03-3413. Proposed CERCLA Administrative Cost Recovery Settlements: Stickney Avenue Landfill and Tyler Street Dump Superfund Sites

AGENCY:

Environmental Protection Agency.

ACTION:

Notice; request for public comment.

SUMMARY:

In accordance with section 122(i) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (“CERCLA”), 42 U.S.C. 9622(i), notice is hereby given of two proposed administrative settlements for recovery of past response costs concerning the Stickney Avenue Landfill and Tyler Street Dump Superfund Sites in Toledo, Lucas County, Ohio, between the United States Environmental Protection Agency (“U.S. EPA” or “the Agency”) and the following nine settling parties:

International Paper (f.k.a. Chase Bag);

The Dial Corporation;

Earl Scheib of Ohio, Inc.;

Eastman Kodak Company;

Hanson Building Materials America, Inc., (f/k/a Hanson North America, Inc.), as successor to Dura Corporation;

Reichert Stamping Company;

SafetyKleen Envirosystems Company, (f.k.a. Inland Chemical Corporation);

The Sherwin-Williams Company;

Sunoco, Inc. (R&M).

There are two separate settlement agreements. One agreement covers a settlement between U.S. EPA and SafetyKleen Envirosystems Company (SafetyKleen); the other agreement memorializes the settlement between U.S. EPA and the other nine PRPs. The settlements require the settling parties to pay a total of $244,427 to the Hazardous Substance Superfund. The settlements also include a covenant not to sue the settling parties pursuant to section 107(a) of CERCLA, 42 U.S.C. 9607(a).

For 30 days following the date of publication of this notice, the Agency will receive written comments relating to the settlements. The Agency will consider all comments received and may modify or withdraw its consent to the settlements if comments received disclose facts or considerations which indicate that the settlements are inappropriate, improper, or inadequate. The Agency's response to any comments received will be available for public inspection at the following locations:

Toledo Public Library, Main Branch, Science & Technology Dept., 325 Michigan St., Toledo, OH.

Toledo Public Library, West Toledo Branch, 1320 Sylvania Ave., Toledo, OH.

Toledo Public Library, Point Place Branch, 2744 110th St., Toledo, OH.

Records Center, U.S. EPA, Region 5, 7th Floor, 77 W. Jackson Blvd., Chicago, IL 60604.

DATES:

Comments must be submitted on or before March 13, 2003.

Background: The Stickney Site is a 50-acre piece of property located at 3900 Stickney Avenue, in the City of Toledo, Lucas County, Ohio. The Site is approximately 51/2 miles upstream from the point where the Ottawa River discharges into Lake Erie. It is bordered to the west and northwest by the Ottawa River, to the north and south by privately-owned property, and to the east by Stickney Avenue. The Stickney site was used for the disposal of municipal waste by the City of Toledo from the late 1950's to about 1966, at which time the landfill was covered with soil, graded, and seeded. In addition to municipal waste, commercial and industrial waste was also disposed at the Site.

The Tyler Site is a 41-acre piece of property located on Tyler Street, in the City of Toledo, Lucas County, Ohio, across the Ottawa River from the Stickney Site (the Ottawa River borders Tyler to the south and east). The Tyler Site is bordered on the north by the F.S. Royster Corporation (Royster) site, by railroad tracks, and by small industrial facilities and residences. The City of Toledo operated the Tyler Site as a municipal co-disposal landfill. According to documents in U.S. EPA files and those of the Ohio Environmental Protection Agency (Ohio EPA), wastes were accepted at the Tyler Site between about 1955 and 1968. Other available records indicate that the Site may have operated as early as 1951 and as late as the early 1970s.

On March 9, 1993, U.S. EPA conducted a Screening Site Inspection (SSI) for the Stickney Site and for the Tyler Site. The SSI indicated that hazardous substances from surface soils and leachate at both Sites were being released or posed a threat of release to the Ottawa River.

Immediately adjacent to the Stickney Site on the south is an area generally referred to as the “XXKem Site” (a.k.a. S.M. Allen or Incorporated Crafts). The 13-acre XXKem facility formerly was occupied by companies which performed waste solvent and waste oil fuel blending operations. The XXKem Site is divided by a fence line which separates the front (east) portion (approximately 6 acres) from the central portion, which contains a closed lagoon. The Stickney Site is hydrogeologically down-gradient of the XXKem Site. Between 1959 and 1969, Borden Chemical Printing Ink of Whitehouse, Ohio, disposed of wastes, presumably related to the manufacturing of inks, at the XXKem Site. Incorporated Crafts, Inc., operated on the XXKem Site between 1974 and 1981, using the lagoon for the disposal of liquid wastes from various industrial processes. Under a 1981 consent decree with the State of Ohio, Incorporated Crafts was ordered to close the lagoon. Under the terms of the decree, liquid wastes were to be removed from the lagoon and transported off site for treatment/disposal. The decree also provided for backfilling the lagoon with non-metallic auto demolition material, capping with clay and topsoil, and seeding. Closure was completed in 1983. However, an Expanded Site Inspection (ESI) conducted in 1994 and a Supplemental ESI performed in 1995 (both of which were conducted by the Ohio Environmental Protection Agency (OEPA) under a Cooperative Agreement with U.S. EPA) indicated that significant subsurface soil contamination remained in the former lagoon area, contamination that had migrated to the groundwater at the XXKem Site and the adjacent Stickney Site, posing a potential threat to the Ottawa River.

In May 1994, U.S. EPA signed an Administrative Order on Consent with a group of six PRPs for the Stickney and Tyler Sites for the performance of an Engineering Evaluation/Cost Analysis (EE/CA) at the Stickney and Tyler Sites. During the EE/CA investigation for the Stickney Site, it became apparent that it would be necessary to cap a portion of the adjacent XXKem Site in order to tie the Stickney cap into native soils (fill at XXKem and Stickney were contiguous). The Final EE/CAs were approved on September 14, 1995, and included separate Streamlined Risk Evaluations (SREs) for the Stickney and Tyler Sites. On January 22, 1996, based on the results of the SREs and the analysis set forth in the EE/CAs, U.S. EPA issued separate Enforcement Action Memoranda (EAM), selecting non time-critical removal actions for the Stickney and Tyler Sites. The Stickney EAM also contained a response action decision for the former lagoon at the XXKem Site. Subsequent investigations of the sludge at the bottom of the disposal lagoon at XXKem and the groundwater impacted by that sludge provided evidence that sludge at the bottom of the closed lagoon contained significant levels of organic pollutants, PCBs, and inorganic pollutants, and that these pollutants were migrating via the groundwater to the Stickney Site and becoming commingled with contaminants in the latter. This led U.S. EPA to issue an action memorandum for the XXKem Site in January 1998 (“XXKem Action Memorandum”). The XXKem Action Memorandum called for the construction of a leachate extraction system near the XXKem/Stickney boundary, the purpose being to stop the migration of XXKem pollutants to the groundwater under the Stickney Site. This Action Memorandum was subsequently implemented through Administrative Orders by Consent negotiated with the City of Toledo and SafetyKleen.

Subsequently, U.S. EPA entered into an administrative consent order with a group of PRPs collectively known as the Stickney/Tyler Administrative Group (“STAG”), which consisted of the original six PRPs who had performed the EE/CA and numerous additional parties. In order to come to agreement with U.S. EPA, STAG conducted a private allocation process, which was presided over by a third-party neutral. Although U.S. EPA was not a party to the allocation process, the Agency subsequently received a copy of the allocator's report and reviewed the rationales set forth in the report. The Administrative Order by Consent (AOC) with STAG was signed by U.S. EPA on February 27, 1998. This AOC required STAG to install landfill caps at the Stickney and Tyler Sites, as required by the Enforcement Action Memoranda for these two Sites.

Cost Recovery Settlements

Based in part on the allocation process completed by STAG, U.S. EPA has determined that the settlements identified above are appropriate to resolve any cost recovery claims of U.S. EPA in connection with the Stickney and Tyler Sites. The settlements proposed in this Notice are with parties who did not join the administrative consent order between U.S. EPA and STAG to perform the response actions at these sites. Specifically, after the administrative consent order with STAG, U.S. EPA identified ten non-settling PRPs who, based on the allocation, had significant liability for the Agency's response costs; U.S. EPA subsequently negotiated cost recovery agreements with nine of these entities, who are identified above (the only remaining PRP is First Medical Group). The agreement reached with the PRPs other than SafetyKleen was based on the allocation of responsibility prepared by the third-party neutral for STAG, as well as information provided during settlement negotiations regarding the level of responsibility attributable to each PRP.

The agreement with SafetyKleen was based on that company's responsibility for its predecessor's disposal activities at the XXKem Site. SafetyKleen's predecessor-in-interest, Inland Chemical Company, was responsible for the disposal of toxic chemicals at the central portion of the XXKem Site, which was capped by STAG as part of the Stickney action. The capped area at XXKem consists of approximately 5.5 acres, while the total capped area covering the Stickney and XXKem Sites is equal to approximately 50 acres. Therefore, the capped area at XXKem represents 11 percent (11%) of the total capped area covering the Stickney and XXKem Sites. This percentage was applied to the United States' unrecovered past costs for the Stickney Site. The resulting calculation of the costs associated with the investigation and capping of the XXKem portion were $53,232. U.S. EPA applied a 15 percent premium to this amount because SafetyKleen had not joined STAG in implementing the remedy for the Stickney Site; this premium yielded $61,217, which was rounded down to $60,000 for purposes of settlement.

U.S. EPA has determined that the cost recovery agreements negotiated with these nine entities are appropriate. In addition, the United States Department of Justice reviewed these agreements and gave its concurrence on December 9, 2002.

ADDRESSES:

The proposed settlement is available for public inspection at the following locations:

Toledo Public Library, Main Branch, Science & Technology Dept., 325 Michigan St., Toledo, OH.

Toledo Public Library, West Toledo Branch, 1320 Sylvania Ave., Toledo, OH.

Toledo Public Library, Point Place Branch, 2744 110th St., Toledo, OH.

Records Center, U.S. EPA, Region 5, 7th Floor, 77 W. Jackson Blvd., Chicago, IL.

Comments should reference the Stickney Avenue Landfill, 3900 Stickney Avenue, City of Toledo, Lucas County, Ohio, and/or the Tyler Street Dump, City of Toledo, Lucas County, Ohio and EPA Docket No. V-W-03-C-723 or V-W-03-C-724, and should be addressed to James Cha, Associate Regional Counsel, 77 West Jackson Blvd., Mail Code C-14J, Chicago, Illinois 60604. Copies of the proposed settlements may be obtained from Deloris Johnson, Paralegal, Office of Regional Counsel, 77 West Jackson Blvd., Mail Code C-14J, Chicago, Illinois 60604, [phone].

FOR FURTHER INFORMATION CONTACT:

James Cha, Associate Regional Counsel, 77 West Jackson Blvd., Mail Code C-14J, Chicago, Illinois 60604, [phone].

Dated: January 24, 2003.

William Muno,

Director, Superfund Division.