[Federal Register Volume 63, Number 69 (Friday, April 10, 1998)]
[Notices]
[Pages 17858-17859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-9702]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5995-6]
Proposed CERCLA Administrative Cost Recovery Settlement Pursuant
to the Comprehensive Environmental Response, Compensation, and
Liability Act; City of Toledo, Toledo, OH
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice; request for public comment.
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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 a proposed
administrative settlement by consent (AOC), pursuant to CERCLA sections
106(a), 107(a) and 122(h), 42 U.S.C. 9606(a), 9607 and 9622, concerning
the XXKem Site in Toledo, Ohio. The City of Toledo is the Respondent to
the proposed AOC.
The settlement requires that the City of Toledo design, construct,
and demonstrate the performance of a leachate extraction system at the
XXKem facility in Toledo. Operation and maintenance of the system will
be performed by other parties. The work to be performed is necessary to
address the potential threat to human health and the environment posed
by the release of hazardous substances at or from the central portion
of the XXKem facility.
The proposed settlement includes U.S. EPA's covenant not to sue or
take administrative action against the City of Toledo pursuant to
sections 106(a) and 107(a) of CERCLA, 42 U.S.C. 9606(a) and 9607(a),
for the work to be performed, and for the recovery of U.S. EPA's past
response costs, oversight costs, the Stickney-related work at the XXKem
Site, and future work and future response costs at the central portion
of the XXKem facility. Contribution protection under the order is co-
extensive with the covenant not to sue. The U.S. EPA's authority to
enter into this administrative settlement agreement was conditioned
upon the approval of the Attorney General of the United States (or her
delegatee); this approval has been obtained.
For thirty (30) days following the date of publication of this
notice, the Agency will receive written comments relating to the
settlement. The Agency will consider all comments received and may
modify or withdraw its consent to the settlement if comments received
disclose facts or considerations which indicate that the settlement is
inappropriate, improper, or inadequate. The Agency's response to any
comments received will be available for public inspection at the 7th
Floor Records Center, (for address, see below).
DATES: Comments must be submitted on or before May 11, 1998.
ADDRESSES: The proposed Administrative Order by Consent (``AOC''),
embodying the settlement agreement, and additional background
information relating to the settlement are available for public
inspection at the U.S. Environmental Protection Agency, Region 5,
Superfund Division Records Center, 77 West Jackson Boulevard, 7th
Floor, Chicago, Illinois 60604. A copy of the proposed AOC may be
obtained from Sherry L. Estes (for address, see below). Comments should
be sent to Ms. Estes and should reference the City of Toledo AOC for
the XXKem facility, Toledo, Ohio.
FOR FURTHER INFORMATION CONTACT: Sherry L. Estes, Office of Regional
Counsel, Mail Code C-14J, U.S. Environmental Protection Agency, 77 West
Jackson Boulevard, Chicago, Illinois 60604, or (312) 886-7164.
SUPPLEMENTARY INFORMATION:
A. Background
The central portion of the XXKem facility, comprised of 5.5 acres,
is located at 3903-05 Stickney Avenue and is bordered on the north by
the Stickney Avenue Landfill, in Lucas County, Toledo, Ohio. XXKem was
formerly occupied by companies which performed waste solvent and waste
oil fuel blending operations. The City of Toledo also disposed of
wastewater treatment plant sludge within the facility's disposal
lagoon. The disposal lagoon was closed pursuant to a 1981 Consent
Decree between the State of Ohio and the then-site operator. However,
the sludge at the bottom of the lagoon was left on site. In 1994, part
of the sampling conducted during the Engineering Evaluation/Cost
Analysis (EE/CA) for the Stickney Avenue Landfill analyzed non-aqueous
phase liquid beneath the Stickney site and immediately adjacent to the
central portion of the XXKem facility. These results revealed hazardous
substances had migrated in groundwater from the closed lagoon to
Stickney, with the ultimate discharge point being the Ottawa River.
Under a cooperative agreement with U.S. EPA, the Ohio Environmental
Protection Agency (OEPA) conducted an Expanded Site Inspection (ESI)
and a Supplemental ESI of the XXKem Site in 1994 and 1995,
respectively. As part of the Supplemental ESI, subsurface soil and
[[Page 17859]]
groundwater samples were collected. The analytical results revealed the
presence of high concentrations of hazardous substances, including
volatile organic compounds (VOCs), semivolatile organic compounds
(SVOCs), polychlorinated biphenyls (PCBs), pesticides, and metals in
soils and groundwater at the central portion of the XXKem facility.
The Enforcement Action Memorandum for the Stickney Avenue Landfill
(Stickney EAM), dated January 22, 1996, also included a response action
decision for the central portion of the XXKem facility. The Stickney
EAM calls for the construction of a multi-layer landfill cover system,
compliant with the functional requirements of the Ohio Solid Waste
regulations, over the closed lagoon area, and a landfill gas collection
system, with passive venting to the atmosphere. Upon review of the soil
and groundwater data from the Supplemental ESI and consultation with
OEPA, both U.S. EPA and OEPA do not now believe that the extension of
the Stickney cover system over the former waste disposal lagoon alone
will adequately address the potential impact of contamination in the
former lagoon at the XXKem facility on the Stickney Site and the Ottawa
River.
These data, and U.S. EPA's proposed response to the potential
environmental threat resulting from the contamination found in the
closed lagoon area, are set forth in a document entitled, ``A Summary
of Response Alternatives for the XXKem Site,'' (XXKem Summary) which
was released for public comment between February 7 and March 9, 1998.
On April 8, 1998, U.S. EPA issued an Enforcement Action Memorandum for
the XXKem Site (XXKem EAM). Responses to the substantive comments
received during the public comment period on the XXKem Summary are set
forth in the Responsiveness Summary of the XXKem EAM.
B. Settling Parties
Proposed settling party: The City of Toledo, a municipal
corporation.
C. Description of Settlement
In exchange for the U.S. EPA's covenant not to sue, the Respondent
City of Toledo agrees to design, construct and demonstrate the
performance of a leachate extraction system at the central portion of
XXKem facility. However, the City of Toledo's obligation to conduct the
performance demonstration of the system terminates once the City has
expended $375,000 total on the work required by the AOC. U.S. EPA
estimates that all of the work required by the AOC can be completed for
$375,000, and that the work requirements of the AOC are commensurate
with the City's responsibility for the contamination at XXKem. It
should be noted that the City is responsible for the installation of
the leachate extraction system without regard to the $375,000 limit.
U.S. EPA also considered Toledo's status as a Respondent to the
February 27, 1998, Administrative Order by Consent for the Stickney/
Tyler Sites (Stickney/Tyler AOC) and its resulting financial
contribution toward the work currently underway at these sites.
The proposed settlement includes U.S. EPA's covenant not to sue or
take administrative action against the City of Toledo pursuant to
sections 106(a) and 107(a) of CERCLA, 42 U.S.C. 9606 and 9607, for the
work to be performed, and for the recovery of U.S. EPA's past response
costs, oversight costs, SWAXS work (Stickney Work at XXKem Site), and
future work and future response costs at the central portion of the
XXKem facility. Contribution protection under the order is co-extensive
with the covenant not to sue, to the extent provided by sections
113(f)(2) and 122(h)(4) of CERCLA, 42 U.S.C. 9613(f)(2) and 9622(h)(4).
In the proposed AOC, the United States reserves its rights to take
further proceedings against Toledo if the total costs of response at
the XXKem Site exceed $4.5 million. The settlement also contains re-
opener provisions for unknown conditions and new information, which are
analogous to the re-opener provisions contained in the model RD/RA
consent decree.
D. Relationship of This Proposed AOC to Stickney/Tyler AOC
In accordance with the Stickney EAM, the Stickney/Tyler AOC action
requires the construction of a multi-layer cover system over the
central portion of the XXKem facility. The City of Toledo is a
respondent under the Stickney/Tyler AOC. However, the contribution
protection section of the Stickney/Tyler AOC provides that claims for
the XXKem site are reserved. Thus, for the work that will be conducted
at XXKem, the Stickney/Tyler AOC respondents may pursue contribution
claims against each other and against non-respondents, and,
correspondingly, will be vulnerable to contribution claims from non-
respondents. With the successful completion of the work to be performed
pursuant to the proposed Toledo AOC, the City, alone among the
Stickney/Tyler respondents, will be protected from contribution claims
for XXKem, unless and to the extent that total site costs at XXKem
exceed the re-opener amount of $4.5 million.
Dated: April 6, 1998.
William E. Muno,
Director, Superfund Division.
[FR Doc. 98-9702 Filed 4-9-98; 8:45 am]
BILLING CODE 6560-50-P
