[Federal Register Volume 69, Number 52 (Wednesday, March 17, 2004)]
[Proposed Rules]
[Pages 12608-12612]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-5875]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[FRL-7637-4]
National Oil and Hazardous Substances Pollution Contingency Plan;
National Priorities List
AGENCY: Environmental Protection Agency.
ACTION: Notice of intent to delete the Love Canal Superfund site from
the National Priorities List.
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SUMMARY: The Environmental Protection Agency (EPA), Region II,
announces its intent to delete the Love Canal Superfund site (Site)
from the National Priorities List (NPL) and requests public comment on
this action. The NPL is Appendix B of the National Oil and Hazardous
Substances Pollution Contingency Plan (NCP), 40 CFR Part 300, which EPA
promulgated pursuant to Section 105 of the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA), as amended. EPA and
the State of New York (State), through the New York State Department of
Environmental Conservation (NYSDEC), have determined that all
appropriate response actions under CERCLA have been implemented and
that no further response action pursuant to CERCLA are appropriate.
DATES: Comments concerning this Action must be received by April 16,
2004.
ADDRESSES: Written comments should be submitted to: Damian J. Duda,
Remedial Project Manager, Emergency and Remedial Response Division,
U.S. Environmental Protection Agency, Region II, 290 Broadway, 20th
Floor, New York, New York 10007-1866.
Comprehensive information on this Site is available through the EPA
Region II public docket contained at: U.S. Environmental Protection
Agency, Region II, Superfund Records Center, 290 Broadway, Room 1828,
New York, NY 10007-1866, (212) 637-4308.
Hours: 9 a.m. to 5 p.m., Monday through Friday.
Information on the Site is also available for viewing at the
following information repository: U.S. Environmental Protection Agency,
530 Third Street, Niagara Falls, New York 10460, (716) 285-8842.
FOR FURTHER INFORMATION CONTACT: Damian Duda, at the address provided
above, by telephone at (212) 637-4269, by electronic mail at
[email protected] or by FAX at (212) 637-3966.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. NPL Deletion Criteria
III. Deletion Procedures
IV. Basis for Intended Site Deletion
I. Introduction
EPA Region II announces its intent to delete the Love Canal
Superfund site, located in the City of Niagara Falls, Niagara County,
New York from the NPL and requests public comment on this action. The
NPL is Appendix B of the NCP, which EPA promulgated, pursuant to
Section 105 of CERCLA. 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. Sites on the NPL can have remedial
actions financed by the Hazardous Substances Superfund Response Trust
Fund (Fund). As described in 40 CFR 300.425(e)(3) of the NCP, a site
deleted from the NPL remains eligible for remedial actions, if
conditions at the site warrant such action.
The Site is located in the southeast corner of the City of Niagara
Falls, approximately \1/4\ mile north of the Niagara River in Niagara
County, New York.
EPA will accept comments concerning the deletion of this Site from
the NPL for thirty days after publication of this notice in the Federal
Register.
II. NPL Deletion Criteria
The NCP establishes the criteria that the Agency uses to delete
sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be
deleted from the NPL where no further response is appropriate. In
making this determination, EPA, in consultation with the State of New
York, shall
[[Page 12609]]
consider whether any of the following criteria have been met:
(i) Responsible or other parties have implemented all appropriate
response actions required; or,
(ii) All appropriate Fund-financed responses under CERCLA have been
implemented, and no further response actions 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, implementing remedial measures is not appropriate. 40 CFR
300.425(e)(1).
III. Deletion Procedures
The following procedures are being used for the intended deletion
of the Site:
(1) EPA Region II issued the following decision documents: a
Decision memorandum in July 1982; three Records of Decision (RODs) in
March 1985, September 1987 and September 1988; three Explanations of
Significant Differences (ESDs) in June 1989, November 1996 and December
1998; and, a ROD Amendment in May 1991, all of which describe the
selected remedies at the Site.
(2) EPA, NYSDEC and the Potentially Responsible Party (PRP)
designed and constructed the various remedies at the Site. EPA and
NYSDEC monitored the design and construction activities. EPA prepared a
Final Closeout Report (available upon request), which describes the
remedial activities that were implemented and which finds that all
areas of concern described in the NPL listing and the various decision
documents have been adequately addressed.
(3) EPA Region II recommends deletion and has made all relevant
documents available in the Regional office and local information
repository.
(4) The State of New York, through the NYSDEC, has concurred with
the deletion decision in a letter dated September 30, 2003.
(5) Concurrent with the publication of this Notice of Intent to
Delete, a notice has been published in two local newspapers and has
been distributed to appropriate Federal, State and local officials and
any other interested parties, announcing a thirty (30)-day public
comment period on the deletion package.
The NCP provides that EPA shall not delete a site from the NPL
until the public has been afforded an opportunity to comment on the
proposed deletion. EPA Region II will accept and evaluate public
comments before making a final decision to delete. If a decision is
made to delete this Site, the decision will be made in a final Notice
of Deletion in the Federal Register. Deletion of a site from the NPL
does not affect responsible party liability or impede Agency efforts to
recover costs associated with response efforts. The NPL is designed
primarily for informational purposes and to assist Agency management.
IV. Basis for Intended Site Deletion
Between 1942 and 1952, the Hooker Chemicals & Plastics Corporation
(now Occidental Chemical Corporation (OCC)) disposed of approximately
22,000 tons of drummed and liquid chemical wastes, including polycyclic
aromatic hydrocarbons, halogenated organics, pesticides, chlorobenzenes
and dioxin into the abandoned Love Canal Landfill (LCL).
Problems with odors and residues in the basements and backyards of
properties abutting the LCL were first reported in the 1970's. Also,
during the 1970's, unusually high precipitation in the region caused
the water table within the LCL to rise, which allowed contaminants to
spread laterally in surficial soils and along utility bedding,
eventually seeping into the basements of nearby homes. Dioxin and other
contaminants also migrated from the LCL to the sanitary and storm
sewers which extended outside the LCL boundaries, some with outfalls
into nearby creeks which are tributaries to the Niagara River. In 1978,
the New York State Department of Health (NYSDOH) identified more than
80 chemicals in the LCL and adjacent soils.
In August 1978, President Carter issued the first of two Emergency
Declarations at the Site which provided Federal funding for remedial
work to contain the chemical wastes at the Site and for the relocation
of the residents in the homes (239 properties) directly adjacent to the
LCL; these homes were subsequently identified as Ring I and Ring II.
In May 1980, President Carter issued the second Declaration of
Emergency at the Site. This emergency declaration established the
Emergency Declaration Area (EDA), the approximately 350-acre
neighborhood surrounding the Site, and authorized $20 million of
Federal funds for the purchase of homes. The Federal Emergency
Management Agency (FEMA) disbursed these funds and, together with
NYSDEC, relocated approximately 950 families, of the more than 1,050
families affected, from a 10-square-block area surrounding the LCL.
In 1981, EPA proposed the addition of the Site to the NPL, making
it available for funding under CERCLA. The Site was added to the NPL in
1983.
In May 1982, EPA's Office of Research and Development issued the
Environmental Monitoring at Love Canal Study (May 1982) (EMS) which
evaluated the nature and extent of contamination throughout the EDA,
including air, soils, surface water, sediments and biota sampling.
In July 1982, the EPA Region 2 Regional Administrator issued a
Decision Memorandum: Cooperative Agreement with the State of New York
for Love Canal. This memorandum was a precursor to the Superfund ROD
and documented the work that had been performed by NYSDEC, approved
additional Federal funding, and identified a phased approach for
conducting eight additional tasks which included the following:
Undertake Site containment via an expanded
leachate collection system and/or other containment option.
Investigate/remediate contamination in the north
end storm and sanitary sewer system.
Investigate/remediate contamination in Black and
Bergholtz creeks.
Investigate/remediate contamination in the south
end storm sewers.
Investigate/remediate contamination in the
western sanitary sewers and lift stations.
Develop long-term monitoring to ensure the
effectiveness of the cleanup activities.
Investigate/remediate 102nd Street outfall.
Prepare summary document with conclusions.
By June 1983, the Rings I and II homes, adjacent to the LCL, as
well as the 99th Street School, had been demolished.
In August 1983, in order to address concerns raised by the Office
of Technology Assessment and the public regarding the 1982 EMS, EPA
established the multi-agency Love Canal Technical Review Committee
(TRC) to act as a management group to provide interagency coordination
and oversight for further remedial and habitability activities for the
Site. The TRC was comprised of senior-level representatives from EPA,
U.S. Department of Health and Human Services/Centers for Disease
Control, NYSDOH and NYSDEC. The principal task of the TRC was to
determine the habitability of the EDA surrounding the Site.
The efforts of the TRC led to the development of the Love Canal
Emergency Declaration Area Habitability Study (LCHS). A draft
Habitability Criteria document was
[[Page 12610]]
developed, pursuant to recommendations of an independent panel, and was
released for peer review. The final habitability criteria were
established after this extensive peer review process of the draft
habitability criteria. The development of the five-volume LCHS was
based upon the final habitability criteria.
In October 1983, EPA issued the Environmental Information
Document--Site Investigations and Remedial Action Alternatives--Love
Canal which evaluated contamination in the creeks and sewers
surrounding the LCL and provided treatment alternatives for their
remediation.
In 1984, NYSDEC installed a 40-acre cap over the LCL, consisting of
a high-density polyethylene liner, which was then covered by 18 inches
of clean soil and seeded for grass. In addition, NYSDEC performed high-
pressure cleaning of the leachate collection system in February 1983 to
improve its performance. The permanent leachate treatment plant began
operation in December 1979. Modifications were made to the leachate
treatment plant in December 1984.
In March 1985, EPA issued the Love Canal Sewer and Creek Remedial
Alternative Evaluation and Risk Assessment, which evaluated risks posed
by contamination in the creeks and sewers, further evaluated
alternatives for remediating the creeks and presented a proposed
remedial action plan.
In May 1985, EPA issued a ROD selecting a remedy to remediate the
sewers and the creeks in the EDA. This ROD called for:
Hydraulically cleaning the sewers;
dredging and hydraulically cleaning the Black
Creek culverts;
removing Black and Bergholtz Creek sediments
with dioxin concentrations exceeding one part per billion (ppb);
construction of an on-site interim storage
facility for the creek and sewer sediments; and,
remediation of the 102nd Street outfall area
(which was subsequently addressed under the remedial action for the
102nd Street Landfill Superfund site).
In August 1985, EPA issued the Long-Term Monitoring Program Design
for the Love Canal Remedial Project which evaluated contamination in
the area groundwater and effectiveness of the barrier drain and cap
system. Hundreds of groundwater monitoring wells were installed between
1985 and 1987.
In 1986, the Superfund Amendments and Reauthorization Act (SARA)
was enacted; Section 312 of SARA included specific provisions to
address the significant program aspects of the Site. These included:
Completion of a study of the habitability of the
EDA, i.e., the LCHS.
Acquisition of those properties within the EDA
which were not eligible for government acquisition under the FEMA
acquisition program.
Maintenance of property acquired under the FEMA
and EPA's SARA acquisition programs.
Provision of technical assistance to the Love
Canal Area Revitalization Agency (LCARA) to facilitate their efforts to
revitalize the EDA. LCARA was a New York State Agency that was
designated as the lead agency in the rehabilitation effort of the Love
Canal EDA.
During 1986 and 1987, the remediation of the contaminated sewers
was performed; this included the clean-out of 68,000 linear feet of
storm and sanitary sewers. An on-site facility was constructed to
dewater sewer contaminants. This remedial action conformed with the
1985 ROD, requiring the removal of dioxin-contaminated sediments from
the creeks and sewers. Additional sewer cleanup was performed pursuant
to the 1987 ROD (discussed below); the 1987 ROD also documented earlier
elements of the sewer cleanup.
From 1987 until 1989, Black and Bergholtz Creeks were dredged of
approximately 14,000 cubic yards of sediments. Clean riprap was placed
in the creek beds, and the banks were replanted with grass. This
remedial action conformed with the 1985 ROD, requiring the removal of
dioxin-contaminated sediments from the creeks and sewers.
In June 1987, EPA issued the Alternatives for Destruction/Disposal
of Love Canal Creek and Sewer Sediments report which provided various
alternatives for the ultimate disposal of the sediments, described
below in more detail.
In 1987, EPA entered into the first of two cooperative agreements
with LCARA to implement the mandates of Section 312 of SARA/CERCLA.
This first agreement dealt with EDA property acquisition. Under EPA's
and other acquisition programs, including FEMA's, LCARA purchased over
600 properties in the EDA.
In October 1987, EPA issued a second ROD selecting a remedy to
address the destruction and disposal of the dioxin-contaminated
sediments from the sewers and creeks. The ROD called for:
construction of an on-site facility to dewater
the sewer and creek sediments and to contain the dewatered sediments;
construction of a separate on-site facility to
treat the dewatered sediments through high temperature thermal
destruction;
on-site thermal treatment of the residuals
stored at the Site from the leachate treatment facility and other
associated Love Canal waste materials; and,
on-site disposal of any nonhazardous residuals
from the thermal treatment or incineration process.
From 1987 until 1988, the LCHS sampling and evaluation were
performed to evaluate air and soil contamination in the EDA and other
comparison neighborhoods, using specific habitability criteria, as
discussed above. Volume I--Final Report of the LCHS, Introduction and
Decision-Making Documentation was issued in May 1988. The subsequent
four volumes of data documentation were issued later. Volumes II and
III presented the results of the assessment for the Love Canal
indicator chemicals for air and soil. Volume IV presented the
assessment of the dioxin soil assessment. Volume V summarizes the
subsequent peer review of Volumes II-IV and the response to that peer
review.
In September 1988, using the results of the LCHS, the New York
State Commissioner of Health issued a Decision on Habitability, which
identified appropriate land uses for the seven designated areas of the
EDA. Areas 1-3 were declared not suitable for residential use, i.e.,
uninhabitable, but were suitable for commercial/industrial use. Areas
4-7 were deemed habitable, i.e., suitable for residential use.
In March 1988, EPA issued the 93rd St. School Remedial
Investigation and Feasibility Study which evaluated the nature and
extent of contamination at the 93rd St. School and provided
alternatives for the remediation of the contamination.
In September 1988, EPA issued a third ROD which selected a remedy
for contaminated soils at the 93rd Street School. The selected remedy
included the following actions:
excavation of approximately 7,500 cubic yards of
contaminated soil adjacent to the school;
on-site solidification and stabilization of the
contaminated soils; and,
return of the stabilized soils to the excavated
area.
Prior to 1989, EPA, through its cooperative agreement with NYSDEC,
provided funds for the maintenance of the abandoned properties in the
EDA. Subsequently, in 1989, NYSDEC passed the responsibility for home
maintenance
[[Page 12611]]
to LCARA. At this time, EPA then entered into a second cooperative
agreement with LCARA to implement the maintenance and technical
assistance (MATA) mandates of Section 312 of CERCLA. Under this MATA
agreement, EPA provided LCARA with funding to maintain improved and
unimproved properties in the EDA and also to demolish EDA homes that
had deteriorated to the extent that they presented safety concerns or a
net loss to the overall value of the property. Over 250 homes were
demolished under the MATA program.
EPA's technical assistance has supported LCARA's efforts to
revitalize the EDA (EPA did not provide Federal funds for the actual
repair or reconstruction of buildings within the EDA). LCARA sold
approximately 260 homes in the EDA areas designated for residential use
and prepared a master plan for the areas designated for commercial/
industrial use.
In 1989, EPA issued an ESD to the 1985 and 1987 RODs, which
specified that creek sediments were to be dewatered at creek side,
placed in polyethylene bags and then transported to and stored at OCC's
Resource Conservation and Recovery Act-permitted storage buildings at
its Niagara Falls Main Plant, rather than at the Site, pending high
temperature thermal destruction at OCC's Niagara Falls Main Plant. In
addition, other Love Canal wastes, including the sewer sediments and
other remedial wastes originally targeted for thermal treatment at the
Site, were also to be thermally treated at OCC's Niagara Falls Main
Plant rather than at the Site. OCC, the United States and the State of
New York entered into an agreement, i.e., a partial consent decree,
filed in U.S. District Court, to implement this modification to the
1985 and 1987 RODs.
In May 1991, EPA issued an amendment to the 1988 ROD for the 93rd
Street School, which modified the selected remedy and called for
excavation and off-site disposal of the contaminated soils, rather than
disposal at the 93rd Street School site.
In September 1992, the contaminated soils at the 93rd Street School
were excavated; these materials were used for alternate grading
material for the 102nd Street Landfill Superfund site Remedial Action,
i.e., subgrade material for the capping remedy.
In November 1996, EPA issued a second ESD for the 1987 ROD. This
ESD authorized thermal treatment and/or land disposal of the stored
Love Canal waste materials at an off-site commercial incinerator and
landfill rather than at OCC's Niagara Falls Main Plant.
In February 1998, OCC began shipping the bagged Love Canal wastes
from its storage facilities for disposal (thermal destruction or
landfilling).
In December 1998, EPA issued a third ESD which provided notice that
EPA granted a treatability variance to OCC to eliminate the requirement
that the stored Love Canal waste materials containing dioxin at
concentrations between 1 and 10 ppb be incinerated. As a result of this
variance, these materials could be disposed at a commercial hazardous
waste landfill without treatment.
In August 1999, this remedial action was completed and the
remaining bags of wastes were shipped off-site for disposal. A total of
10,262 bags were land disposed in a Subtitle C facility and 5,234 bags
were incinerated, with the resulting residues being landfilled at
Subtitle C facilities.
LCARA completed its charge to revitalize the EDA and, in 2003, was
subsequently dissolved by an act of the State legislature. At the
present time, all residential and commercial properties in Areas 4-7
have been rehabilitated, sold by LCARA and restored to active use.
LCARA rehabilitated and sold approximately 260 homes in the areas
identified for residential use and prepared a master plan for the areas
designated for commercial/industrial use. Certain parcels in EDA Areas
2-3 remain vacant, and these vacant properties are properly zoned and
have deed restrictions which comply with the original Decision on
Habitability, limiting use to commercial/industrial purposes only,
unless remediated. These parcels were subsequently sold to real estate
developers.
EPA, NYSDEC and the PRP used engineering consultants and
contractors to perform the remedial design and/or construction for the
Site. EPA and NYSDEC also performed oversight for activities conducted
by the PRPs and their contractors, as well as EPA and NYSDEC
contractors.
In 1982, EPA established a Public Information Office in downtown
Niagara Falls to handle the Site, as well as other EPA Superfund sites
in the Niagara Falls and Buffalo, New York area. All decisions made
about the Site were conducted in a public forum, especially during the
development of the LCHS, which included the monthly TRC meetings, as
well as expert panel meetings, which were all open to the public.
Residents of the EDA were informed of each meeting and were encouraged
to attend. All associated minutes, reports and other documents
generated during the more than 70 TRC meetings, as well as each expert
panel meeting, et al., were made available to the public for review at
the EPA offices in Niagara Falls. The final TRC meeting was held in
1991.
Institutional controls are in place in both the containment area of
the Site and the EDA. New York State (NYS) has a permanent easement on
the Site property, providing for the exclusive use and occupancy of the
Site property. By Consent Decree, NYS granted OCC exclusive use and
occupancy of the Site property for the purpose of providing continued
O&M for the Site remedy. OCC retains exclusive use and occupancy, as
long as the Consent Decree is in effect. The institutional controls on
the vacant parcels in the non-habitable sections of the EDA (Areas 1-3)
are maintained by zoning and deed restrictions. The deeds for these
properties require that NYSDEC be notified both when these properties
are sold and when these properties are being considered for any other
use than commercial and/or light industrial. The deeds also state that
all identified use limitations and restrictions of the property shall
run with the land and bind the current owner and any successors in
perpetuity or until such time as NYSDEC shall determine that such
institutional controls are no longer necessary for the protection of
public health and the environment. The deed also identifies that some
soil remediation is required prior to any potential residential use.
Under the direction of NYSDEC, OCC, through its contractor Miller
Springs Remediation Management, performs O&M of the Site remedy and
maintains day-to-day operations at the Site, as identified in two
separate consent decrees with NYS and the United States, respectively.
The continued effectiveness of the remedy is monitored, pursuant to
both consent decrees, as well as through the performance of EPA's five-
year reviews.
A five-year review of Site remedies was completed on September 30,
2003. The five-year review ensures that the implemented remedies
protect human health and the environment and that they function as
intended by the decision documents.
EPA, in consultation with the State of New York, through the
NYSDEC, has determined that all appropriate response actions, under
CERCLA, have been implemented at the Site and no further response
actions, other than monitoring, operation, maintenance and compliance
with institutional controls, are necessary.
[[Page 12612]]
Hazardous substances remain at the Site above levels that would be
allowed for unlimited use without restrictions. It is the policy of EPA
to conduct five-year reviews of pre-SARA remedies which leave hazardous
substances on-site. EPA completed a five-year review of this Site on
September 30, 2003. The next five-year review should be completed by
EPA and/or NYSDEC before September 30, 2008.
List of Subjects in 40 CFR Part 300
Environmental protection, Chemicals, Hazardous substances,
Hazardous waste, Intergovernmental relations, Penalties, Reporting and
recordkeeping requirements, Superfund, Water pollution control, Water
supply.
Dated: March 4, 2004.
Kathleen C. Callahan,
Acting Regional Administrator, Region 2.
[FR Doc. 04-5875 Filed 3-16-04; 8:45 am]
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