[Federal Register Volume 68, Number 8 (Monday, January 13, 2003)]
[Rules and Regulations]
[Pages 1537-1540]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-515]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[FRL-7436-7]


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

AGENCY: Environmental Protection Agency.

ACTION: Direct final notice of deletion of the Wildcat Landfill 
Superfund Site from the National Priorities List.

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SUMMARY: The Environmental Protection Agency (EPA) Region III is 
publishing a direct final notice of deletion of the Wildcat Landfill 
Superfund Site (Site), located in Kent County, near Dover, Delaware, 
from the National Priorities List (NPL). The NPL, promulgated

[[Page 1538]]

pursuant to section 105 of the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980, as amended (CERCLA), is 
Appendix B of 40 CFR part 300, which is the National Oil and Hazardous 
Substances Pollution Contingency Plan (NCP). This direct final notice 
of deletion is being published by EPA because EPA, with the concurrence 
of the State of Delaware, through the Delaware Department of Natural 
Resources and Environmental Control, has determined that responsible 
parties or other persons have implemented all appropriate response 
actions required under CERCLA and, therefore, no further response 
action pursuant to CERCLA is appropriate.

DATES: This direct final deletion will be effective March 14, 2003 
unless EPA receives adverse comments by February 12, 2003. If adverse 
comments are received, EPA will publish a timely withdrawal of the 
direct final deletion in the Federal Register informing the public that 
the deletion will not take effect.

ADDRESSES: Comments may be mailed to: Mr. Hilary M. Thornton, Remedial 
Project Manager, U.S. EPA Region III (3HS23), 1650 Arch Street, 
Philadelphia, PA 19103-2029, (215) 814-3323.
    Information Repositories: Comprehensive information about the Site 
is available for viewing and copying at the Site information 
repositories located at: U.S. EPA Region III, Regional Center for 
Environmental Information (RCEI), 1650 Arch Street (2nd Floor), 
Philadelphia, PA 19103-2029, (215) 814-5254, Monday through Friday, 8 
a.m. to 5 p.m.; and in Delaware at the Delaware Department of Natural 
Resources and Environmental Control, Site Investigation and Restoration 
Branch, 391 Lukens Drive, New Castle, DE 19720, (302) 395-2600, Monday 
through Friday, 8 a.m. to 4 p.m.

FOR FURTHER INFORMATION CONTACT: Mr. Hilary M. Thornton, Remedial 
Project Manager, U.S. EPA Region III (3HS23), 1650 Arch Street, 
Philadelphia, PA 19103-2029, (215) 814-3323 or 1-800-553-2509.

SUPPLEMENTARY INFORMATION:

Table of Contents:

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

I. Introduction

    EPA Region III is publishing this direct final notice of deletion 
of the Wildcat Landfill Superfund Site from the NPL.
    EPA identifies sites that appear to present a significant risk to 
public health or the environment and maintains the NPL as the list of 
those sites. As described in Sec.  300.425(e)(3) of the NCP, sites 
deleted from the NPL remain eligible for remedial actions if conditions 
at a deleted site warrant such action.
    Because EPA considers this action to be noncontroversial and 
routine, EPA is taking it without prior publication of a notice of 
intent to delete. This action will be effective March 14, 2003 unless 
EPA receives adverse comments by February 12, 2003 on this notice or 
the parallel notice of intent to delete published in the ``Proposed 
Rules'' section of today's Federal Register. If adverse comments are 
received within the 30-day public comment period on this notice or the 
notice of intent to delete, EPA will publish a timely withdrawal of 
this direct final notice of deletion before the effective date of the 
deletion and the deletion will not take effect. EPA will, as 
appropriate, prepare a response to comments and continue with the 
deletion process on the basis of the notice of intent to delete and the 
comments already received. There will be no additional opportunity to 
comment.
    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 Wildcat Landfill Superfund 
Site and demonstrates how it meets the deletion criteria. Section V 
discusses EPA's action to delete the Site from the NPL unless adverse 
comments are received during the public comment period.

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, in consultation 
with the State, shall consider whether any of the following criteria 
have been met:
    i. Responsible parties or other persons have implemented all 
appropriate response actions required;
    ii. All appropriate Fund-financed (Hazardous Substance Superfund) 
response under CERCLA has been implemented, and no further response 
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, 
the taking of remedial measures is not appropriate.
    Even if a site is deleted from the NPL, where hazardous substances, 
pollutants, or contaminants remain at the deleted site above levels 
that allow for unlimited use and unrestricted exposure, CERCLA Sec.  
121(c), 42 U.S.C. 9621(c), requires that a subsequent review of the 
site be conducted at least every five years after the initiation of the 
remedial action at the deleted site to ensure that the action remains 
protective of public health and the environment. 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 deleted site may be restored to the 
NPL without application of the hazard ranking system.

III. Deletion Procedures

    The following procedures apply to deletion of the Site:
    (1) EPA consulted with the State of Delaware on the deletion of the 
Site from the NPL prior to developing this direct final notice of 
deletion.
    (2) The State of Delaware concurred with deletion of the Site from 
the NPL.
    (3) Concurrently with the publication of this direct final notice 
of deletion, a notice of the availability of the parallel notice of 
intent to delete published today in the ``Proposed Rules'' section of 
the Federal Register is being published in a major local newspaper of 
general circulation at or near the Site and is being distributed to 
appropriate federal, state, and local government officials and other 
interested parties; the newspaper notice announces the 30-day public 
comment period concerning the notice of intent to delete the Site from 
the NPL.
    (4) EPA placed copies of documents supporting the deletion in the 
Site information repositories identified above.
    (5) If adverse comments are received within the 30-day public 
comment period on this notice or the companion notice of intent to 
delete also published in today's Federal Register, EPA will publish a 
timely notice of withdrawal of this direct final notice of deletion 
before its effective date and will prepare a response to comments and 
continue with the deletion process on the basis of the notice of intent 
to delete and the comments already received.
    Deletion of a site from the NPL does not itself create, alter, or 
revoke any individual's rights or obligations. Deletion of a site from 
the NPL does not in any way alter EPA's right to take enforcement 
actions, as appropriate.

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The NPL is designed primarily for informational purposes and to assist 
EPA management. Section 300.425(e)(3) of the NCP states that the 
deletion of a site from the NPL does not preclude eligibility for 
further Fund-financed remedial actions, should future conditions 
warrant such actions.

IV. Basis for Site Deletion

    The following information provides EPA's rationale for deleting the 
Site from the NPL:

Site Location and History

    The Wildcat Landfill Superfund Site is a 44-acre landfill situated 
on the west bank of the St. Jones River in Kent County, Delaware 
approximately two and one-half miles southeast of the city of Dover. 
The Site was operated as a permitted sanitary landfill between 1962 and 
1973, accepting both municipal and industrial wastes. Industrial wastes 
suspected to have been disposed of include latex waste and paint 
sludges. Throughout its 11 years of operation the landfill routinely 
violated operating and other permits issued by regulating agencies.
    EPA conducted the initial Site Investigation in May 1982. EPA 
proposed the Site to the NPL on December 30, 1982, and added it to the 
NPL on September 8, 1983 (48 FR 40673).

Remedial Investigation and Feasibility Study (RI/FS)

    The Delaware Department of Natural Resources and Environmental 
Control (DNREC) began the remedial investigation (RI) in September 1985 
and began the feasibility study (FS) in November 1987. EPA and DNREC 
issued the RI/FS report in May 1988. The results of the RI were 
generally as follows:

--The primary contaminants of concern at the Site were trace metals and 
organic contaminants in on-site groundwater, and inorganics in surface 
water and sediments in the northwest pond and leachate seeps near the 
pond.
--The landfill contained some buried, intact drums; the contents of the 
drums had relatively high concentrations of organic contaminants, 
primarily styrene.
--Nearby domestic and commercial wells are all to the west or southwest 
of the Site; none of these wells was contaminated by the landfill. 
However, wells immediately southwest of the Site were thought to be 
susceptible to contamination.
--A net loss of 29 acres of wetland environment resulted from placement 
of the landfill on pre-existing wetlands.

    The FS provided an in-depth analysis of several potential remedial 
alternatives. The FS concluded that if no action were taken there would 
be a potential threat to human health and the environment through 
dermal contact with landfill contents or leachate seeps. There were 
also potential risks associated with future releases of contaminants 
from the landfill into the groundwater and, subsequently, into the 
surface water. The FS provided a detailed analysis of the following 
alternatives: (1) No action; (2) institutional controls and monitoring; 
(3) institutional and surface controls; (4a) containment with a soil 
cap; and (4b) containment with a soil/clay cap. The FS also analyzed 
EPA and DNREC's preferred alternative, which was a combination of 
certain elements of the above alternatives. No response activities 
using CERCLA removal authority were conducted at the Site.

Record of Decision (ROD) Findings

    The Site was divided into two Operable Units, with Operable Unit 1 
(OU1) including the landfill proper, and Operable Unit 2 (OU2) 
including the northwest pond and the so-called racetrack pond or 
replacement pond, which was created southeast of the landfill. EPA 
issued a Record of Decision (ROD) for OU1 on June 29, 1988. The ROD for 
OU1 included:

--Implementation of institutional controls (including groundwater 
management zones and restrictions on use of the property);
--Posting warning signs;
--Replacement of shallow water supply wells adjacent to the Site;
--Covering exposed wastes on the landfill with soil;
--Off-site disposal of drums;
--Installing one additional groundwater monitoring well; and
--Monitoring of the shallow (Columbia) aquifer.

    On November 28, 1988, EPA issued a ROD for OU2. The ROD for OU2 
included:

--Draining and back-filling the northwest pond;
--Creating a replacement pond (racetrack pond) to be joined with the 
existing deepwater pond located southeast of the landfill;
--Installing one monitoring well upgradient of the new racetrack pond 
to monitor the landfill; and
--Implementation of institutional controls to ensure that the integrity 
of the newly-created racetrack pond and the filled northwest pond is 
maintained.

    After a period of negotiations with the potentially responsible 
parties, the State, EPA, and a group of Settlors entered into a Consent 
Decree for implementation of the Remedial Design/Remedial Action for 
both operable units. In December 1989 the Settlors submitted Remedial 
Design (RD) plans and specifications for regulatory review. Black and 
Veatch Science and Technology Corporation prepared the engineering 
plans and specifications on behalf of the Settlors. The U.S. Army Corps 
of Engineers reviewed these plans and provided comments to EPA. In 
February 1991, the State and EPA granted conditional approval of a 
revised set of RD plans and specifications.

Remedial Action Activities

    The Settlors proposed Sevenson Environmental Services as the 
Remedial Action (RA) Contractor. EPA, after consultation with the State 
and the U.S. Army Corps of Engineers, approved the use of Sevenson. The 
Settlors started construction of the RA for both operable units in July 
1991. The U.S. Army Corps of Engineers provided field oversight of the 
RA for EPA.
    During construction a larger-than-anticipated number of drums were 
discovered along the northern and eastern fringes of the landfill. The 
State, EPA, and the Settlors subsequently developed a management plan 
for staging, sorting, and disposing of the unanticipated drums. The 
State established and continues to maintain a Groundwater Management 
Zone for the Site and certain areas adjacent to the Site. A pre-final 
construction inspection was conducted by the State, EPA, and the 
Settlors on April 1, 1992. The final construction inspection followed 
on May 14, 1992.
    On April 26, 2002, documents entitled ``Environmental Protection 
Easement and Declaration of Restrictive Covenants'' were recorded at 
the Office of Recorder of Deeds for Kent County, Delaware, for each of 
the parcels comprising the Site in order to implement the institutional 
controls required by the OU1 and OU2 RODs.
    The RA for OU1 and OU2 eliminated the principal threat posed by the 
Site by reducing the potential for direct contact with the contents of 
the landfill and the sediments of the northwest pond. The RA also 
reduced the potential for erosion of landfill contents into the St. 
Jones River. Finally, the RA provides for monitoring of the groundwater 
in the vicinity of the landfill to ensure the continued effectiveness 
of the RA.

[[Page 1540]]

Operation and Maintenance

    Operation and maintenance (O&M) activities at the Site include 
annual groundwater monitoring and an annual inspection. The annual 
inspection looks at the condition of a variety of items to ensure they 
are operating as intended so the remedy remains protective. Items 
inspected include: Site security and access (fences, gates, locks, and 
roads); the landfill surface, including both capped and uncapped areas; 
monitoring wells; the riverbank, looking for evidence of storm damage 
or erosion; and the replacement pond.
    Groundwater monitoring data show a clear overall downward trend in 
contaminant levels. The levels of some contaminants in some wells 
(notably lead and benzene in MW-4) remain sufficiently high to merit 
continued monitoring. EPA will continue groundwater monitoring until 
all compounds are at levels that allow for unlimited use and 
unrestricted exposure.

Five-Year Review

    In 1996, EPA conducted its first Five-Year Review of the Site to 
determine if the remedy was protective of human health and the 
environment. There were two known deficiencies that affected the 
protectiveness of the remedy at the time of the Five-Year Review: (1) 
The institutional controls called for in the RODs were not yet fully 
implemented; and (2) there were unresolved issues related to who would 
perform O&M at the Site and for how long. Because of these 
deficiencies, EPA concluded that the remedy was not protective at that 
time. EPA conducted its second Five-Year Review in 2001. Progress had 
been made on resolving the two deficiencies, but they were still 
present. EPA again concluded the remedy was not protective at that 
time. Both deficiencies have since been resolved, and EPA has since 
concluded that the remedy is fully protective of human health and the 
environment.
    Since waste is being left in place at the landfill, EPA will 
continue to conduct Five-Year Reviews at the Site. The next Five-Year 
Review is scheduled for October 2006.

Site Redevelopment

    The Site has limited commercial redevelopment potential, but would 
make an excellent park, nature preserve, or open space greenway, 
subject to compliance with the institutional controls and operation and 
maintenance requirements. The landfill waste remains in place and must 
not be disturbed by construction activities. No wells, except 
monitoring wells, may be drilled in the landfill area. EPA and DNREC 
will review the safety of any proposed redevelopment.

Community Involvement

    Public participation activities have been satisfied as required in 
CERCLA Sec.  113(k), 42 U.S.C. 9613(k), and CERCLA Sec.  117, 42 U.S.C. 
9617. Documents in the deletion docket which EPA relied on for 
recommendation of the deletion from the NPL are available to the public 
in the information repositories.

V. Deletion Action

    One of the criteria for site deletion, set forth in Sec.  
300.425(e)(1)(i) of the NCP, specifies that EPA may delete a site from 
the NPL if ``[r]esponsible parties or other persons have implemented 
all appropriate response actions required.'' EPA, with the concurrence 
of the State of Delaware, believes that this criterion has been met. 
Therefore, EPA is deleting the Site from the NPL.
    Because EPA considers this action to be noncontroversial and 
routine, EPA is taking it without prior publication of a notice of 
intent to delete. This action will be effective March 14, 2003 unless 
EPA receives adverse comments by February 12, 2003 on this notice or 
the parallel notice of intent to delete published in the ``Proposed 
Rules'' section of today's Federal Register. If adverse comments are 
received within the 30-day public comment period, EPA will publish a 
timely withdrawal of this direct final notice of deletion before the 
effective date of the deletion and it will not take effect. EPA will 
also prepare a response to comments and continue with the deletion 
process on the basis of the notice of intent to delete and the comments 
already received. There will be no additional opportunity to comment.

List of Subjects in 40 CFR Part 300

    Environmental protection, Air pollution control, Chemicals, 
Hazardous waste, Hazardous substances, Intergovernmental relations, 
Penalties, Reporting and recordkeeping requirements, Superfund, Water 
pollution control, Water supply.

    Dated: December 20, 2002.
Donald S. Welsh,
Regional Administrator, EPA Region III.

    For the reasons set out in the preamble, 40 CFR Part 300 is amended 
as follows:

PART 300--[AMENDED]

    1. The authority citation for part 300 continues to read as 
follows:

    Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 
12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 
2923, 3 CFR, 1987 Comp., p. 193.

Appendix B--[Amended]

    2. Table 1 of Appendix B to Part 300 is amended under Delaware 
(``DE'') by removing the site entry for ``Wildcat Landfill, Dover.''
[FR Doc. 03-515 Filed 1-10-03; 8:45 am]
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