04-5875. National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List

AGENCY:

Environmental Protection Agency.

ACTION:

Notice of intent to delete the Love Canal Superfund site from the National Priorities List.

SUMMARY:

The Environmental Protection Agency (EPA), Region II, announces its intent to delete the Love Canal Superfund site (Site) from the National Priorities List (NPL) and requests 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 pursuant to Section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as amended. EPA and the State of New York (State), through the New York State Department of Environmental Conservation (NYSDEC), have determined that all appropriate response actions under CERCLA have been implemented and that no further response action pursuant to CERCLA are appropriate.

DATES:

Comments concerning this Action must be received by April 16, 2004.

ADDRESSES:

Written comments should be submitted to: Damian J. Duda, Remedial Project Manager, Emergency and Remedial Response Division, U.S. Environmental Protection Agency, Region II, 290 Broadway, 20th Floor, New York, New York 10007-1866.

Comprehensive information on this Site is available through the EPA Region II public docket contained at: U.S. Environmental Protection Agency, Region II, Superfund Records Center, 290 Broadway, Room 1828, New York, NY 10007-1866, [phone].

Hours: 9 a.m. to 5 p.m., Monday through Friday.

Information on the Site is also available for viewing at the following information repository: U.S. Environmental Protection Agency, 530 Third Street, Niagara Falls, New York 10460, [phone].

FOR FURTHER INFORMATION CONTACT:

Damian Duda, at the address provided above, by telephone at [phone], by electronic mail at [e-mail] or by FAX at [phone].

SUPPLEMENTARY INFORMATION:

 

Table of Contents

I. Introduction

II. NPL Deletion Criteria

III. Deletion Procedures

IV. Basis for Intended Site Deletion

I. Introduction

EPA Region II announces its intent to delete the Love Canal Superfund site, located in the City of Niagara Falls, Niagara County, New York from the NPL and requests public comment on this action. The NPL is Appendix B of the NCP, which EPA promulgated, pursuant to Section 105 of CERCLA. 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. Sites on the NPL can have remedial actions financed by the Hazardous Substances Superfund Response Trust Fund (Fund). As described in 40 CFR 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.

The Site is located in the southeast corner of the City of Niagara Falls, approximately 1/4 mile north of the Niagara River in Niagara County, New York.

EPA will accept comments concerning the deletion of this Site from the NPL for thirty days after publication of this notice in the Federal Register.

II. NPL Deletion Criteria

The NCP establishes the criteria that the Agency uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making this determination, EPA, in consultation with the State of New York, shall consider whether any of the following criteria have been met:

(i) Responsible or other parties have implemented all appropriate response actions required; or,

(ii) All appropriate Fund-financed responses under CERCLA have been implemented, and no further response actions 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. 40 CFR 300.425(e)(1).

III. Deletion Procedures

The following procedures are being used for the intended deletion of the Site:

(1) EPA Region II issued the following decision documents: a Decision memorandum in July 1982; three Records of Decision (RODs) in March 1985, September 1987 and September 1988; three Explanations of Significant Differences (ESDs) in June 1989, November 1996 and December 1998; and, a ROD Amendment in May 1991, all of which describe the selected remedies at the Site.

(2) EPA, NYSDEC and the Potentially Responsible Party (PRP) designed and constructed the various remedies at the Site. EPA and NYSDEC monitored the design and construction activities. EPA prepared a Final Closeout Report (available upon request), which describes the remedial activities that were implemented and which finds that all areas of concern described in the NPL listing and the various decision documents have been adequately addressed.

(3) EPA Region II recommends deletion and has made all relevant documents available in the Regional office and local information repository.

(4) The State of New York, through the NYSDEC, has concurred with the deletion decision in a letter dated September 30, 2003.

(5) Concurrent with the publication of this Notice of Intent to Delete, a notice has been published in two local newspapers and has been distributed to appropriate Federal, State and local officials and any other interested parties, announcing a thirty (30)-day public comment period on the deletion package.

The NCP provides that EPA shall not delete a site from the NPL until the public has been afforded an opportunity to comment on the proposed deletion. EPA Region II will accept and evaluate public comments before making a final decision to delete. If a decision is made to delete this Site, the decision will be made in a final Notice of Deletion in the Federal Register. Deletion of a site from the NPL does not affect responsible party liability or impede Agency efforts to recover costs associated with response efforts. The NPL is designed primarily for informational purposes and to assist Agency management.

IV. Basis for Intended Site Deletion

Between 1942 and 1952, the Hooker Chemicals & Plastics Corporation (now Occidental Chemical Corporation (OCC)) disposed of approximately 22,000 tons of drummed and liquid chemical wastes, including polycyclic aromatic hydrocarbons, halogenated organics, pesticides, chlorobenzenes and dioxin into the abandoned Love Canal Landfill (LCL).

Problems with odors and residues in the basements and backyards of properties abutting the LCL were first reported in the 1970's. Also, during the 1970's, unusually high precipitation in the region caused the water table within the LCL to rise, which allowed contaminants to spread laterally in surficial soils and along utility bedding, eventually seeping into the basements of nearby homes. Dioxin and other contaminants also migrated from the LCL to the sanitary and storm sewers which extended outside the LCL boundaries, some with outfalls into nearby creeks which are tributaries to the Niagara River. In 1978, the New York State Department of Health (NYSDOH) identified more than 80 chemicals in the LCL and adjacent soils.

In August 1978, President Carter issued the first of two Emergency Declarations at the Site which provided Federal funding for remedial work to contain the chemical wastes at the Site and for the relocation of the residents in the homes (239 properties) directly adjacent to the LCL; these homes were subsequently identified as Ring I and Ring II.

In May 1980, President Carter issued the second Declaration of Emergency at the Site. This emergency declaration established the Emergency Declaration Area (EDA), the approximately 350-acre neighborhood surrounding the Site, and authorized $20 million of Federal funds for the purchase of homes. The Federal Emergency Management Agency (FEMA) disbursed these funds and, together with NYSDEC, relocated approximately 950 families, of the more than 1,050 families affected, from a 10-square-block area surrounding the LCL.

In 1981, EPA proposed the addition of the Site to the NPL, making it available for funding under CERCLA. The Site was added to the NPL in 1983.

In May 1982, EPA's Office of Research and Development issued the Environmental Monitoring at Love Canal Study (May 1982) (EMS) which evaluated the nature and extent of contamination throughout the EDA, including air, soils, surface water, sediments and biota sampling.

In July 1982, the EPA Region 2 Regional Administrator issued a Decision Memorandum: Cooperative Agreement with the State of New York for Love Canal. This memorandum was a precursor to the Superfund ROD and documented the work that had been performed by NYSDEC, approved additional Federal funding, and identified a phased approach for conducting eight additional tasks which included the following:

• Undertake Site containment via an expanded leachate collection system and/or other containment option.
• Investigate/remediate contamination in the north end storm and sanitary sewer system.
• Investigate/remediate contamination in Black and Bergholtz creeks.
• Investigate/remediate contamination in the south end storm sewers.
• Investigate/remediate contamination in the western sanitary sewers and lift stations.
• Develop long-term monitoring to ensure the effectiveness of the cleanup activities.
• Investigate/remediate 102nd Street outfall.
• Prepare summary document with conclusions.

By June 1983, the Rings I and II homes, adjacent to the LCL, as well as the 99th Street School, had been demolished.

In August 1983, in order to address concerns raised by the Office of Technology Assessment and the public regarding the 1982 EMS, EPA established the multi-agency Love Canal Technical Review Committee (TRC) to act as a management group to provide interagency coordination and oversight for further remedial and habitability activities for the Site. The TRC was comprised of senior-level representatives from EPA, U.S. Department of Health and Human Services/Centers for Disease Control, NYSDOH and NYSDEC. The principal task of the TRC was to determine the habitability of the EDA surrounding the Site.

The efforts of the TRC led to the development of the Love Canal Emergency Declaration Area Habitability Study (LCHS). A draft Habitability Criteria document was developed, pursuant to recommendations of an independent panel, and was released for peer review. The final habitability criteria were established after this extensive peer review process of the draft habitability criteria. The development of the five-volume LCHS was based upon the final habitability criteria.

In October 1983, EPA issued the Environmental Information Document—Site Investigations and Remedial Action Alternatives—Love Canal which evaluated contamination in the creeks and sewers surrounding the LCL and provided treatment alternatives for their remediation.

In 1984, NYSDEC installed a 40-acre cap over the LCL, consisting of a high-density polyethylene liner, which was then covered by 18 inches of clean soil and seeded for grass. In addition, NYSDEC performed high-pressure cleaning of the leachate collection system in February 1983 to improve its performance. The permanent leachate treatment plant began operation in December 1979. Modifications were made to the leachate treatment plant in December 1984.

In March 1985, EPA issued the Love Canal Sewer and Creek Remedial Alternative Evaluation and Risk Assessment, which evaluated risks posed by contamination in the creeks and sewers, further evaluated alternatives for remediating the creeks and presented a proposed remedial action plan.

In May 1985, EPA issued a ROD selecting a remedy to remediate the sewers and the creeks in the EDA. This ROD called for:

• Hydraulically cleaning the sewers;
• dredging and hydraulically cleaning the Black Creek culverts;
• removing Black and Bergholtz Creek sediments with dioxin concentrations exceeding one part per billion (ppb);
• construction of an on-site interim storage facility for the creek and sewer sediments; and,
• remediation of the 102nd Street outfall area (which was subsequently addressed under the remedial action for the 102nd Street Landfill Superfund site).

In August 1985, EPA issued the Long-Term Monitoring Program Design for the Love Canal Remedial Project which evaluated contamination in the area groundwater and effectiveness of the barrier drain and cap system. Hundreds of groundwater monitoring wells were installed between 1985 and 1987.

In 1986, the Superfund Amendments and Reauthorization Act (SARA) was enacted; Section 312 of SARA included specific provisions to address the significant program aspects of the Site. These included:

• Completion of a study of the habitability of the EDA, i.e., the LCHS.
• Acquisition of those properties within the EDA which were not eligible for government acquisition under the FEMA acquisition program.
• Maintenance of property acquired under the FEMA and EPA's SARA acquisition programs.
• Provision of technical assistance to the Love Canal Area Revitalization Agency (LCARA) to facilitate their efforts to revitalize the EDA. LCARA was a New York State Agency that was designated as the lead agency in the rehabilitation effort of the Love Canal EDA.

During 1986 and 1987, the remediation of the contaminated sewers was performed; this included the clean-out of 68,000 linear feet of storm and sanitary sewers. An on-site facility was constructed to dewater sewer contaminants. This remedial action conformed with the 1985 ROD, requiring the removal of dioxin-contaminated sediments from the creeks and sewers. Additional sewer cleanup was performed pursuant to the 1987 ROD (discussed below); the 1987 ROD also documented earlier elements of the sewer cleanup.

From 1987 until 1989, Black and Bergholtz Creeks were dredged of approximately 14,000 cubic yards of sediments. Clean riprap was placed in the creek beds, and the banks were replanted with grass. This remedial action conformed with the 1985 ROD, requiring the removal of dioxin-contaminated sediments from the creeks and sewers.

In June 1987, EPA issued the Alternatives for Destruction/Disposal of Love Canal Creek and Sewer Sediments report which provided various alternatives for the ultimate disposal of the sediments, described below in more detail.

In 1987, EPA entered into the first of two cooperative agreements with LCARA to implement the mandates of Section 312 of SARA/CERCLA. This first agreement dealt with EDA property acquisition. Under EPA's and other acquisition programs, including FEMA's, LCARA purchased over 600 properties in the EDA.

In October 1987, EPA issued a second ROD selecting a remedy to address the destruction and disposal of the dioxin-contaminated sediments from the sewers and creeks. The ROD called for:

• construction of an on-site facility to dewater the sewer and creek sediments and to contain the dewatered sediments;
• construction of a separate on-site facility to treat the dewatered sediments through high temperature thermal destruction;
• on-site thermal treatment of the residuals stored at the Site from the leachate treatment facility and other associated Love Canal waste materials; and,
• on-site disposal of any nonhazardous residuals from the thermal treatment or incineration process.

From 1987 until 1988, the LCHS sampling and evaluation were performed to evaluate air and soil contamination in the EDA and other comparison neighborhoods, using specific habitability criteria, as discussed above. Volume I—Final Report of the LCHS, Introduction and Decision-Making Documentation was issued in May 1988. The subsequent four volumes of data documentation were issued later. Volumes II and III presented the results of the assessment for the Love Canal indicator chemicals for air and soil. Volume IV presented the assessment of the dioxin soil assessment. Volume V summarizes the subsequent peer review of Volumes II-IV and the response to that peer review.

In September 1988, using the results of the LCHS, the New York State Commissioner of Health issued a Decision on Habitability, which identified appropriate land uses for the seven designated areas of the EDA. Areas 1-3 were declared not suitable for residential use, i.e., uninhabitable, but were suitable for commercial/industrial use. Areas 4-7 were deemed habitable, i.e., suitable for residential use.

In March 1988, EPA issued the 93rd St. School Remedial Investigation and Feasibility Study which evaluated the nature and extent of contamination at the 93rd St. School and provided alternatives for the remediation of the contamination.

In September 1988, EPA issued a third ROD which selected a remedy for contaminated soils at the 93rd Street School. The selected remedy included the following actions:

• excavation of approximately 7,500 cubic yards of contaminated soil adjacent to the school;
• on-site solidification and stabilization of the contaminated soils; and,
• return of the stabilized soils to the excavated area.

Prior to 1989, EPA, through its cooperative agreement with NYSDEC, provided funds for the maintenance of the abandoned properties in the EDA. Subsequently, in 1989, NYSDEC passed the responsibility for home maintenance to LCARA. At this time, EPA then entered into a second cooperative agreement with LCARA to implement the maintenance and technical assistance (MATA) mandates of Section 312 of CERCLA. Under this MATA agreement, EPA provided LCARA with funding to maintain improved and unimproved properties in the EDA and also to demolish EDA homes that had deteriorated to the extent that they presented safety concerns or a net loss to the overall value of the property. Over 250 homes were demolished under the MATA program.

EPA's technical assistance has supported LCARA's efforts to revitalize the EDA (EPA did not provide Federal funds for the actual repair or reconstruction of buildings within the EDA). LCARA sold approximately 260 homes in the EDA areas designated for residential use and prepared a master plan for the areas designated for commercial/industrial use.

In 1989, EPA issued an ESD to the 1985 and 1987 RODs, which specified that creek sediments were to be dewatered at creek side, placed in polyethylene bags and then transported to and stored at OCC's Resource Conservation and Recovery Act-permitted storage buildings at its Niagara Falls Main Plant, rather than at the Site, pending high temperature thermal destruction at OCC's Niagara Falls Main Plant. In addition, other Love Canal wastes, including the sewer sediments and other remedial wastes originally targeted for thermal treatment at the Site, were also to be thermally treated at OCC's Niagara Falls Main Plant rather than at the Site. OCC, the United States and the State of New York entered into an agreement, i.e., a partial consent decree, filed in U.S. District Court, to implement this modification to the 1985 and 1987 RODs.

In May 1991, EPA issued an amendment to the 1988 ROD for the 93rd Street School, which modified the selected remedy and called for excavation and off-site disposal of the contaminated soils, rather than disposal at the 93rd Street School site.

In September 1992, the contaminated soils at the 93rd Street School were excavated; these materials were used for alternate grading material for the 102nd Street Landfill Superfund site Remedial Action, i.e., subgrade material for the capping remedy.

In November 1996, EPA issued a second ESD for the 1987 ROD. This ESD authorized thermal treatment and/or land disposal of the stored Love Canal waste materials at an off-site commercial incinerator and landfill rather than at OCC's Niagara Falls Main Plant.

In February 1998, OCC began shipping the bagged Love Canal wastes from its storage facilities for disposal (thermal destruction or landfilling).

In December 1998, EPA issued a third ESD which provided notice that EPA granted a treatability variance to OCC to eliminate the requirement that the stored Love Canal waste materials containing dioxin at concentrations between 1 and 10 ppb be incinerated. As a result of this variance, these materials could be disposed at a commercial hazardous waste landfill without treatment.

In August 1999, this remedial action was completed and the remaining bags of wastes were shipped off-site for disposal. A total of 10,262 bags were land disposed in a Subtitle C facility and 5,234 bags were incinerated, with the resulting residues being landfilled at Subtitle C facilities.

LCARA completed its charge to revitalize the EDA and, in 2003, was subsequently dissolved by an act of the State legislature. At the present time, all residential and commercial properties in Areas 4-7 have been rehabilitated, sold by LCARA and restored to active use. LCARA rehabilitated and sold approximately 260 homes in the areas identified for residential use and prepared a master plan for the areas designated for commercial/industrial use. Certain parcels in EDA Areas 2-3 remain vacant, and these vacant properties are properly zoned and have deed restrictions which comply with the original Decision on Habitability, limiting use to commercial/industrial purposes only, unless remediated. These parcels were subsequently sold to real estate developers.

EPA, NYSDEC and the PRP used engineering consultants and contractors to perform the remedial design and/or construction for the Site. EPA and NYSDEC also performed oversight for activities conducted by the PRPs and their contractors, as well as EPA and NYSDEC contractors.

In 1982, EPA established a Public Information Office in downtown Niagara Falls to handle the Site, as well as other EPA Superfund sites in the Niagara Falls and Buffalo, New York area. All decisions made about the Site were conducted in a public forum, especially during the development of the LCHS, which included the monthly TRC meetings, as well as expert panel meetings, which were all open to the public. Residents of the EDA were informed of each meeting and were encouraged to attend. All associated minutes, reports and other documents generated during the more than 70 TRC meetings, as well as each expert panel meeting, et al., were made available to the public for review at the EPA offices in Niagara Falls. The final TRC meeting was held in 1991.

Institutional controls are in place in both the containment area of the Site and the EDA. New York State (NYS) has a permanent easement on the Site property, providing for the exclusive use and occupancy of the Site property. By Consent Decree, NYS granted OCC exclusive use and occupancy of the Site property for the purpose of providing continued O&M for the Site remedy. OCC retains exclusive use and occupancy, as long as the Consent Decree is in effect. The institutional controls on the vacant parcels in the non-habitable sections of the EDA (Areas 1-3) are maintained by zoning and deed restrictions. The deeds for these properties require that NYSDEC be notified both when these properties are sold and when these properties are being considered for any other use than commercial and/or light industrial. The deeds also state that all identified use limitations and restrictions of the property shall run with the land and bind the current owner and any successors in perpetuity or until such time as NYSDEC shall determine that such institutional controls are no longer necessary for the protection of public health and the environment. The deed also identifies that some soil remediation is required prior to any potential residential use.

Under the direction of NYSDEC, OCC, through its contractor Miller Springs Remediation Management, performs O&M of the Site remedy and maintains day-to-day operations at the Site, as identified in two separate consent decrees with NYS and the United States, respectively. The continued effectiveness of the remedy is monitored, pursuant to both consent decrees, as well as through the performance of EPA's five-year reviews.

A five-year review of Site remedies was completed on September 30, 2003. The five-year review ensures that the implemented remedies protect human health and the environment and that they function as intended by the decision documents.

EPA, in consultation with the State of New York, through the NYSDEC, has determined that all appropriate response actions, under CERCLA, have been implemented at the Site and no further response actions, other than monitoring, operation, maintenance and compliance with institutional controls, are necessary.

Hazardous substances remain at the Site above levels that would be allowed for unlimited use without restrictions. It is the policy of EPA to conduct five-year reviews of pre-SARA remedies which leave hazardous substances on-site. EPA completed a five-year review of this Site on September 30, 2003. The next five-year review should be completed by EPA and/or NYSDEC before September 30, 2008.

List of Subjects in 40 CFR Part 300

• Environmental protection
• Chemicals
• Hazardous substances
• Hazardous waste
• Intergovernmental relations
• Penalties
• Reporting and recordkeeping requirements
• Superfund
• Water pollution control
• Water supply

Dated: March 4, 2004.

Kathleen C. Callahan,

Acting Regional Administrator, Region 2.