[Federal Register Volume 70, Number 189 (Friday, September 30, 2005)]
[Rules and Regulations]
[Pages 57155-57158]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19613]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[FRL-7977-6]


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

AGENCY: Environmental Protection Agency.

ACTION: Direct Final Deletion of the Batavia Landfill Superfund Site 
from the National Priorities List.

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SUMMARY: The Environmental Protection Agency (EPA), Region 2, announces 
the deletion of the Batavia Landfill Superfund Site (Site), located in 
the Town of Batavia, Genesee County, New York, from the National 
Priorities List (NPL) and will consider 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

[[Page 57156]]

pursuant to section 105 of the Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA) of 1980, as amended. This 
Direct Final Notice of Deletion is being published by EPA with the 
concurrence of the State of New York, through the Department of 
Environmental Conservation (NYSDEC). EPA and NYSDEC have determined 
that potentially responsible parties have implemented all appropriate 
response actions required. Moreover, EPA and NYSDEC have determined 
that the Site poses no significant threat to public health or the 
environment.

DATES: This direct final deletion will be effective November 29, 2005 
unless EPA receives significant adverse comments by October 31, 2005. 
If significant adverse comments are received, EPA will publish a timely 
withdrawal of this direct final deletion in the Federal Register, 
informing the public that the deletion will not take effect.

ADDRESSES: Comments may be mailed to: Michael Walters, Remedial Project 
Manager, Emergency and Remedial Response Division, U.S. Environmental 
Protection Agency, Region 2, 290 Broadway, 20th Floor, New York, New 
York 10007-1866.
    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 
2, Superfund Records Center, 290 Broadway, Room 1828, New York, New 
York 10007-1866, (212) 637-4308,
    Hours: 9 a.m. to 5 p.m., Monday through Friday;

Batavia Town Hall, 3833 West Main Street Road, Batavia, New York 14020, 
Telephone Number (585) 343-1729, Hours: 9 a.m. to 8 p.m., Monday 
through Friday.
Richmond Public Library, 19 Ross Street, Batavia, New York 14020, Mon., 
Tues., Thurs. 9 a.m. to 9 p.m., Wed. 9 a.m. to 6 p.m., Fri. 9 a.m. to 5 
p.m. Closed on Saturday and Sunday, Telephone (585) 343-9550.

FOR FURTHER INFORMATION CONTACT: Michael Walters, Remedial Project 
Manager, U.S. EPA Region 2, 290 Broadway, 20th Floor, New York, New 
York 10007-1866, (212) 637-4279; Fax Number (212) 637-4284; E-mail 
address: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

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

I. Introduction

    EPA Region 2 announces the deletion of the Batavia Landfill 
Superfund Site from the NPL. The EPA maintains the NPL as the list of 
those sites that appear to present a significant risk to public health, 
welfare, or the environment. As described in 300.425(e)(3) of the NCP, 
sites deleted from the NPL remain eligible for remedial actions if 
conditions at the deleted site warrant such action.
    EPA considers this action to be noncontroversial and routine, and 
therefore, EPA is taking it without prior publication of a Notice of 
Intent to Delete. This action will be effective November 29, 2005 
unless EPA receives significant adverse comments by October 31, 2005 on 
this action or the parallel Notice of Intent to Delete published in the 
Notice section of today's Federal Register. If significant adverse 
comments are received within the 30-day public comment period, EPA 
Region 2 will publish a timely withdrawal of this Direct Final Deletion 
before the effective date of the deletion and the deletion will not 
take effect. EPA will, if 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 explains the criteria for deleting sites from the NPL. 
Section III discusses procedures that EPA is using for this action. 
Section IV discusses the Batavia Landfill Superfund Site and 
demonstrates how it meets the deletion criteria.

II. NPL Deletion Criteria

    Section 300.425(e) of the NCP provides that sites may be deleted 
from the NPL where no further response is appropriate. In making this 
determination, EPA, in consultation with the State, shall consider 
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, 
implementing 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 section 
121(c), 42 U.S.C. 9261(c) requires that a subsequent review of the site 
be conducted at least every five years after initiation of the remedial 
action at the deleted site to ensure that the action remains protective 
of human health and the environment. If new information becomes 
available which indicates a need for further action, EPA may initiate 
remedial actions. Based upon Section 300.425(e)(3) of the NCP, 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. EPA proposes to delete this Site because 
potentially responsible parties have implemented all appropriate 
response actions.

III. Deletion Procedures

    The following procedures were used for the intended deletion of 
this Site:
    (1) The Site was listed on the NPL in September 1983.
    (2) In August 1984, EPA entered into an Administrative Order on 
Consent with NL Industries for the performance of the Remedial 
Investigation/Feasibility Study (RI/FS) for the Site.
    (3) The RI Report was completed in 1992, the FS Report in 1994.
    (4) On March 31, 1993, EPA signed a Record of Decision (ROD) 
selecting an interim remedy for the Site which required the extension 
of the municipal water supply system to residents affected or 
potentially affected by the Site.
    (5) On September 21, 1993, EPA issued a Unilateral Administrative 
Order to the Potentially Responsible Parties (PRPs) directing them to 
implement the interim remedy.
    (6) On January 30, 1996, EPA formally approved the completion of 
the extension of the municipal waterline system and connection of the 
homes.
    (7) On June 6, 1995, EPA issued a ROD which selected a final remedy 
for the Site which included engineered and institutional controls.
    (8) The first Five-Year Review was signed by EPA on June 30, 2000.
    (9) On July 10, 2003, EPA determined that the engineered controls 
had been constructed. A final Remedial Action Report was approved on 
September 26, 2003.
    (10) In June 2005, institutional controls were recorded with the 
Genesee County Register of Deeds.
    (11) The EPA consulted with the NYSDEC on the deletion of this Site 
and NYSDEC concurred with the deletion of

[[Page 57157]]

the Site from the NPL on September 13, 2005.
    (12) Concurrently with the publication of this Direct Final 
Deletion, a parallel Notice of Intent to Delete has been published 
today in the Notice section of the Federal Register. Notices are also 
being published in local newspapers and appropriate notice is being 
provided to federal, state, and local government officials and other 
interested parties.
    (13) The EPA placed copies of documents supporting the deletion in 
the Site information repositories identified above.
    If no significant adverse comments are received, the Site will be 
deleted. If significant adverse comments are received within the 30-day 
public comment period on this action, EPA will publish a timely notice 
of withdrawal of this deletion before its effective date. EPA will 
prepare, if appropriate, 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 appropriate 
enforcement actions.

IV. Basis for Site Deletion

    The following summary provides a brief description and actions 
taken at the Batavia Landfill Superfund Site which provides the 
Agency's rationale for recommending deletion of the Site from the NPL.
    The Batavia Landfill Superfund Site (the Site or the Landfill) is 
located in the Town of Batavia, Genesee County, approximately three 
miles west-northwest of the City of Batavia, New York. The Site is 
approximately 35 acres in area and is bounded to the north and portions 
of the east by the Galloway Swamp, to the east by the Town's former 
Sanitary Landfill (now closed), to the south by Harloff Road (the New 
York State Thruway is approximately 200 feet south of the Landfill), 
and to the west by vacant property. The Town of Batavia owns the Site 
and the adjoining sanitary landfill to the east.
    The Landfill accepted wastes, including industrial wastes, for on-
site disposal from 1968 until 1980, when the NYSDEC declared the 
property an open dump based on noncompliance with surface water 
criteria (40 CFR Part 257). Poor housekeeping practices and the 
disposal of industrial and hazardous wastes resulted in the closure of 
the Landfill.
    During the active years of waste management approximately 800,000 
cubic yards of industrial wastes have been disposited at the Site. In 
December 1982, Fred C. Hart Associates, under contract with EPA, 
conducted a groundwater sampling survey in the area of the Site. 
Sampling data from on-site monitoring wells revealed the presence of 
hazardous organic and inorganic chemical constituents (including 
methylene chloride, 1,1 dichloroethane, and barium) which exceeded New 
York State and Federal drinking water standards.
    On December 20, 1982, the Site was proposed for inclusion on the 
NPL and was added to the NPL by publication in the Federal Register on 
September 8, 1983 (48 FR 40658).
    On August 9, 1984, EPA entered into an Administrative Order on 
Consent (AOC) with NL Industries, a Potentially Responsible Party 
(PRP), for the performance of a RI/FS at the Site.
    A residential well program conducted by the New York State 
Department of Health in 1992 at homes in close proximity to the Site 
revealed levels of contaminants in the wells above the Federal Maximum 
Contaminant Levels. A subsequent risk assessment performed by EPA 
revealed that the continued ingestion of the groundwater posed a 
significant endangerment to the area residents.
    On March 31, 1993, EPA signed a Record of Decision (ROD) selecting 
an interim remedy for the Site which required the extension of the 
municipal water supply system to residents affected or potentially 
affected by the Site.
    On September 21, 1993, EPA issued a Unilateral Administrative Order 
to the PRPs directing them to implement the interim remedy outlined in 
the 1993 ROD. On January 30, 1996, EPA approved the completion of the 
replacement and/or retrofitting of residential groundwater well piping 
systems with new piping and appurtenances connecting each home to the 
waterline.
    On June 6, 1995, EPA selected the final remedy: (a) The excavation 
of approximately 50,000 cubic yards of contaminated soil from the 
northern area of the Landfill and consolidation of these materials 
under a landfill cap in the southern area of the Landfill; (b) 
excavation of approximately 150 drums from the southern area of the 
Landfill and their off-site treatment and disposal; (c) construction of 
a cap over the southern region of the Landfill; (d) the restoration of 
the surrounding wetlands at the Landfill impacted by past waste 
disposal activities; and, (e) establishment of institutional controls 
to preclude certain uses of the property.
    In September 1995, EPA issued an AOC for the performance of the 
remedial design (RD) for the site remedy. The RD was completed in 
December 1999. The site remedy was modified on September 16, 1999 in an 
Explanation of Significant Difference (ESD) which called for the 
excavation and removal of 126,000 cubic yards of contaminated soils 
from the northern and central areas of the Site, an increase of 76,000 
cubic yards of wastes from the previous estimate.
    The final landfill cap, constructed in the southern area of the 
Site, covers an approximate area of 15.5 acres and is consistent with 
New York State hazardous waste management regulations. Approximately 
210,000 cubic yards of excavated wastes from the northern, central and 
wetland areas of the Site were consolidated under the southern area 
landfill cap. The landfill cap was constructed with 18 inches of 
compacted clay, a drainage and leachate collection system, a gas 
venting system and a 24-inch barrier protection layer of soil and 6 
inches of topsoil suitable to maintain vegetative growth.
    A perimeter chain-linked fence around the Site, including three 
access gates, has been installed. Approximately seven acres of waste-
impacted wetlands (including some areas of standing water which support 
a submergent vegetative community) were remediated and restored during 
the conclusion of remedial construction activities in September and 
October 2002.
    Institutional controls have been put in place at the Site to 
restrict future activities at the Site that may negatively impact the 
effectiveness of the implemented site remedy or threaten human health 
and the environment. These site restrictions include a ban on the 
construction of drinking water wells and new building structures that 
may impede the effectiveness of the landfill cap systems.
    Implementation of the interim and final remedies have utilized 
permanent solutions in the effective short-term and long-term abatement 
of the human health and ecological risks posed by the Site. The final 
remedy is reducing the toxicity, mobility, and volume of contaminants 
by reducing infiltration through the landfilled wastes and collecting 
and treating the leachate. In addition, the final remedy also involved 
the remediation and restoration of seven acres of wetlands at the Site.
    EPA has determined that all appropriate response measures under the 
Comprehensive Environmental Response, Compensation, and Liability

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Act have been implemented and that no further cleanup is required. The 
Site poses no significant threat to public health or the environment. 
Consequently, this Site no longer needs to be listed on the NPL; 
however, this decision does not preclude future actions under Superfund 
should they become necessary.
    A Remedial Action Work Plan (RAWP) for the implementation of long-
term operation and maintenance for the landfill cap systems is in 
place. The Town of Batavia is required to manage the required operation 
and maintenance (O&M) activities in accordance with the RAWP. Required 
O&M activities include the long-term implementation of a semi-annual 
groundwater monitoring program, periodic Site inspections, and regular 
landfill cap maintenance activities. The inspections are required to 
ensure and maintain the operational effectiveness and structural 
integrity of the Site remedy to protect human health and the 
environment.
    Institutional controls consisting of an easement and deed 
restriction limiting access to the Site and preventing the use of 
contaminated water as a drinking source were filed with the Genesee 
County Register of Deeds on June 10, 2005.
    Public participation activities for this Site have been satisfied 
as required by CERCLA Section 113(k), 42 U.S.C. 9613(k), and, CERCLA 
Section 117,42 U.S.C. 9617. The RI/FS and the 1993 and 1995 RODs were 
both subject to the public review process. All documents and 
information which EPA relied on or considered in reaching the 
conclusion that this Site can be deleted from the NPL are available for 
the public to review at the information repositories.
    The final remedy implemented at this Site results in contaminants 
remaining at the Site above levels that allow for unlimited use and 
unrestricted exposure. In accordance with CERCLA Section 121(c), EPA 
and/or NYSDEC will conduct a review of this remedy no less often than 
every five years. A first Five-Year Review Report for the Site was 
completed in June 2000. EPA has determined that the remedies protect 
public health and the environment and that they function as intended by 
the decision documents. All construction activities for the Site 
required by the final ROD were completed in July 2003. A second Five-
Year Review was completed in September 2005.
    One of the three criteria for site deletion specifies that a site 
may be deleted from the NPL if ``responsible parties or others parties 
have implemented all appropriate response actions required.'' [ 40 CFR 
300.425(e)(1) (i)]. EPA, with concurrence of the State of New York, 
through the NYSDEC, believes that this criterion for deletion has been 
met and therefore, EPA is deleting this Site from the NPL.

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: September 21, 2005.
Alan J. Steinberg,
Regional Administrator, U.S. EPA Region II.

0
For the reasons set out in the preamble Part 300 Title 40 of Chapter I 
of the Code of Federal Regulations is amended as follows:

PART 300--[AMENDED]

0
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 under New York (NY) by 
removing the site name ``Batavia Landfill'' and the corresponding city 
designation ``Town of Batavia.''

[FR Doc. 05-19613 Filed 9-29-05; 8:45 am]
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