[Federal Register Volume 72, Number 156 (Tuesday, August 14, 2007)]
[Rules and Regulations]
[Pages 45381-45384]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-15891]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[EPA-HQ-SFUND-1986-0005; FRL-8454-1]


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

AGENCY: Environmental Protection Agency.

ACTION: Direct final notice of deletion of the Bailey Waste Disposal 
Superfund Site from the National Priorities List.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) Region 6 is 
publishing a direct final notice of deletion of the Bailey Waste 
Disposal Superfund Site (Site), located near Bridge City, 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 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 October 
15, 2007 unless EPA receives adverse comments by September 13, 2007. If 
adverse comments are received, EPA will publish a timely withdrawal of 
the 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-1986-0005, by one of the following methods:
    http://www.regulations.gov (Follow the on-line instructions for 
submitting comments).
    E-mail: [email protected].
    Fax: 214-665-6660.
    Mail: Donn Walters, Community Involvement, U.S. EPA Region 6 (6SF-
TS), 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-
1986-0005. EPA 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, 
disclosure of which is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected. 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 will automatically be 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 
disclosure of which 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 at 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 Online Library 
System at http://www.epa.gov/natlibra/ols.htm; U.S. EPA Region 6, 1445 
Ross Avenue, Suite 700, Dallas, Texas 75202-2733, (214) 665-6617, by 
appointment only Monday through Friday 9 a.m. to 12 p.m. and 1 p.m. to 
4 p.m.; Marion and Ed Hughes Public Library, 2712 Nederland Avenue, 
Nederland, Texas 77627, (409) 722-1255, Monday 1 p.m. to 9 p.m., 
Tuesday through Friday 10 a.m. to 6 p.m. and closed Saturday-Sunday; 
City of Orange Public Library, 220 N. 5th Street, Orange, Texas 77630, 
(409) 883-1086, Saturday and Monday 10 am to 2 p.m., Tuesday 12 p.m. to 
8 p.m., Wednesday through Friday 10 a.m. to 5 p.m. and closed Sunday; 
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: Scott Harris, PhD, Remedial Project 
Manager (RPM), U.S. EPA Region 6 (6SF-RA), 1445 Ross Avenue, Dallas, TX 
75202-2733, (214) 665-7114 or 1-800-533-3508 or [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 Bailey Waste Disposal 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 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 October 15, 2007 unless 
EPA receives adverse comments by September 13, 2007 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

[[Page 45382]]

IV discusses the Bailey Waste Disposal Superfund Site, and demonstrates 
how it meets the deletion criteria. Section V discusses EPA actions 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 Site 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) response under CERCLA has been implemented, and no 
further response action by responsible parties is appropriate; or
    iii. The remedial investigation has shown that the release poses no 
significant threat to public health or the environment and, therefore, 
the taking of remedial measures is not appropriate.
    Even if a site is deleted from the NPL, where hazardous substances, 
pollutants, or contaminants remain at the deleted site above levels 
that allow for unlimited use and unrestricted exposure, CERCLA 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 that 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.
    (3) Concurrent with publication of this direct final notice of 
deletion, a notice of 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 Bailey Waste Disposal Site is located approximately three (3) 
miles southwest of Bridge City in Orange County, Texas, and was 
originally part of a tidal marsh near the confluence of the Neches 
River and Sabine Lake. The total site area includes two rectangular 
ponds and occupies approximately 280 acres. However, numerous 
investigations provided data to minimize the areas of the site that 
required remediation. These areas include the North Marsh Area 
(approximately four acres), the North Dike Area (approximately 7.8 
acres) and the East Dike Area (approximately 7.6 acres).

Site History

    The Site is situated in a sparsely populated marsh area, surrounded 
by primarily industrial land use. Two ponds, A and B, were constructed 
on the property by the landowner, Mr. Joe Bailey, as part of the Bailey 
Fish Camp in the early 1950s by dredging the marsh and piling the 
sediments to form levees, which surrounded the ponds. The fish camp was 
active until September 1961, when it was destroyed by Hurricane Carla, 
which introduced saline waters into the ponds, killing the freshwater 
fish. Mr. Bailey operated the site pursuant to his ownership and 
leasehold interests from the early 1950s through March or April 1971.
    Following the hurricane, Mr. Bailey allowed the disposal of 
industrial and municipal waste within the levees along the north and 
east margins of Pond A (the North Dike Area and the East Dike Area, 
respectively). In addition to the waste located within the North Dike 
Area, which includes waste contained in Pits A-l, A-2, A-3, and B, and 
the East Dike Area, waste was also present in the North Marsh Area. 
Major contaminants within the waste included ethyl benzene, styrene, 
benzene, chlorinated hydrocarbons and polynuclear aromatic 
hydrocarbons. Waste disposal operations at the Site ceased in 1971, and 
it was purchased by Gulf State Utilities.
    The North Dike Area is currently managed as a Texas Prairie 
Wetlands Project in cooperation with the Texas Parks & Wildlife, Ducks 
Unlimited, the U.S. Department of Agriculture Natural Resources 
Conservation Service and the U.S. Fish and Wildlife Service. There is 
little likelihood of additional development.

Remedial Investigation and Feasibility Study (RI/FS)

    In December 1984 the state of Texas entered into a cooperative 
agreement with EPA to conduct an RI/FS. Based on results from 
preliminary assessments, the Site was placed on the NPL on May 20, 
1986, with the Texas Water Commission (TWC) as the lead agency. The TWC 
completed Rl activities at the Site in October 1987, concluding: The 
Site has had no impact on drinking water and it would take over 800 
years to reach potable groundwater, but that existing site conditions 
could degrade through a flood or other natural occurrences, releasing 
the contaminants contained in the dikes into the surrounding marsh. At 
the time of the RI, there had been no development in the immediate 
vicinity of the Site, nor was it likely to be suitable for future 
development due to prohibitions against development in wetland areas. 
Upon completion of the RI, EPA assumed the role of lead agency and, 
under the terms of an administrative order on consent, a group of 
potentially responsible parties (PRPs), the Bailey Site Settlors 
Committee (BSSC), completed a feasibility study (FS) in April 1988.

[[Page 45383]]

Characterization of Risk

    Data collected during the RI indicated that should hazardous 
substances be released from the Site that might endanger public health, 
welfare, or the environment, the most significant risks to human health 
and the environment included: Direct contact with organic compounds and 
heavy metals determined to be carcinogens via absorption through the 
skin or other routes of inadvertent intake; air emissions of volatile 
organic compounds; surface waters (marsh) directly contacted by the 
waste, including organic compounds and heavy metals; and shallow 
groundwater directly beneath the waste contaminated with organic 
compounds and heavy metals.

Record of Decision Findings

    Based on the FS, EPA selected an in-situ stabilization and capping 
remedy, issuing the site ROD in June 1988. In July 1988 EPA, pursuant 
to section 122 of CERCLA, issued special notice letters to the PRPs 
providing them an opportunity to enter into an agreement to perform the 
remedial action. In September 1988 the BSSC submitted to EPA its ``Good 
Faith Offer,'' and an agreement to conduct the remedial action was 
reached. This agreement provided that the Settlors, as defined in the 
Consent Decree, would carry out the remedy selected by EPA, and that 
EPA would reimburse the Settlors for a portion of the costs to 
implement the remedy. However, because of demonstrated difficulties in 
achieving in-situ stabilization specifications and the finding that 
successful implementation of the original remedy would, if possible at 
all, be significantly more difficult, more time-consuming and more 
costly to implement than was contemplated at the time the original 
Record of Decision (ROD) was issued, EPA requested that the BSSC 
conduct a Focused Feasibility Study (FFS). FFS activities commenced in 
June 1995, and were completed in October 1996. The Revised Remedial 
Action was developed as a result of the FFS, and the ROD was amended in 
December 1996 consistent with the conclusions of the FFS. The amended 
ROD replaced the in-situ stabilization component of the original remedy 
with lightweight composite caps and the removal of certain wastes. 
February 8, 1996 and May 1, 1996 Explanations of Significant Difference 
(ESDs) documented the removal and offsite disposal of wastes, which was 
not specified in the original remedy.

Cleanup Standards

    The remedial action objectives were to minimize the potential for 
waste migration, protect human health and the environment, prevent 
future contamination of surface water and groundwater and minimize 
short-term air emissions resulting from remedial activities.

Response Actions

    After numerous in-situ stabilization attempts, subsequent 
investigations and a stabilization field pilot study, it was determined 
that the waste stabilization performance standards established in the 
ROD and the remedial design would, if possible at all, be significantly 
more difficult, more time-consuming, and more costly to implement than 
was contemplated at the time the original ROD was issued. Due to these 
difficulties, outlined in the Amended ROD (1996), implementation of the 
original remedy was not completed. Before that determination was made, 
the original action accomplished: Waste/soil interface evaluation; 
consolidation and relocation of shallow wastes; construction of clay 
dikes; construction of access roads; stabilization of approximately 
one-third of the East Dike Area; south drum disposal area remediation; 
and construction of a wastewater treatment plant. Between February and 
May 1996, additional actions taken included excavation of approximately 
20,000 cubic yards of waste and affected sediments and transportation 
of this material to an off-site industrial landfill for disposal, 
excavation and onsite relocation of waste and affected sediments and 
placement of interim soil covers. Final removal activities included: 
Relocation and consolidation of wastes within the limits of the area to 
be capped; installation of a temporary water collection system to 
intercept and remove groundwater; construction of lightweight composite 
caps; installation of riprap along the cap perimeter for erosion and 
scour protection; installation of storm water management controls; 
construction of maintenance roads; and installation of a passive gas 
venting system.
    The EPA and the Texas Natural Resource Conservation Commission 
(TNRCC) conducted a pre-final site inspection on July 31, 1997, and on 
August 20, 1997 the EPA conducted a final site inspection. All items 
noted in the pre-final site inspection were found to have been 
satisfactorily addressed with the exception of the removal of the silt 
fences, which were left in place until the establishment of vegetative 
growth on the cap surface. During the third quarterly site inspection 
conducted on May 29, 1998, EPA noted that the silt fences had been 
removed. The Preliminary Close Out Report signed on September 14, 1998 
notes that the remedy had been constructed in accordance with the 
remedial design plans and specifications and was operational and 
functional.
    On May 4, 1998, the EPA approved the Final Remedial Action Report 
for the Site. The final report documents that the remedial action for 
the site was completed in accordance with the ROD, Explanations of 
Significant Differences and the ROD Amendment for the site, and that 
the final site inspection had been conducted for construction 
activities. This action initiated the Operation and Maintenance phase 
under EPA oversight, with site O&M activities required of the BSSC.

Operation and Maintenance (O&M)

    In September 1997 EPA approved the Final Inspection, Maintenance 
and Monitoring Plan (IMMP) for the Site. The purpose of the IMMP is to 
document procedures to be used to assess and maintain the long-term 
protectiveness of the remedy while minimizing adverse natural or man-
made impacts on the Site. The Plan requires of the BSSC (1) regular 
inspection of the Site, including grounds, fencing, signs, access 
roads, bridge, vegetative cover, erosion control (riprap), evidence of 
erosion, gas vents, free movement of water and soil depression or 
settlement, (2) visits to the Site as needed to check site security and 
evaluate damage from severe weather events such as hurricanes, (3) 
maintenance, including regular mowing and clearance of trees and weeds 
from the capped and riprapped areas, repair of animal burrow damage, 
clearance of gas vent obstructions, silt removal if impeding the free 
flow of water within the diked area, repair or replacement of fences 
and signs, road and bridge repairs and periodic bridge recertification 
and (4) regular reporting of these activities to EPA through a formal 
Site Inspection Report. These reports are reviewed by the Remedial 
Program manager (RPM) when received, and are one component of the 
ongoing five-year reviews.
    Institutional controls (ICs) are a necessary component of 
maintaining the long-term protectiveness of the remedy. ICs are legal 
and administrative measures that prevent exposure to contaminants that 
may remain at a site at concentrations above health-based risk levels. 
They are typically designed to limit activities at or near the Site, 
and

[[Page 45384]]

include requirements for providing notice (i.e., deed recordation) in 
the real property records for properties where residual contamination 
will remain. For this Site, the ICs include a deed recordation with a 
notice that buried contaminants remain on the property, and a 
prohibition against any reuse, development or other activities that 
might disturb or damage the affected areas without the approval of EPA, 
TCEQ and the property owner. The requirement for institutional controls 
was met through the August 2, 2006 deed recordation in the Official 
Public Records of Real Property of Orange County, Texas for each of the 
two capped areas.

Five-Year Review

    Hazardous substances remain at the Site above levels that allow for 
unlimited use and unrestricted exposure. Therefore, the EPA must 
conduct a statutory five-year review of the remedy no less than every 
five years after the initiation of the remedial action pursuant to 
CERCLA Section 121(c), and as provided in the current guidance on Five 
Year Reviews (OSWER Directive 9355.7-03B-P, Comprehensive Five-Year 
Review Guidance, June 2001). Based on the five-year reviews, EPA will 
determine whether human health and the environment continue to be 
adequately protected by the implemented remedy. Five-year reviews for 
this Site were completed in September 2000 and September 2005. The 
reviews found that the remedy remains protective of human health and 
the environment, and that the Site appears to have been properly 
maintained during the period between reports. The next five-year review 
will occur no later than September 2010.

Community Involvement

    Public participation activities required in CERCLA Section 113(k), 
42 U.S.C. 9613(k), and CERCLA Section 117, 42 U.S.C. 9617, have been 
satisfied, and documents which EPA generated and/or relied on are 
available to the public in these 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 October 15, 2007 unless EPA receives adverse comments by 
September 13, 2007. 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 waste, Hazardous substances, Intergovernmental relations, 
Penalties, Reporting and recordkeeping requirements, Superfund, Water 
pollution control, Water supply.

    Dated: July 19, 2007.
Richard E. Greene,
Regional Administrator, EPA 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 ``Bailey Waste Disposal.''

 [FR Doc. E7-15891 Filed 8-13-07; 8:45 am]
BILLING CODE 6560-50-P