[Federal Register Volume 73, Number 141 (Tuesday, July 22, 2008)]
[Rules and Regulations]
[Pages 42533-42536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-16478]



[[Page 42533]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[FRL-8694-5]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct Final Deletion of the Pfohl Brothers Landfill Superfund 
Site (Site) from the National Priorities List.

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SUMMARY: EPA, Region 2, is publishing a direct final Notice of Deletion 
of the Site, located in Cheektowaga, Erie County, New York, from the 
National Priorities List (NPL). The NPL is Appendix B of the National 
Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR 
part 300, which EPA promulgated pursuant to section 105 of the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA) of 1980, as amended, 42 U.S.C. 9605. This direct final Notice 
of Deletion is being published by EPA with the concurrence of the State 
of New York, through the New York State Department of Environmental 
Conservation (NYSDEC). EPA and NYSDEC have determined that the 
responsible parties have completed all appropriate remedial actions and 
that no further actions, other than operation and maintenance and five-
year reviews, are required. In addition, EPA and NYSDEC have determined 
that the cleanup goals attained at this Site are protective of public 
health and the environment. This deletion does not preclude future 
actions under Superfund.

DATES: This direct final deletion will be effective September 22, 2008 
unless EPA receives significant adverse comments by August 21, 2008. 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: Submit your comments, identified by Docket ID no. EPA-HQ-
SFUND-1994-0001, by one of the following methods:
    Web site: http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
    E-mail: [email protected].
    Fax: To the attention of Pamela Tames at (212) 637-3966.
    Mail: To the attention of Pamela Tames, P.E., Remedial Project 
Manager, Emergency and Remedial Response Division, U.S. Environmental 
Protection Agency, Region 2, 290 Broadway, 20th Floor, New York, NY 
10007-1866.
    Hand Delivery: Superfund Records Center, 290 Broadway, 18th Floor, 
New York, NY 10007-1866 (telephone: 212-637-4308). Such deliveries are 
only accepted during the Docket's normal hours of operation (Monday to 
Friday from 9 a.m. to 5 p.m.). Special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID no. EPA-HQ-SFUND-
1994-0001.
    EPA's policy is that all comments received will be included in the 
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 CBI 
or otherwise protected through http://www.regulations.gov or via 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 comments. If you 
send comments to EPA via e-mail, your e-mail address will be included 
as part of the comment that is placed in the Docket and made available 
on the Web site. If you submit electronic comments, EPA recommends that 
you include your name and other contact information in the body of your 
comments and with any disks or CD-ROMs that you submit. If EPA cannot 
read your comments due to technical difficulties and cannot contact you 
for clarification, EPA may not be able to consider your comments. 
Electronic files should avoid the use of special characters and any 
form of encryption and should 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 can be viewed electronically at 
http://www.regulations.gov or obtained in hard copy at:

U.S. Environmental Protection Agency, Region 2, Superfund Records 
Center, 290 Broadway, 18th Floor, New York, NY 10007-1866, Phone: 212-
637-4308, Hours: Monday to Friday from 9 a.m. to 5 p.m. and
New York State Department of Environmental Conservation, Region 9, 270 
Michigan Avenue, Buffalo, New York 14203-2999, Phone: 716-851-7200.

FOR FURTHER INFORMATION CONTACT: Pamela Tames, P.E., Remedial Project 
Manager, by mail at Emergency and Remedial Response Division, U.S. 
Environmental Protection Agency, Region 2, 290 Broadway, 20th floor, 
New York, NY 10007-1866; telephone at 212-637-4255; fax at 212-637-
3966; or e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

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

I. Introduction

    EPA Region 2 is publishing this direct final deletion of the Pfohl 
Brothers Landfill Superfund Site (Site) from the National Priorities 
List (NPL). The NPL constitutes Appendix B of 40 CFR Part 300, which is 
the National Oil and Hazardous Substances Pollution Contingency Plan, 
40 CFR Part 300 (NCP), which EPA promulgated pursuant to section 105 of 
the Comprehensive Environmental and Liability Act (CERCLA) of 1980, as 
amended. EPA maintains the NPL as the list of sites that appear to 
present a significant risk to public health, welfare, or the 
environment. Sites on the NPL may be the subject of remedial actions 
financed by the Hazardous Substance Superfund (Fund). As described in 
Sec.  300.425(e)(3) of the NCP, a site deleted from the NPL remains 
eligible for remedial actions if conditions at the site warrant such 
action.
    Because EPA considers this action to be noncontroversial and 
routine, this action will be effective September 22, 2008 unless EPA 
receives significant adverse comments by August 21, 2008. Along with 
this direct final Notice of Deletion, EPA is co-publishing a Notice of 
Intent to Delete 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 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

[[Page 42534]]

the Notice of Intent to Delete and the comments received. In such a 
case, there will be no additional opportunity to comment.
    Section II below explains the criteria for deleting sites from the 
NPL. Section III discusses procedures that EPA is using for this 
action. Section IV discusses the Site and demonstrates how it meets the 
deletion criteria. Section V discusses EPA's action to delete the Site 
from the NPL unless significant adverse comments are received during 
the public comment period.

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 accordance 
with Sec.  300.425(e)(1), EPA shall consult with the State to determine 
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 of 
hazardous substances poses no significant threat to public health or 
the environment and, therefore, taking of remedial measures is not 
appropriate.
    In addition, the State shall concur with the deletion, as required 
by Sec.  300.425(e)(2), and the public shall be informed, as required 
by Sec.  300.425(e)(4). A site which is deleted from the NPL remains 
eligible for remedial actions should future conditions warrant such 
action, as set forth in Sec.  300.425(e)(3). Even if a site is deleted 
from the NPL, where hazardous substances, pollutants, or contaminants 
remain above levels that allow for unlimited use and unrestricted 
exposure, CERCLA section 121(c), 42 U.S.C. 9621(c) requires that a 
review of the site be conducted at least every five years after the 
initiation of the remedial action 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. If 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, a numerically-based 
screening system that uses information from initial, limited 
investigations to assess the relative potential of sites to pose a 
threat to human health or the environment.

III. Deletion Procedures

    The following procedures apply to deletion of the Site.
    (1) EPA consulted with the State of New York prior to developing 
this direct final Notice of Deletion and the Notice of Intent to Delete 
co-published today in the ``Proposed Rules'' section of the Federal 
Register.
    (2) EPA has provided the State 30 working days for review of this 
notice and the parallel Notice of Intent to Delete prior to their 
publication today, and the State, through the NYSDEC, has concurred on 
the 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 Delete is being published in a major local newspaper, The 
Buffalo News. The newspaper notice announces the 30-day public comment 
period concerning the Notice of Intent to Delete the Site from the NPL.
    (4) EPA placed copies of documents supporting the proposed deletion 
in the deletion docket and made these items available for public 
inspection and copying at the Site information repositories identified 
above.
    (5) If adverse comments are received within the 30-day public 
comment period on this deletion action, 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. If appropriate, 
EPA may then continue with the deletion process based on 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 summary provides the Agency's rationale for the 
proposal to delete this Site from the NPL.

Background

    The Site consists of a 130-acre inactive landfill and an adjacent 
22-acre borrow pit located in a commercial/residential area in the Town 
of Cheektowaga, Erie County, New York, approximately one mile northeast 
of Buffalo International Airport.
    The Site is bordered by wetlands, Aero Lake, Aero Creek, and the 
New York State Thruway to the north. The remaining boundaries consist 
of Transit Road to the east, a Niagara Mohawk Power easement to the 
west, and residential properties (along the north side of Pfohl Road) 
and Conrail tracks to the south. A former New York Thruway Authority 
borrow area (Area A) is located just south of the New York State 
Thruway. The Site is bisected from west to east by Aero Drive. One 
disposal area is located immediately north of Aero Drive (Area B) and 
another disposal area is located immediately south of Aero Drive (Area 
C).
    The Pfohl Brothers Landfill accepted municipal and industrial 
wastes from 1932 to 1971 from the surrounding townships, manufacturers, 
and utilities. The landfill was operated as a cut and fill operation, 
whereby waste and drums, which were filled with substances that could 
be spilled out, were emptied into 150-foot diameter trenches. Some of 
the generators of the waste have indicated that pine tar pitch, waste 
paints and thinners, waste cutting oils, oil-contaminated Fuller's 
earth, phenolic tar containing chlorinated benzenes and dioxins, and 
oil and capacitors laden with polychlorinated biphenyls (PCBs) were 
disposed of at the Site. No records were kept as to the quantity of 
wastes received, other than an estimated 125 tons of phenolic tar. 
Limited historical records indicate that no hazardous wastes were 
disposed of in Area A. Soil from this area was used primarily by the 
New York Thruway Authority for road fill material.
    A preliminary assessment of the Site was performed by EPA in 1982 
to determine its hazard ranking. Based upon the analytical results, 
which indicated that the landfill leachate contained various volatile 
organic compounds, semi-volatile organic compounds and metals, the Site 
was listed on the New York State Registry of Inactive Hazardous Waste 
Disposal Sites as a ``Class 2 Inactive Hazardous Waste Site'' in 1985.
    Between 1983 and 1985, all of the residences near the Site were 
connected to the municipal drinking water supply system. Previously, 
these residents obtained drinking water from private wells.
    The Site was added to the NPL on December 16, 1994 (FRL-5124-7).

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Remedial Investigation and Feasibility Study (RI/FS)

    An RI/FS was initiated in 1988 by NYSDEC. Various levels of 
volatile organic compounds, semi-volatile organic compounds, PCBs, and 
metals were detected in the soil, groundwater, and sediment. In 1990, 
NYSDEC installed a fence around most of the Site.
    A second RI/FS addressed Area A and the off-site groundwater 
contamination. Based upon the results of this investigation, it was 
determined that Area A was not used for the disposal of hazardous 
substances and significant levels of groundwater contamination were not 
detected.

Selected Remedy

    A ROD for Areas B and C was issued by NYSDEC in February 1992. The 
selected remedy included capping the two disposal areas, construction 
of a leachate collection and conveyance system, construction of a 
barrier wall containment system around the outside perimeter of the 
disposal areas, collection and disposal of the drums and phenolic tars 
found on-Site, and long-term monitoring of the groundwater at and near 
the landfill. The ROD also called for the implementation of 
institutional controls to protect the integrity of the containment 
remedy and to prevent the use of contaminated groundwater.
    A ROD for Area A, issued on January 10, 1994, selected a ``no-
action'' remedy.

Response Actions

    Under Orders on Consent with NYSDEC dated October 4, 1993 and April 
11, 2001, the PRP Group performed the actions called for in the 1992 
ROD.
    The PRP Group commenced the design related to the containment 
system and leachate collection system in 1994; the design was approved 
by NYSDEC upon execution of the above-noted Order on Consent in April 
2001. Detailed information on the remedial construction is available in 
the September 2003 Remedial Action Report.
    To facilitate future development along Pfohl Road and Aero Drive, 
approximately 31 acres of landfilled material, consisting of 
approximately 365,000 cubic yards of waste located along these roads 
(edges of Areas B and C) were excavated and consolidated on the 
interior portions of Areas B and C. In addition, 9,200 cubic yards of 
contaminated soil and waste were excavated to protect the adjacent 
wetlands and consolidated on the interior portions of Areas B and C. 
Post-excavation soil samples showed that the remaining soils met New 
York State's soil cleanup objectives, thereby eliminating all 
significant threats to human health and/or the environment. The 
excavated areas were backfilled and seeded.
    Caps were constructed over the consolidated wastes in the two fill 
areas (approximately 70 acres in Area B and 24 acres in Area C) in 
conformance with 6 New York State NYCRR Part 360 closure requirements. 
The caps consist of a six-inch gas venting layer overlain by a layer of 
filter fabric, a 40-mil thick very flexible polyethylene (VFPE) liner, 
a 24-inch barrier protection layer of clean soil, and topped with six 
inches of topsoil capable of supporting vegetation. Forty-nine gas 
vents were installed to convey the gas from beneath the low 
permeability layer of the caps via the gas venting layer to the 
atmosphere.
    The leachate collection system consists of an 8-inch diameter 
perforated solid collection pipe set in a wall of granular material 
which runs along the 10,000-foot perimeter of the disposal areas. An 
additional 1,000 feet of collection drain was installed in the 
southwest interior of Area B to promote an upward gradient from the 
bedrock to the overburden aquifer within the confines of the perimeter 
barrier containment system. All of the collected leachate is discharged 
directly to the Cheektowaga Publicly-Owned Treatment Works via six 
collection wet wells and a force main that was constructed to the sewer 
interceptor on Rein Road. A VFPE wall keyed into 24 inches of 
undisturbed clay at the bottom of the perimeter trench was installed as 
a vertical barrier to prevent the collection drain system from 
collecting clean off-Site groundwater and dewatering the adjacent 
wetlands. The VFPE wall was connected to the VFPE liner in the landfill 
cap. A Remedial Action Report documenting the completion of the 
Remedial Action was approved by EPA in September 2003.
    The 1992 ROD called for the implementation of institutional 
controls to protect the integrity of the containment remedy and to 
prevent the use of contaminated groundwater. The restrictions were 
placed on Areas B and C in the form of Declarations of Covenants and 
Restrictions and Grant of Access signed by each of the seven owners 
whose parcels make up the Site. Five of the seven agreements were 
signed by the end of 2003 and the last two were signed in late 2005. 
Each Declaration requires that the owners agree not to use any on-Site 
groundwater, not to construct on-Site surface water cisterns, not to 
access the capped areas without prior written approval of NYSDEC, not 
to excavate, remove, or disturb the on-Site soil without NYSDEC written 
approval, and not to plant trees and shrubs whose roots may breach the 
caps.

Cleanup Goals

    The implemented actions protect human health and the environment. 
The landfilled areas have been capped, removing potential direct 
contact (i.e., ingestion or dermal contact of soil) exposures to the 
public. Institutional controls are in place to prevent potential 
exposures to the public, including trespassers. The potential impacts 
to groundwater are being addressed through the caps that reduce or 
prevent percolation through the landfilled areas and a barrier wall 
containment system around the outside perimeter of the disposal areas. 
The leachate collection system is discharging to an appropriate 
discharge facility to reduce potential exposures to the population. 
Groundwater monitoring data indicate that Site-related contamination is 
not present outside the containment system. A final Close-Out report 
documenting the completion of the implementation of the site remedies 
was issued by EPA on December 10, 2007.

Operation and Maintenance

    An operation and maintenance (O&M) plan, which provides for a long-
term monitoring program for the cover system, the drainage system, the 
groundwater, and the institutional controls, was approved in February 
2006. The O&M activities at the Site are being performed by the Town of 
Cheektowaga. Semi-annual O&M reports are reviewed by NYSDEC and EPA.

Five-Year Review

    Hazardous substances remain at the Site above levels that would 
allow for unlimited use with unrestricted exposure. Pursuant to section 
121(c) of CERCLA, EPA reviews site remedies where such hazardous 
substances, pollutants, or contaminants remain no less often than every 
five years after the initiation of a remedy at a site. EPA conducted a 
five-year review of the Site in March 2006. The five-year review led 
EPA to conclude that human health and the environment are being 
protected by the remedial action implemented at the Site. The next 
five-year review is scheduled to be completed before March 2011.

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Community Involvement

    Public participation activities for this Site have been satisfied 
as required in CERCLA sections 113(k) and 117, 42 U.S.C. 9613(k) and 
9617. As part of the remedy selection process, the public was invited 
to comment on NYSDEC's proposed remedies. All other documents and 
information which EPA relied on or considered in recommending this 
deletion are available for the public to review at the information 
repositories identified above.

Determination That the Site Meets the Criteria for Deletion From the 
NCP

    All of the completion requirements for this Site have been met, as 
described in the December 2007 Final Close-Out Report. The State of New 
York, in a September 28, 2007 letter, concurred with the proposed 
deletion of this Site from the NPL.
    The NCP specifies that EPA may delete a site from the NPL if ``all 
appropriate Fund-financed response under CERCLA has been implemented, 
and no further response action by responsible parties is appropriate.'' 
40 CFR 300.425(e)(1)(ii). EPA, with the concurrence of the State of New 
York, through NYSDEC, believes that this criterion for deletion has 
been met. Consequently, EPA is deleting this Site from the NPL. 
Documents supporting this action are available in the Site files.

V. Deletion Action

    EPA, with the concurrence of the State of New York, 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 September 22, 2008 unless EPA receives adverse comments by 
August 21, 2008. If adverse comments are received within the 30-day 
public comment period of this action, EPA 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 received. In such a case, there will be no additional 
opportunity to comment.

List of Subjects in 40 CFR Part 300

    Environmental protection, Air pollution control, Chemicals, 
Hazardous substances, Hazardous waste, Intergovernmental relations, 
Natural resources, Oil pollution, Penalties, Reporting and 
recordkeeping requirements, Superfund, Water pollution control, Water 
supply.

    Dated: June 30, 2008.
George Pavlou,
Acting Regional Administrator, Region 2.

0
For the reasons set out in the preamble, 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; and 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 ``Pfohl Brothers Landfill'' and the 
corresponding City/County designation ``Cheektowaga.''

[FR Doc. E8-16478 Filed 7-21-08; 8:45 am]
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