[Federal Register Volume 69, Number 161 (Friday, August 20, 2004)]
[Rules and Regulations]
[Pages 51583-51586]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18966]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[FRL-7802-8]


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

AGENCY: Environmental Protection Agency.

ACTION: Direct final notice of partial deletion of the Davenport and 
Flagstaff Smelters Superfund Site from the National Priorities List.

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SUMMARY: The Environmental Protection Agency (EPA) Region 8 is 
publishing a direct final notice of partial deletion of the Davenport 
and Flagstaff Smelters Superfund Site from the National Priorities List 
(NPL). Specifically EPA intends to delete 23 residential properties 
within the Davenport and Flagstaff Smelters Superfund Site located in 
Salt Lake County, Utah.
    The NPL, promulgated pursuant to section 105 of the Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA) of 
1980, as amended, is Appendix B of 40 CFR part 300, which is the 
National Oil and Hazardous Substance Pollution Contingency Plan (NCP). 
The EPA is publishing this direct final notice of partial deletion with 
the concurrence of the State of Utah, through the Utah Department of 
Environmental Quality (UDEQ), because the EPA has determined that all 
appropriate response actions under CERCLA have been completed at these 
properties and, therefore, further remedial action pursuant to CERCLA 
is not appropriate.
    This partial deletion pertains only to the 23 properties listed in 
section IV of this document and does not include any other portion of 
the Davenport and Flagstaff Smelters Superfund Site. The remainder of 
the Site will remain on the NPL and response activities will continue.

DATES: This direct final partial deletion will be effective October 19, 
2004 unless EPA receives adverse comments by September 20, 2004. If 
adverse comments are received, EPA will publish a timely withdrawal of 
the direct final partial deletion in the Federal Register informing the 
public that the partial deletion will not take effect.

ADDRESSES: Comments may be mailed to Britta Copt, Community Involvement 
Coordinator (80CPI), U.S. EPA Region 8, 999 18th Street, Suite 300, 
Denver, CO 80202-2466, (303) 312-6229.
    Information Repositories: Comprehensive information about the Site 
is available for viewing and copying at the Site information 
repositories located at:
    U.S. Environmental Protection Agency Region 8 Records Center, 999 
18th St., Suite 300, Denver, CO 80202, Hours: Monday--Friday, 8:30 a.m. 
to 4:30 p.m.
    Sandy Branch, Salt Lake County Library, 10100 S Petunia Way, Sandy, 
UT 84092, Hours: Monday--Thursday, 10 a.m. to 9 p.m.; Friday--Saturday 
10 a.m.--6 p.m.; and
    Utah Department of Environmental Quality, 168 North 1950 West, 1st 
Floor, Salt Lake City, Utah, 84116, (801) 536-4400, Hours: Monday--
Friday, 8 a.m. to 5 p.m.

FOR FURTHER INFORMATION CONTACT: Stanley Christensen, Remedial Project 
Manager (8EPR-SR), U.S. EPA Region 8, 999 18th Street, Suite 300, 
Denver, Colorado 80202-2466, (303) 312-6694.

SUPPLEMENTARY INFORMATION:

Table of Contents

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

I. Introduction

    EPA Region 8 is publishing this direct final notice of partial 
deletion of the Davenport and Flagstaff Smelters Superfund Site from 
the NPL.
    The 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 
or areas within 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 non-controversial and 
routine, EPA is taking it without prior publication of a notice of 
intent to partially delete. This action will be effective October 19, 
2004 unless EPA receives adverse comments by September 20, 2004 on this 
notice or the parallel notice of intent to partially 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 document, EPA will publish a timely withdrawal of this direct 
final notice of partial 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 
partial deletion process on the basis of the notice of intent to 
partially delete and the comments already received. There will be no 
additional opportunity to comment.
    Section II of this document explains the criteria for deleting, or 
partially deleting, sites from the NPL. Section III discusses 
procedures that EPA is using for this action. Section IV discusses the 
residential properties that EPA intends to delete from the Davenport 
and Flagstaff Smelters Superfund Site and demonstrates how they meet 
the partial deletion criteria. Section V discusses EPA's action to 
partially 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, or partially delete, a release from the NPL, 
EPA shall consider, in consultation with the State, whether any of the 
following criteria have been met:
    i. Section 300.425(e)(1)(i): Responsible parties or other persons 
have implemented all appropriate response actions required;
    ii. Section 300.425(e)(1)(ii): All appropriate Fund-financed 
(Hazardous Substance Superfund Response Trust Fund) response action 
under CERCLA has been implemented and no further response action by 
responsible parties is appropriate; or
    iii. Section 300.425(e)(1)(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 partially deleted from the NPL, if hazardous 
substances, pollutants or contaminants remain in place at the deleted 
portion of the site above levels that allow for unlimited use and 
unrestricted exposure, CERCLA Section 121(c), 42 U.S.C. 9621(c), 
requires that a subsequent review be conducted at least every five 
years after the initiation of the remedial action at the deleted 
portion of the 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 (or 
portion thereof) deleted from the NPL, the deleted area or site may be 
restored to the NPL without application of the hazard ranking system.

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III. Deletion Procedures

    The following procedures apply to the partial deletion:
    (1) The EPA consulted with the State of Utah on the partial 
deletion of the Site from the NPL prior to developing this direct final 
notice of partial deletion.
    (2) The State of Utah concurred with the partial 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 partially delete was 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 
partially delete the Site from the NPL.
    (4) The EPA placed copies of documents supporting the deletion of 
these properties in the Site information repositories identified above.
    (5) If adverse comments are received within the 30-day public 
comment period on this document, EPA will publish a timely notice of 
withdrawal of this direct final notice of partial 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 or partial deletion of a site from the NPL does not itself 
create, alter or revoke any individual's rights or obligations. 
Deletion or partial deletion of a site from the NPL does not in any way 
alter EPA's right to take enforcement actions as appropriate. 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 future 
response actions, should future conditions warrant such actions. 
Section 300.425 (e)(3) of the NCP governs partial deletion of a site 
from the NPL in the same manner.
    While EPA does not believe that any future response action within 
the residential properties included in this partial deletion will be 
needed, if future conditions warrant such action, the deleted areas 
will remain eligible for future response actions. Furthermore, this 
partial deletion does not alter the status of the remaining portions of 
the Davenport and Flagstaff Smelters Superfund Site, which is not 
proposed for deletion and remains on the NPL.

IV. Basis for Partial Site Deletion

    The following information provides EPA's rationale for deleting the 
portions of the Site referred to above from the NPL.

A. Site Location

    The Davenport and Flagstaff Smelters Superfund Site consists of 
properties located at the mouth of Little Cottonwood Canyon, which is 
located approximately 15 miles southeast of Salt Lake City, in Salt 
Lake County, Utah. The Davenport Smelter was located on the southern 
side of the canyon, near Little Cottonwood Canyon Road. The Flagstaff 
Smelter was located north of Little Cottonwood Creek. Surrounding these 
smelter sites are residential properties, which have been grouped into 
the Residential Operable Unit (ROU) of the Davenport and Flagstaff 
Smelters Superfund Site. The Site was divided into a Residential 
Operable Unit and a Non-Residential Operable Unit in order to more 
efficiently remediate the Site (see section IV B). The real property 
addresses of the 23 properties to be deleted are:

9767 South Little Cottonwood Place
9516 Glacier Lane
9600 Glacier Lane
3541 N. Little Cottonwood Canyon Road
3742 N. Little Cottonwood Canyon Road
3744 N. Little Cottonwood Canyon Road
3623 Little Cottonwood Lane
3641 Little Cottonwood Lane
3652 Little Cottonwood Lane
3661 Little Cottonwood Lane
3695 Little Cottonwood Lane
3698 Little Cottonwood Lane
3736 Little Cottonwood Lane
3895 Little Cottonwood Lane
9795 Little Cottonwood Lane
9815 Little Cottonwood Lane
9751 Little Cottonwood Lane
9752 Little Cottonwood Lane
9764 Little Cottonwood Lane
9751 Old Ranch Place
9759 Old Ranch Place
9715 Quail Ridge Road
9753 Quail Ridge Road

B. Site History

    The Davenport and Flagstaff Smelters Superfund Site includes the 
remains of three old smelters from the late 1800s. The Davenport 
Smelter was constructed on the south side of Little Cottonwood Creek as 
was the McKay Smelter. The Flagstaff Smelter was located less than a 
quarter mile to the north, near 9500 South Wasatch Boulevard, on the 
north side of Little Cottonwood Creek.
    Airborne particles from the smelter's smokestacks included lead and 
arsenic used in the smelting process. These contaminants were deposited 
in soils around the smelters. Slag, which is the waste product from the 
smelting process, was also left behind. The UDEQ and the Salt Lake 
County Health Department were alerted when a local gold prospector 
reported colored soils indicative of early smelting activities.
    In 1992, EPA conducted on-site soil analyses and found high levels 
of lead and arsenic. Based on the results of the 1992 sampling efforts, 
a Preliminary Assessment (PA) was performed in August 1992. Focused 
site inspections were performed for the Davenport and Flagstaff 
Smelters Site in 1994. Additional sampling activities were conducted in 
June 1994 near the former smelter sites in order to determine the 
distribution of the soil contamination dispersed away from the source 
area via air, surface water, or groundwater pathways. It was determined 
that the possibility of release was likely due to the proximity of 
surface water, proximity of the groundwater recharge area, and the 
commonly observed dispersion of windblown dust.
    A Site Characterization of the residential areas near the two 
smelters was performed in 1998. A total of 740 samples were collected 
from 32 residences near the locations of the two smelters. Surface and 
subsurface samples were collected in the general area of the former 
smelter locations in order to provide information regarding the source, 
nature, and extent of arsenic and lead contamination. Lead and arsenic 
contamination was found in surface and subsurface soils in the 
residential areas surrounding both of the smelter sites at 
concentrations well above risk-based screening levels established by 
the EPA. EPA proposed the Site for the National Priorities List in 
January 2000.
    There are two operable units at the Site. The Residential Operable 
Unit (ROU) addresses soil contamination on residential properties in 
the areas near the locations of the former smelters. About 500 people 
reside within these areas. The Non-residential Operable Unit (NROU) 
addresses soil contamination in the undeveloped and non-residential 
properties surrounding the smelter sites.
    The residential properties to be deleted are located within the 
ROU. The owners of 9767 South Little Cottonwood Place performed a 
voluntary removal of soil with levels of arsenic and lead above 
established action levels for the Site. After the removal was complete 
and documented, the owners received a no further action letter from 
EPA. The owners of the 22 other properties were issued no further 
action letters based on

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the results of the Site risk assessment and the characterization study.

C. Characterization of Risk

    A Baseline Risk Assessment (BLRA) was performed for the Davenport 
and Flagstaff Smelters Site by the EPA as part of the Site 
Characterization to determine if risks to human health associated with 
the contamination identified in previous investigations were sufficient 
to warrant remediation. The findings of the BLRA indicate that 
ingestion of arsenic and lead contaminated soils presents the primary 
health-threatening exposure pathway and presents an unacceptable risk 
to current and future residents of the Site. Speciation tests were 
performed on site soils to determine which forms of arsenic and lead 
were present. Certain types of heavy metal compounds are more available 
for uptake into the human body. Most of the lead in the contaminated 
soil appears to be in the form of lead carbonate, lead arsenate and 
metal bearing iron and manganese oxides. Most of the arsenic in the 
contaminated soil was found to be in the form of lead arsenate. Lead 
carbonate and lead arsenate are considered extremely bioavailable for 
uptake into the human body.
    After a thorough review of pertinent data, EPA has identified 10 
ug/dL of blood lead as the concentration level at which adverse health 
effects begin to occur. Furthermore, EPA has set a goal that there 
should be no more than a 5% chance that a child will have a blood lead 
concentration above that level. Likewise, the Centers for Disease 
Control (CDC) has established a guideline of 10 ug/dL of blood lead in 
preschool children. This is believed to prevent or minimize cognitive 
deficits associated with lead.
    The health effect of chief concern for exposure to arsenic is 
increased risk of cancer. Because cancer is a chronic disease 
associated with long-term exposure, the appropriate exposure unit is 
the area over which a resident is exposed over the course of many 
years. EPA typically considers risks below one in one million to be so 
small as to be negligible and risks above 100 in one million to be 
sufficiently large that some sort of action or intervention is usually 
needed. Average risk estimates associated with arsenic contaminated 
soils in the ROU ranged from 2 to 10 in one million, and reasonable 
maximum exposure (RME) risk estimates range from 20 to 100 in one 
million. A joint risk management decision was made by UDEQ and EPA to 
use the level for 100 cancers in one million as the action level for 
arsenic at the Site.
    Ecological risk was not specifically evaluated for the ROU due to 
the residential setting. In such a setting, risk to residents generally 
exceeds any ecological risks, and as such, any remediation required to 
abate human health risk will abate any ecological risks. Ecological 
risks for the entire site will be evaluated in conjunction with 
response actions at the NROU.

D. Remedial Investigation and Feasibility Study (RI/FS)

    A Site Characterization Report was completed in February 2000 and 
the Remedial Investigation (RI) was completed in October 2001. These 
studies were conducted to further characterize contaminated soil at 
residential properties surrounding the two smelters. The Contaminants 
of Concern (COCs) identified by UDEQ and EPA for the ROU are arsenic 
and lead. Other heavy metals are present at elevated levels in site 
soils; however, the levels of these metals were not considered harmful 
to human health. Health based clean up goals of 600 mg/kg of lead and 
126 mg/kg of arsenic have been established for the Site. Toxicity 
Characteristic Leaching Procedure (TCLP) analysis was performed to 
determine hazardous characteristics of contaminated soil. The results 
of the TCLP analysis indicated high levels of lead and arsenic in the 
soil, and that the lead in the soil was fairly leachable. It was 
estimated that 80% of the soil may constitute hazardous waste and 
require treatment before disposal. It is unlikely that ground water has 
been impacted by the contamination and steep slopes pose minimal risk 
of exposure and will not be cleaned up. Twenty properties contain known 
contamination that requires cleanup.
    A Focused Feasibility Study evaluating possible remedies for these 
properties was completed in December 2001. Three remedial alternatives 
were selected for evaluation: Alternative 1: No Action; Alternative 2: 
Excavation and disposal of all contaminated soil (Cost = $11,950,000); 
Alternative 3: Excavation of contaminated soil under non-native 
vegetation and soil cover around native vegetation (Cost = $9,717,000).

E. Record of Decision Findings

    The selected remedy agreed upon by the EPA and UDEQ for the 
Residential Operable Unit was Alternative 2, excavation and disposal of 
all contaminated soil. This decision was made after issuance of the 
Proposed Plan, which describes the remedial alternatives considered for 
the Site and the rationale for choosing the selected remedy, and review 
of the public comments submitted on the Proposed Plan. Soils are to be 
excavated to a depth of 18 inches for all properties recommended for 
remediation that have soil-lead levels exceeding 600 mg/kg and arsenic 
levels exceeding 126 mg/kg. Properties with principle threat wastes, 
which are contaminants that are either highly toxic or highly mobile, 
may be excavated to depths greater than 18 inches. Hand excavation will 
be conducted around affected areas of native vegetation. Excavated 
soils will be disposed at an appropriate disposal facility. Following 
excavation, clean backfill and topsoil will be imported. Non-native 
vegetation that is removed will also be replanted. The interiors of all 
buildings located on remediated properties will be cleaned to remove 
dust, and institutional controls will be developed and implemented for 
any contamination left in place on properties recommended for 
remediation.

 F. Response Actions

    Twenty residential properties require soil remediation. Four of the 
twenty properties, due to highly elevated concentrations of lead and 
arsenic in soil, are being addressed pursuant to an action memorandum 
for time critical removals, dated April 22, 2004. The remaining 16 
properties will be addressed either pursuant to the April 2004 action 
memorandum or pursuant to the September 2002 Record of Decision. The 
cleanup and remediation standards are identical for both response 
actions.
    No waste above action levels was identified on the 23 residential 
properties proposed for deletion from the Site, with the exception of 
the 9767 South Little Cottonwood Place property. All soils 
contamination above action levels was removed from this property, 
allowing unlimited use and unrestricted exposure. No five-year reviews 
will be required for these 23 properties since the properties are 
available for unlimited use and unrestricted exposure.

G. Cleanup Standards

    Cleanup standards for the ROU were arrived at through the use of 
health-based goals. Based on the results of the BLRA, a risk management 
decision made by the UDEQ and EPA established action levels of 600 mg/
kg for lead and 126 mg/kg for arsenic in residential surface soils for 
properties within the ROU. The 600 mg/kg action level for lead was 
based on a target such that no child under the age of seven has more 
than a 5 percent chance of exceeding a

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blood lead concentration of 10 micrograms of lead per deciliter of 
blood. The 126 mg/kg action level for arsenic was derived from a target 
cancer risk level of 10-\4\.

H. Community Involvement

    The RI and FFS reports and the Proposed Plan for the Davenport and 
Flagstaff Smelters Superfund Site were made available to the public 
June 10, 2002. A public comment period was held from June 10, 2002 to 
August 22, 2002. In addition, a public meeting was held on June 20, 
2002 to present the Proposed Plan. A response to the comments received 
on the Proposed Plan is included in the Responsiveness Summary, which 
is part of the Record of Decision (ROD).
    Public participation activities have been satisfied as required in 
Sections 113(k), and 117 of CERCLA, 42 U.S.C. 9613(k) and 9617. 
Documents in the deletion docket, which EPA relied on for 
recommendation of the partial deletion from the NPL, are available to 
the public in the information repositories.

V. Partial Deletion Action

    The EPA, with concurrence of the State of Utah, has determined that 
all appropriate responses under CERCLA for the referenced properties 
have been completed and that no further response actions under CERCLA 
are necessary. The properties in this partial deletion either did not 
require remediation or all soil containing identified contaminants was 
removed. Therefore, EPA is deleting these 23 properties from the NPL.
    Because EPA considers this action to be non-controversial and 
routine, EPA is taking it without prior publication. This action will 
be effective October 19, 2004 unless EPA receives adverse comments by 
September 20, 2004 on a 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 
partial deletion before the effective date of the deletion and it will 
not take effect. EPA will simultaneously prepare a response to comments 
and continue with the partial deletion process on the basis of the 
notice of intent to partially 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 substance, Intergovernmental relations, 
Penalties, Reporting and recordkeeping requirements, Superfund, Water 
pollution control, Water supply.

    Dated: July 28, 2004.
Robert E. Roberts,
Regional Administrator,Region 8.

0
For the reasons set out in this document, 40 CFR part 300 is amended as 
follows:

PART 300--[AMENDED]

0
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]

0
2. Table 1 of Appendix B to Part 300 is amended by revising the entry 
under Utah for ``Davenport and Flagstaff Smelters'' to read as follows:

Appendix B to Part 300--National Priorities List

                                       Table 1.--General Superfund Section
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                State                         Site name               City/county               Notes \a\
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
UT...................................  Davenport and Flagstaff  Sandy City.............  P
                                        Smelters.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\a\ * * *
P = sites with partial deletion(s).

[FR Doc. 04-18966 Filed 8-19-04; 8:45 am]
BILLING CODE 6560-50-P