provides that releases may be deleted 
from the NPL where no further response is appropriate. In making a 
determination to delete a release from the NPL, EPA shall consider, in 
consultation with the state, whether any of the following criteria have 
been met:
    (i) Responsible parties or other parties have implemented all 
appropriate response actions required;
    (ii) All appropriate Fund-financed responses under CERCLA have been 
implemented, and no further action by responsible parties is 
appropriate; or
    (iii) The remedial investigation has shown that the release poses 
no significant threat to public health or the environment and, 
therefore, taking remedial measures is not appropriate.
    Even if a site is deleted from the NPL, where hazardous substances, 
pollutants, or contaminants remain at the site above levels that allow 
for unlimited use and unrestricted exposure, EPA will conduct a five-
year review of the site five years after the initiation of the remedial 
action to ensure that the site remains protective of public health and 
the environment. A statutory five-year review was completed at this 
site on November 11, 1997. In the case of this Site, the selected 
remedy is protective of human health and the environment. A subsequent 
five-year review will be completed prior to November 11, 2002. If new 
information becomes available which indicates a need for further 
action, EPA may initiate remedial actions. Whenever there is a 
significant release from a site deleted from the NPL, the site may be 
restored to the NPL without the application of the Hazard Ranking 
System.

III. Deletion Procedures

    The following procedures were used for the intended deletion of 
this Site: (1) EPA Region 8 has recommended deletion of the Smuggler 
Site and has prepared the relevant documents; (2) The State of Colorado 
has concurred with EPA's intent to delete the Smuggler Site; (3) 
Concurrent with this Notice of Intent to Delete, a notice has been 
published in local newspapers and has been distributed to appropriate 
Federal, State and local officials, and other interested parties 
announcing the commencement of a 30-day public comment period on EPA's 
Notice of Intent to Delete; and, (4) The Region has made all relevant 
documents available in the Regional Office and local Site information 
repositories.
    Deletion of the Site from the NPL does not in itself create, alter, 
or revoke any

[[Page 43130]]

individual's rights or obligations. The NPL is designed primarily for 
informational purposes and to assist Agency management. As mentioned in 
section II of this document, Sec. 300.425(e)(3) of the NCP states that 
the deletion of a Site from the NPL does not preclude eligibility for 
future response actions should future Site conditions warrant such 
action.
    Prior to deletion of this Site, EPA's Regional Office will accept 
and evaluate public comments on EPA's Notice of Intent to Delete before 
making a final decision to delete. If necessary, the Agency will 
prepare a Responsiveness Summary to address any significant comments 
received.
    A deletion occurs when the Regional Administrator places a final 
notice in the Federal Register. Generally, the NPL will reflect 
deletions in the final update following the notice.

IV. Basis for Intended Site Deletion

    The following summary provides EPA's rationale for recommending 
deletion of the Smuggler Mountain Superfund Site.

A. Site Background

    The Smuggler Mountain Superfund Site is located in northeastern 
Aspen, Pitkin County, Colorado. It is in the Roaring Fork River valley, 
on the southwestern flank of Smuggler Mountain. The Site is largely 
developed, containing large and small condominiums, mobile home parks, 
a tennis club and numerous single family residences. The Site was 
placed on the National Priorities List (NPL) on June 10, 1986 (51 FR 
21073).
    Soil analyses in the early 1980's, conducted first by residents and 
later by EPA and the Potentially Responsible Parties (PRP's), 
identified concentrations of lead as high as 46,000 parts per million 
(ppm), well above EPA's cleanup level of 1,000 ppm. Elevated levels of 
cadmium were also found in the soils of the site. The sources of the 
lead and cadmium are the waste rock and tailings (mine wastes) from the 
mines on Smuggler Mountain. These wastes are exposed, covered or mixed 
with native soils across the site.
    The Site has been divided into two study areas or Operable Units 
(OUs)--OU1 and OU2. OU1 is mainly a residential area on the 
northeastern edge of the town of Aspen and covers approximately 300 
acres. OU2 includes the mine site on the upward slope of Smuggler 
Mountain just north of OU1 and covers approximately 25 acres.
    Three mine waste dumps, containing an estimated 22,000 cubic yards 
of mine wastes, are located on the mine site. Potential future mining 
activities at OU 2 are expected to produce as much as 2,100 cubic yards 
of additional waste rock per year. These wastes will be placed on the 
existing dumps. The mine site dumps can accommodate the projected 
quantities of waste for the projected life of the mine without 
significantly changing the character of the dumps.

B. Early Actions Performed

    A number of investigations have been undertaken at the site. An EPA 
Field Investigation Team sampled the site in 1983. This study was the 
result of a request by Pitkin County to characterize any human or 
environmental threat posed by abandoned mine tailings in the northeast 
quarter of the Aspen townsite.
    Another study was sponsored by Western Slope Development Company on 
behalf of the Hunter Creek Condominiums, and a plan for surface 
covering and revegetation was developed for the areas surrounding the 
development (1985). Similar studies were conducted by other condominium 
developments in the area. In July 1985, discussions were held between a 
number of potentially responsible parties and EPA resulting in a 
Remedial Investigation/Feasibility Study (RI/FS). The RI/FS was 
conducted by Fred C. Hart Associates, Inc.

C. Remedial Investigation/Feasibility Study (RI/FS)

    The RI/FS Report was finished and released in March 1986. 
Environmental protection goals and remedial objectives used to analyze 
potential remedial alternatives called for an isolation of the source 
of the contamination (lead in mine wastes) to prevent direct contact 
and the distribution of windblown dusts. The recommended remedial 
action from the selection of two alternatives was surface sealing 
(capping) and grading. An RI/FS Addendum for OU 2 was issued on May 7, 
1986, to characterize the nature and extent of contamination and 
determine the appropriate extent of remedy at the Smuggler-Durant Mine 
Site.
    The contaminants of concern at the Smuggler site are primarily lead 
and cadmium in soils. Lead and cadmium are hazardous substances within 
the meaning of CERCLA section 101(14), 42 U.S.C. 9604(14). Potential 
and/or actual routes of exposure are direct ingestion of contaminated 
soils and inhalation of wind blown dust.
    There are no surface water sources on or flowing through the area. 
Nor are there any significant gullies entering or leaving the area. 
Thus, there is little opportunity for exposure to potentially 
contaminated runoff. Additionally, there are no known threatened or 
endangered wildlife or plant species inhabiting the site.

D. ROD & ESD Findings & Cleanup Activities Performed

    In September 1986, a Record of Decision (ROD) was issued that 
divided the Site into two OUs. The OU 1 remedy was modified by several 
Explanations of Significant Differences (ESDs), the last of which was 
dated June, 1993. OU 1 is mostly residential. The remedy selected in 
the ROD was solely for OU 1, but OU 2 was briefly discussed. The mine 
site (OU 2) is not developed for residential use, but does include the 
Smuggler Mine on Smuggler Mountain. OU 2 is an ongoing mining operation 
and operations are expected to continue for the next 25-30 years and 
perhaps indefinitely. The remedy selection for OU 2 was documented in 
an Action Memorandum.
    Operable Unit 1. During the OU1 Remedial Design (RD), additional 
technical information showed that the OU 1 remedy was not implementable 
due to the unexpectedly high volume of soils. The ROD was modified in 
the March 1989 ESD. This ESD described a plan to remove the top two 
feet of soils containing more than 1,000 ppm lead in the residential 
areas, an additional on-site repository for the extra volume of soil, 
and institutional controls to ensure the permanence of the remedy. 
However, the Aspen community found this remedy unacceptable and the 
plan was put on hold pending further investigation.
    The Aspen community submitted an alternative proposal to EPA which 
resulted in a second ESD issued in May 1990. The May 1990 ESD included 
a greater reliance on Institutional Controls (ICs) and removal of 6 
inches of contaminated soil in the Hunter Creek and Centennial 
Condominium areas. For individual properties, the protective cover of 
clean soil, placed over contaminated areas, would be reduced from two 
feet to a geotextile liner overlain with one foot of clean soil. Pitkin 
County adopted ICs in May, 1991, but they were repealed based upon 
citizen concerns about the need for any remedy at all.
    EPA issued a Minor Modification to the remedy in October of 1991 
that recognized that landowners could implement land use controls 
rather than local government. The modification provided for 
implementation of ICs by the adoption and enforcement of local 
ordinances by Pitkin County or the City of Aspen, by compliance with 
EPA approved Operation and Maintenance

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plans by private parties or by the use of EPA's enforcement authority.
    Some citizens contended that the cleanup, with heavy equipment and 
dust, would be more hazardous than living with the health risk at the 
Site. To address the community's concerns, an independent panel, called 
a Technical Advisory Committee (TAC), was convened in October of 1992. 
The TAC included six nationally recognized lead experts and three 
technical advisors. It released a final report in January 1993. The 
June 1993 ESD was based on the TAC report.
    The June 1993 ESD modified the ROD and previous ESDs. The OU 1 
actions were to be implemented through a Partial Consent Decree with 
Pitkin County filed with the United States District Court for the 
District of Colorado on March 24, 1995, for civil action No. 89-C-1802. 
The final OU 1 remedy selected and ultimately implemented was: (1) The 
Pitkin County Health Department agreed to a blood lead surveillance 
program for young children and implemented an indoor dust sampling 
program over a two year period; (2) The berm area was to be capped with 
clean soil and revegetated. Other common-use areas of exposed mine 
waste, including Mollie Gibson Park, were to be covered, revegetated 
and monitored; (3) Vegetable gardens were required to be planted in at 
least 12 inches of clean soil; and (4) The Aspen/Pitkin Environmental 
Health Department was required to evaluate site construction projects 
or land use changes to determine whether they present a threat of soil 
exposure to young children.
    The ESD also stated that groundwater monitoring would cease and 
that a ground-water corrective action was not necessary. Site 
conditions suggested that the groundwater contamination identified 
earlier was due to the high natural metals content in the soils, or the 
result of well materials and ultimately not a health threat.
    EPA was also to make a final determination regarding remediation of 
the OU 1 residential soils based on EPA's review of completed lead 
speciation, bioavailability, and blood lead monitoring studies. Please 
see the ``Monitoring Results'' section.
    Operable Unit 2. An Engineering Evaluation/Cost Analysis (EE/CA) 
was conducted for OU2 to determine the necessary removal actions. The 
EE/CA was completed on January 25, 1995 and stated the following 
removal objectives: abate the threat of direct contact with lead 
contaminated soils and waste rock in mine waste dumps; abate the threat 
of inhalation of contaminated dust; abate the threat of migration of 
contamination via air and surface water; and attain applicable or 
relevant and appropriate requirements (ARARS).
    The removal actions, outlined in an Action Memorandum dated April 
19, 1995, were eventually made part of an Administrative Order on 
Consent with the mine owners in May 1995. An Action Memorandum was used 
because of the simplicity of the response action. The removal action 
selected in the OU2 Action Memorandum included the following: (1) 
Regrading a part of mine dump #2 to drain back into the mountain; (2) 
Cribbing the unstable, if any, portions of the toe of Dump #2. (This 
has turned out to be unnecessary.); (3) Regrading the lower parking 
area to drain back into the mountain; (4) Controlling dust emissions 
from dirt roads and the parking area by periodic spraying of a 
magnesium chloride dust suppressant solution; and (5) Extending the 
existing fence to restrict entry to the lower portion of the mine site. 
All of the work was completed by September 1996, except for the second 
activity. The toe of Dump #2 was not unstable, therefore cribbing was 
not necessary.

E. Protectiveness

    Monitoring Results. Under the OU 1 June 1993 ESD, EPA was to make a 
final determination regarding remediation of the OU 1 residential soils 
based on EPA's review of completed lead speciation, bioavailability, 
and blood lead monitoring studies. The results of the soil 
bioavailability study may be found in the May 1996 preliminary report, 
``Bioavailability Of Lead In Soil Samples From The Smuggler Mountain 
NPL Site Aspen, Colorado.'' This study showed that bioavailability of 
predominately lead carbonate was near the EPA default of 30% (absolute) 
which further substantiated the need for a blood lead assessment to 
help ascertain potential future risks.
    In 1996, the Pitkin County Health Department's contractor, the 
University of Cincinnati (UC), and EPA Region 8 designed a biological 
and environmental sampling study to identify blood lead levels in 
children associated with lead levels found in the children's play 
environment. This biomonitoring study was recommended by the TAC and 
included in the 1993 ESD. Children between the ages of 1 and 7 years 
were identified who lived in the more contaminated yards, and venous 
blood samples were obtained. At the same time the biological samples 
were obtained, environmental samples were taken (indoor and exterior 
dust, soil, water, and hand-wipes from the children).
    To complete the requirement of identifying all pertinent facts 
surrounding the demographic element for the study, a survey was created 
to document all variables that might affect the results found in the 
blood study. In other words, all major sources and factors that might 
impact the blood lead levels found in the children were identified.
    The schedule of events focused on obtaining the biological and 
environmental samples in the late Summer and early Fall of 1996 (and 
was partially repeated in the early Fall of 1997). This was done to 
optimize the time when the children had been exposed to their outside 
environment, and to maximize the level of lead they had obtained 
throughout the summer.
    The final report summarizing the results of the blood lead study 
and incorporating data from previous studies was completed in October 
1998. The report, titled ``Blood Lead Surveillance and Exposure of 
Young Children to Elevated Soil Lead at the Smuggler Superfund Site, 
Aspen, CO--Final Report,'' was prepared by UC.
    Additional analyses of the study were conducted by EPA Region 8 
toxicologist. These findings can be found in a report titled ``Further 
Assessment of Risks from Exposure to Lead in Soils at the Smuggler 
Superfund Site, Aspen, CO, Using a Weight of Evidence Approach,'' EPA 
Region 8, Denver, CO, May 1999 (Gerry Henningsen, Region 8 
Toxicologist).
    Both reports conclude that children living on the Site are not at 
unacceptable risk due to exposure to lead in the soil. Although 
environmental lead levels are slightly elevated, and the EPA IEUBK 
modeling indicates some potential risk to children who are in contact 
with this lead, repeated screening of children shows no impact of this 
exposure on blood lead levels of children at the Site. Consequently, 
EPA has concluded that further remediation of the OU 1 soils is not 
needed to adequately protect human health.
    O&M Assurances. The OU 1 Operations and Maintenance Plan (O&M Plan) 
is represented in its entirety by the Institutional Controls (ICs) 
enacted for OU1 under the Consent Decree. After the signing of the 
Consent Decree, Pitkin County proposed amendments to the Pitkin County 
Code to enact ICs (Land Use Restrictions) for the Site. These ICs were 
reviewed and approved by EPA and enacted by the City of Aspen and 
Pitkin County to restrict the movement of contaminated soils in and 
from the Site and to aid in preserving the

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integrity of the remedy constructed at the Site.
    With the OU 1 Consent Decree, The Aspen/Pitkin Environmental Health 
Department has assured EPA and the State that all necessary ICs are in 
full force and effect within the Site boundary. The Consent Decree also 
includes reopeners in the event that the County were to repeal or 
disregard these ordinances. A Five-year Review conducted by EPA and 
completed on November 7, 1997, confirmed that these controls are in 
force and that the program is working.
    A recent amendment to the OU 2 AOC has provided EPA and the State 
with indefinite O&M assurances. As stated in the AOC Amendment, the O&M 
Plan, as defined by the EE/CA, Action Memorandum and original workplan, 
will provide for maintenance of runoff control, dust control, 
restricted site access and site reclamation measures. This O&M Plan 
will become effective upon the termination of the permit with the 
Colorado Mined Land Reclamation Board and will be implemented by the 
PRP, Wright and Preusch Mining, LTD.

F. Community Relations

    Community outreach at the Smuggler Mountain Superfund Site 
included: timely information about the Superfund process, ongoing 
communications, and opportunities for community participation in the 
decision-making process for the Site remedy. Specific activities 
included monitoring community concerns, preparation and mailing of fact 
sheets, coordination of community meetings and providing communication 
between EPA, the community and Pitkin County (and the other PRPs). 
EPA's outreach efforts to meet community needs and interests resulted 
in integral participation by the Aspen community and periodic 
revision(s) to the Site remedy.

V. Summary

    The responsible parties have implemented all appropriate response 
actions required to sufficiently protect human health and the 
environment. Reports on lead speciation, bioavailability, and blood 
lead monitoring studies have concluded that children living on the Site 
are not at unacceptable risk due to exposure to lead in the soil. Also, 
this Site meets all the site completion requirements as specified in 
Close Out Procedures for National Priorities List Sites (OSWER 
Directive 9320.2-09). Further, O&M of the Site is assured via the OU 1 
Consent Decree and the OU 2 AOC and AOC Amendment.
    Because hazardous substances will remain at the site, EPA will 
conduct periodic inspections of the site to ensure that the remedy 
remains protective of human health and the environment. EPA is required 
to conduct such reviews under section 121(c) of CERCLA and the NCP.
    EPA, with the concurrence of the State of Colorado, has determined 
that all appropriate response actions required by CERCLA at the 
Smuggler Mountain Site have been completed, and that no further cleanup 
by responsible parties is appropriate.

    Dated: July 27, 1999.
Jack W. McGraw,
Acting Regional Administrator, Region 8.
[FR Doc. 99-20199 Filed 8-6-99; 8:45 am]
BILLING CODE 6560-50-P