[Federal Register Volume 71, Number 121 (Friday, June 23, 2006)]
[Rules and Regulations]
[Pages 36015-36019]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-5568]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[FRL-8186-5]


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

AGENCY: Environmental Protection Agency.

ACTION: Direct final notice of deletion of the Brio Refining, Inc. 
Superfund Site from the National Priorities List.

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SUMMARY: The United States Environmental Protection Agency (EPA) Region 
6 is publishing a direct final notice of deletion of the Brio Refining, 
Inc. Superfund Site (Site), located in Friendswood, Texas, from the 
National Priorities List (NPL). 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 Substances Pollution 
Contingency Plan (NCP). This direct final notice of deletion is being 
published by EPA with the concurrence of the State of Texas, through 
the Texas Commission on Environmental Quality (TCEQ), because EPA has 
determined that all appropriate response actions under CERCLA have been 
completed and, therefore, further remedial action pursuant to CERCLA is 
not appropriate.

DATES: This direct final notice of deletion will be effective August 
22, 2006 unless EPA receives adverse comments by July 24, 2006. If 
adverse comments are received, EPA will publish a timely withdrawal of 
the

[[Page 36016]]

direct final notice of deletion in the Federal Register informing the 
public that the deletion will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
SFUND-1989-0008, by one of the following methods:
    http://www.regulations.gov: Follow the on-line instruction for 
submitting comments.
    E-mail: mail to [email protected].
    Fax: 214-665-6660.
    Mail: Donn Walters, Community Outreach Team, U.S. EPA Region 6 
(6SF-PO), 1445 Ross Avenue, Dallas, TX 75202-2733, (214) 665-6483 or 1-
800-533-3508.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-SFUND-
1989-0008. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through or e-mail. The http://www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an e-mail comment 
directly to EPA without going through http://www.regulations.gov, your 
e-mail address be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the information 
repositories.
    Information Repositories: Comprehensive information about the Site 
is available for viewing and copying during central standard time at 
the Site information repositories located at: U.S. EPA Region 6 
Library, 7th Floor, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-
2733, (214) 665-6424, Monday through Friday 9 a.m. to 12 p.m. and 1 
p.m. to 4 p.m.; San Jacinto College, South Campus Library, 13735 Beamer 
Road, Houston, Texas, 77089, (281) 992-3416, Monday through Thursday 8 
a.m. to 9 p.m.; Friday 8 a.m. to 3 p.m.; Saturday 10 a.m. to 1 p.m.; 
Texas Commission on Environmental Quality (TCEQ), Central File Room 
Customer Service Center, Building E, 12100 Park 35 Circle, Austin, 
Texas, 78753, (512) 239-2900, Monday through Friday 8 a.m. to 5 p.m.

FOR FURTHER INFORMATION CONTACT: John C. Meyer, Remedial Project 
Manager (RPM), U.S. EPA Region 6 (6SF-LP), 1445 Ross Avenue, Dallas, TX 
75202-2733, (214) 665-6742 or 1-800-533-3508 ([email protected]).

SUPPLEMENTARY INFORMATION:

Table of Contents

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

I. Introduction

    The EPA Region 6 office is publishing this direct final notice of 
deletion of the Brio Refining, Inc. 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 describes 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 August 22, 2006 unless 
EPA receives adverse comments by July 24, 2006 on this document. 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 deletion before the effective date of the deletion and 
the deletion will not take effect. The 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 Brio Refining, Inc., 
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 shall consider, in 
consultation with the State, 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 Trust Fund) responses 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 measure 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. 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) The EPA consulted with TCEQ on the deletion of the Site from 
the NPL prior to developing this direct final notice of deletion.
    (2) TCEQ concurred with deletion of the Site from the NPL.

[[Page 36017]]

    (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) The 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 document, 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. 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.

IV. Basis for Site Deletion

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

Site Location

    The Brio Site is located almost 20 miles south of Houston, Texas, 
and occupies approximately 58 acres. The site is divided by Dixie Farm 
Road, with Brio North being historically used for storage purposes and 
Brio South being primarily used for processing activities. A 
neighboring residential subdivision (Southbend, now abandoned) is 
located along and north of the northern boundary of Brio North. Mud 
Gully, a flood control ditch and local tributary of Clear Creek, runs 
along the western boundary of the Site.

Site History

    Processing activities began at the Site in the early 1950's and 
consisted of reclamation of petrochemicals from various source 
materials, most of which were residues, tank bottoms, and tars of other 
processes performed at off-site locations. Most of the feedback 
materials for processing at Brio were stored in on-site pits, many of 
which were located on Brio North. All of the pits were closed during 
site operations, which ceased in December 1982.

Remedial Investigation and Feasibility Study (RI/FS)

    In 1985, EPA entered into an Administrative Order on Consent with 
the Brio Site Task Force (BSTF) to perform the RI/FS. The investigation 
focused on five predominant media: Soils in and around the closed 
impoundments, groundwater, above ground tanks, the waste water 
treatment system, and sewage sludge.
    The investigations found that the majority of the contamination at 
the site is found within the location of the former storage pit areas. 
The pits were constructed within the uppermost geologic units 
designated the Upper Clay. This unit occurs across the entire site and 
ranges in depth from 14 to 32 feet. The RI/FS estimated the volume of 
contaminated soils associated with the former pits at approximately 
200,000 cubic yards.
    The three primary affected media at the site include ground water, 
surface soils, and subsurface soils. The principal contaminants of 
concern at the site are organic compounds and chlorinated solvent 
compounds. The contaminants include the following: 1,1,2-
trichloroethane; 1,2-dichloroethane; 1,2-dichloroethene; 1,1-
dichloroethene; 1,1-dichloroethane; vinyl chloride; bis-(2-chloroethyl) 
ether; and phenanthrene.
    The risk assessment concluded that the site potentially poses four 
major risks to human health and the environment: Ingestion of on-site 
soils, direct contact with on-site soils, inhalation of dust from the 
site, and ingestion of shallow ground water from the site.

Record of Decision

    Following the site investigations, EPA issued a Record of Decision 
(ROD) on March 31, 1988, that selected on-site incineration of pit 
residuals, removal of surface contamination, channel improvements to 
Mud Gully, demobilization of remaining process equipment and removal of 
debris on the site, removal of dense non-aqueous phase liquids (DNAPL) 
and pump and treat for groundwater in the numerous sand channel zone 
(NSCZ). The ROD addressed all the threats at the site as a single 
operable unit, including ground water contamination. A consent decree 
was entered in April 1991 between EPA and the BSTF for implementation 
of the ROD. A remedial design was performed by the BSTF and approved by 
EPA in July 1993. Demolition of the majority of the remaining process 
equipment was completed prior to mobilization of the incinerator.
    A rotary kiln incinerator and support equipment were mobilized to 
the site following the demolition work. Temporary enclosures were 
erected over the pits requiring remediation in order to contain 
emissions during excavation. The incinerator began clean burn 
operations with imported material, and excavation began at Pit R on 
Brio South for shakedown operations and to stockpile material for the 
trial burn. Emission problems during excavation led to a ``stop work'' 
order until appropriate emission control equipment could be installed. 
Before additional controls could be installed, the BSTF submitted a 
force majeure claim which resulted in the decision by EPA to allow the 
dismantling of the incinerator. The incinerator and support equipment 
were demobilized by December 1994.
    A focused feasibility study was initiated to evaluate alternatives 
to the incineration remedy selected in 1988. The EPA signed an Amended 
Record of Decision on July 2, 1997, selecting containment as the 
preferred alternative. The elements of the containment remedy included 
a vertical barrier wall, site cover, groundwater flow control and 
institutional controls.

Response Actions

    In June 1989, an Administrative order on Consent was signed with 
the BSTF, to begin dismantlement of the process equipment on the site. 
The facility dismantlement was completed in December 1989. Material 
present in the process equipment and tanks was consolidated into 
remaining tanks. The process equipment and tanks were decontaminated 
and sent to an off-site smelter for reclamation.
    A consent decree with a scope of work to implement the remainder of 
the ROD was entered by the Federal district court on April 4, 1991. A 
remedial design was completed in 1993 that addressed installation and 
operation of an incinerator to treat contaminated soils, sludges, and 
liquids above the action levels specified in the ROD.
    In May 1993, surface water discharges were found to be occurring in 
Mud Gully. Characterization of the water and sediments in Mud Gully and 
Clear Creek found that chlorinated volatile organics were discharging 
from the Brio site in the area of Pit B in order to

[[Page 36018]]

control the discharges of contaminated ground water to Mud Gully.
    In December 1993, site preparation work for the mobilization of the 
incinerator began. This work included removal of the majority of the 
remaining tanks from the initial dismantling operation. The tanks were 
cleaned and sent off-site for smelting. A rotary kiln incinerator and 
support equipment were mobilized to the site following the demolition 
work. The incinerator was demobilized by December 1994 following EPA's 
decision to evaluate other alternatives for the Site.
    During the time between the demobilization of the incinerator and 
the implementation of the containment alternative in the Amended ROD, 
several elements of construction continued. The elements included: 
Initiation and operation of DNAPL recovery; ground water extraction and 
treatment to prevent off-site migration to Mud Gully; removal of 
storage tanks and drums remaining at the site and off-site disposal of 
the contents; and closure of the waste water treatment system.
    Construction of the remedial action pursuant to the Amended ROD 
began in July 2000 and was implemented in phases. Approximately 5900 
lineal feet of slurry wall was constructed around the perimeter of the 
site from September to December 2000. The slurry wall was constructed 
by excavating a 30-inch wide trench to a depth that seals the wall into 
a low-permeable natural clay layer termed ``Middle Clay Unit''(MCU). 
The depth of the slurry wall ranges from approximately 35 to 50 feet. 
Once the excavation achieved the proper depth, a backfill material 
(consisting of thoroughly mixed native soils and fresh slurry) was 
placed in the excavation.
    The sheet pile barrier wall was installed from July 2001 to 
December 2001. The wall is approximately 1,781 feet long and varies in 
depth from 35 to 50 feet below ground surface. The wall was installed 
to designed depths into the low-permeable natural clay layer and in 
conjunction with the slurry wall completed the vertical barrier wall 
component of the Amended ROD.
    The cover system was divided into two major components: Brio North 
and Brio south. The two areas are divided by Dixie Farm Road and 
separate borrow pit areas were developed in order to minimize truck 
traffic over the road. The Brio South cover was initiated first due to 
its smaller size. The Brio South cover system was constructed from May 
2001 to February 2002. An additional compacted clay layer was extended 
over a segment of the adjacent Dixie Oil Processors (DOP) South site to 
provide controlled surface water runoff. The Brio North cover system 
was constructed from December 2001 to September 2003.
    The improvements to Mud Gully were done under the jurisdiction of 
the Harris County Flood Control District and were completed in June 
2003. The improvements included realignment of the gully, lining with 
articulated concrete blocks, and a topsoil cover with vegetation.
    A ground water control system was installed that included a water 
treatment plant, extraction wells, and extensive piping and utilities. 
The system includes 17 extraction wells to control the hydraulic 
gradient and 21 monitoring wells to determine compliance with the 
performance standards.
    A pre-certification inspection was conducted by EPA on March 11, 
2004, to determine if all the elements of the remedial action met the 
construction requirements of the Amended ROD and the remedial design. 
EPA prepared a preliminary closeout report to document the attainment 
of construction completion and issued the report on April 28, 2004. A 
final inspection was conducted on April 20, 2006, and EPA found that 
all elements fo the remedy had been successfully constructed and were 
operating in accordance with approved plans.

Operation and Maintenance (O&M)

    In March 2004, the BSTF submitted a Monitoring, Operation and 
Maintenance (MO&M) Plan for the site. EPA approved the plan on May 20, 
2004. The purpose of the MO&M Plan is to document procedures to be used 
to assess the long-term success of the site remedy while minimizing 
adverse natural or man-made impacts on the site. The plan requires (i) 
operation of the groundwater recovery and treatment system, (ii) 
operation of the gas collection and recovery system, (iii) monitoring 
and maintenance of the cover system, and (iv) monitoring of the 
environmental media (soil, ground water, and air). The plan includes an 
institutional control plan that provides for deed restrictions on all 
properties within the site boundary where property owners could be 
located, and deed notices on properties where the land owner was 
recalcitrant. The requirements of the institutional control plan have 
been completed through a Grant of Environmental Deed Restriction and 
Right of Access, which was recorded August 30, 2005, in the Harris 
County real property records.

Five-Year Review

    Consistent with Section 121(c) of the CERCLA and requirements of 
the OSWER Directive 9355.7-03B-P (``Comprehensive Five-Year Review 
Guidance'', June 2001), a five-year review is required at this Site. 
The Directive requires EPA to conduct statutory five-year reviews at 
sites where, upon attainment of ROD cleanup levels, hazardous 
substances remaining within restricted areas onsite do not allow 
unlimited use of the entire site.
    Since hazardous substances remain onsite, this Site is subject to 
five-year reviews to ensure the continued protectiveness of the remedy. 
Based on the five-year results, EPA will determine whether human health 
and the environment continue to be adequately protected by the 
implemented remedy. Five-year reviews were completed on January 8, 
1998, and May 13, 2003. The reviews found that the remedy remains 
protective of human health and the environment.

Community Involvement

    Public participation activities have been satisfied as required in 
CERCLA Section 113(k), 42 U.S.C. 9613(k), and CERCLA Section 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

    The EPA, with concurrence of the State of Texas, has determined 
that all appropriate responses under CERCLA have been completed, and 
that no further response actions, under CERCLA, other than O&M and 
five-year reviews, are necessary. 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. This action will 
be effective August 22, 2006 unless EPA receives adverse comments by 
July 24, 2006. 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. The EPA 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. There 
will be no additional opportunity to comment.

List of Subjects in 40 CFR Part 300

    Environmental protection, Air pollution control, Chemicals, 
Hazardous

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

    Dated: May 25, 2006.
Richard E. Greene,
Regional Administrator, Region 6.

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 under Texas (``TX'') by 
removing the entry for ``Brio Refining, Inc.''.

[FR Doc. 06-5568 Filed 6-22-06; 8:45 am]
BILLING CODE 6560-50-M