06-5568. National Oil and Hazardous Substance Pollution Contingency Plan; National Priorities List Update

AGENCY:

Environmental Protection Agency.

ACTION:

Direct final notice of deletion of the Brio Refining, Inc. Superfund Site from the National Priorities List.

SUMMARY:

The United States Environmental Protection Agency (EPA) Region 6 is publishing a direct final notice of deletion of the Brio Refining, Inc. Superfund Site (Site), located in Friendswood, 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 notice of 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 August 22, 2006 unless EPA receives adverse comments by July 24, 2006. 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-1989-0008, by one of the following methods:

http://www.regulations.gov: Follow the on-line instruction for submitting comments.

E-mail: mail to [e-mail].

Fax: [phone].

Mail: Donn Walters, Community Outreach Team, U.S. EPA Region 6 (6SF-PO), 1445 Ross Avenue, Dallas, TX 75202-2733, [phone] or 1-800-533-3508.

Instructions: Direct your comments to Docket ID No. EPA-HQ-SFUND-1989-0008. EPA's 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 whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through or 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 comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov,, your e-mail address be automatically 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 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 are available either electronically in 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 Region 6 Library, 7th Floor, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733, [phone], Monday through Friday 9 a.m. to 12 p.m. and 1 p.m. to 4 p.m.; San Jacinto College, South Campus Library, 13735 Beamer Road, Houston, Texas, 77089, [phone], Monday through Thursday 8 a.m. to 9 p.m.; Friday 8 a.m. to 3 p.m.; Saturday 10 a.m. to 1 p.m.; Texas Commission on Environmental Quality (TCEQ), Central File Room Customer Service Center, Building E, 12100 Park 35 Circle, Austin, Texas, 78753, [phone], Monday through Friday 8 a.m. to 5 p.m.

FOR FURTHER INFORMATION CONTACT:

John C. Meyer, Remedial Project Manager (RPM), U.S. EPA Region 6 (6SF-LP), 1445 Ross Avenue, Dallas, TX 75202-2733, [phone] or 1-800-533-3508 ([e-mail]).

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 Brio Refining, Inc. 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 describes 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 August 22, 2006 unless EPA receives adverse comments by July 24, 2006 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 IV discusses the Brio Refining, Inc., Superfund Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action 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 release 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) responses 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 measure 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 which 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) Concurrently with the publication of this direct final notice of deletion, a notice of the 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 Brio Site is located almost 20 miles south of Houston, Texas, and occupies approximately 58 acres. The site is divided by Dixie Farm Road, with Brio North being historically used for storage purposes and Brio South being primarily used for processing activities. A neighboring residential subdivision (Southbend, now abandoned) is located along and north of the northern boundary of Brio North. Mud Gully, a flood control ditch and local tributary of Clear Creek, runs along the western boundary of the Site.

Site History

Processing activities began at the Site in the early 1950's and consisted of reclamation of petrochemicals from various source materials, most of which were residues, tank bottoms, and tars of other processes performed at off-site locations. Most of the feedback materials for processing at Brio were stored in on-site pits, many of which were located on Brio North. All of the pits were closed during site operations, which ceased in December 1982.

Remedial Investigation and Feasibility Study (RI/FS)

In 1985, EPA entered into an Administrative Order on Consent with the Brio Site Task Force (BSTF) to perform the RI/FS. The investigation focused on five predominant media: Soils in and around the closed impoundments, groundwater, above ground tanks, the waste water treatment system, and sewage sludge.

The investigations found that the majority of the contamination at the site is found within the location of the former storage pit areas. The pits were constructed within the uppermost geologic units designated the Upper Clay. This unit occurs across the entire site and ranges in depth from 14 to 32 feet. The RI/FS estimated the volume of contaminated soils associated with the former pits at approximately 200,000 cubic yards.

The three primary affected media at the site include ground water, surface soils, and subsurface soils. The principal contaminants of concern at the site are organic compounds and chlorinated solvent compounds. The contaminants include the following: 1,1,2-trichloroethane; 1,2-dichloroethane; 1,2-dichloroethene; 1,1-dichloroethene; 1,1-dichloroethane; vinyl chloride; bis-(2-chloroethyl) ether; and phenanthrene.

The risk assessment concluded that the site potentially poses four major risks to human health and the environment: Ingestion of on-site soils, direct contact with on-site soils, inhalation of dust from the site, and ingestion of shallow ground water from the site.

Record of Decision

Following the site investigations, EPA issued a Record of Decision (ROD) on March 31, 1988, that selected on-site incineration of pit residuals, removal of surface contamination, channel improvements to Mud Gully, demobilization of remaining process equipment and removal of debris on the site, removal of dense non-aqueous phase liquids (DNAPL) and pump and treat for groundwater in the numerous sand channel zone (NSCZ). The ROD addressed all the threats at the site as a single operable unit, including ground water contamination. A consent decree was entered in April 1991 between EPA and the BSTF for implementation of the ROD. A remedial design was performed by the BSTF and approved by EPA in July 1993. Demolition of the majority of the remaining process equipment was completed prior to mobilization of the incinerator.

A rotary kiln incinerator and support equipment were mobilized to the site following the demolition work. Temporary enclosures were erected over the pits requiring remediation in order to contain emissions during excavation. The incinerator began clean burn operations with imported material, and excavation began at Pit R on Brio South for shakedown operations and to stockpile material for the trial burn. Emission problems during excavation led to a “stop work” order until appropriate emission control equipment could be installed. Before additional controls could be installed, the BSTF submitted a force majeure claim which resulted in the decision by EPA to allow the dismantling of the incinerator. The incinerator and support equipment were demobilized by December 1994.

A focused feasibility study was initiated to evaluate alternatives to the incineration remedy selected in 1988. The EPA signed an Amended Record of Decision on July 2, 1997, selecting containment as the preferred alternative. The elements of the containment remedy included a vertical barrier wall, site cover, groundwater flow control and institutional controls.

Response Actions

In June 1989, an Administrative order on Consent was signed with the BSTF, to begin dismantlement of the process equipment on the site. The facility dismantlement was completed in December 1989. Material present in the process equipment and tanks was consolidated into remaining tanks. The process equipment and tanks were decontaminated and sent to an off-site smelter for reclamation.

A consent decree with a scope of work to implement the remainder of the ROD was entered by the Federal district court on April 4, 1991. A remedial design was completed in 1993 that addressed installation and operation of an incinerator to treat contaminated soils, sludges, and liquids above the action levels specified in the ROD.

In May 1993, surface water discharges were found to be occurring in Mud Gully. Characterization of the water and sediments in Mud Gully and Clear Creek found that chlorinated volatile organics were discharging from the Brio site in the area of Pit B in order to control the discharges of contaminated ground water to Mud Gully.

In December 1993, site preparation work for the mobilization of the incinerator began. This work included removal of the majority of the remaining tanks from the initial dismantling operation. The tanks were cleaned and sent off-site for smelting. A rotary kiln incinerator and support equipment were mobilized to the site following the demolition work. The incinerator was demobilized by December 1994 following EPA's decision to evaluate other alternatives for the Site.

During the time between the demobilization of the incinerator and the implementation of the containment alternative in the Amended ROD, several elements of construction continued. The elements included: Initiation and operation of DNAPL recovery; ground water extraction and treatment to prevent off-site migration to Mud Gully; removal of storage tanks and drums remaining at the site and off-site disposal of the contents; and closure of the waste water treatment system.

Construction of the remedial action pursuant to the Amended ROD began in July 2000 and was implemented in phases. Approximately 5900 lineal feet of slurry wall was constructed around the perimeter of the site from September to December 2000. The slurry wall was constructed by excavating a 30-inch wide trench to a depth that seals the wall into a low-permeable natural clay layer termed “Middle Clay Unit”(MCU). The depth of the slurry wall ranges from approximately 35 to 50 feet. Once the excavation achieved the proper depth, a backfill material (consisting of thoroughly mixed native soils and fresh slurry) was placed in the excavation.

The sheet pile barrier wall was installed from July 2001 to December 2001. The wall is approximately 1,781 feet long and varies in depth from 35 to 50 feet below ground surface. The wall was installed to designed depths into the low-permeable natural clay layer and in conjunction with the slurry wall completed the vertical barrier wall component of the Amended ROD.

The cover system was divided into two major components: Brio North and Brio south. The two areas are divided by Dixie Farm Road and separate borrow pit areas were developed in order to minimize truck traffic over the road. The Brio South cover was initiated first due to its smaller size. The Brio South cover system was constructed from May 2001 to February 2002. An additional compacted clay layer was extended over a segment of the adjacent Dixie Oil Processors (DOP) South site to provide controlled surface water runoff. The Brio North cover system was constructed from December 2001 to September 2003.

The improvements to Mud Gully were done under the jurisdiction of the Harris County Flood Control District and were completed in June 2003. The improvements included realignment of the gully, lining with articulated concrete blocks, and a topsoil cover with vegetation.

A ground water control system was installed that included a water treatment plant, extraction wells, and extensive piping and utilities. The system includes 17 extraction wells to control the hydraulic gradient and 21 monitoring wells to determine compliance with the performance standards.

A pre-certification inspection was conducted by EPA on March 11, 2004, to determine if all the elements of the remedial action met the construction requirements of the Amended ROD and the remedial design. EPA prepared a preliminary closeout report to document the attainment of construction completion and issued the report on April 28, 2004. A final inspection was conducted on April 20, 2006, and EPA found that all elements fo the remedy had been successfully constructed and were operating in accordance with approved plans.

Operation and Maintenance (O&M)

In March 2004, the BSTF submitted a Monitoring, Operation and Maintenance (MO&M) Plan for the site. EPA approved the plan on May 20, 2004. The purpose of the MO&M Plan is to document procedures to be used to assess the long-term success of the site remedy while minimizing adverse natural or man-made impacts on the site. The plan requires (i) operation of the groundwater recovery and treatment system, (ii) operation of the gas collection and recovery system, (iii) monitoring and maintenance of the cover system, and (iv) monitoring of the environmental media (soil, ground water, and air). The plan includes an institutional control plan that provides for deed restrictions on all properties within the site boundary where property owners could be located, and deed notices on properties where the land owner was recalcitrant. The requirements of the institutional control plan have been completed through a Grant of Environmental Deed Restriction and Right of Access, which was recorded August 30, 2005, in the Harris County real property records.

Five-Year Review

Consistent with Section 121(c) of the CERCLA and requirements of the OSWER Directive 9355.7-03B-P (“Comprehensive Five-Year Review Guidance”, June 2001), a five-year review is required at this Site. The Directive requires EPA to conduct statutory five-year reviews at sites where, upon attainment of ROD cleanup levels, hazardous substances remaining within restricted areas onsite do not allow unlimited use of the entire site.

Since hazardous substances remain onsite, this Site is subject to five-year reviews to ensure the continued protectiveness of the remedy. Based on the five-year results, EPA will determine whether human health and the environment continue to be adequately protected by the implemented remedy. Five-year reviews were completed on January 8, 1998, and May 13, 2003. The reviews found that the remedy remains protective of human health and the environment.

Community Involvement

Public participation activities have been satisfied as required in CERCLA Section 113(k), 42 U.S.C. 9613(k), and CERCLA Section 117, 42 U.S.C. 9617. Documents in the deletion docket which EPA relied on for recommendation of the deletion from the NPL are available to the public in the 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 August 22, 2006 unless EPA receives adverse comments by July 24, 2006. 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

Dated: May 25, 2006.

Richard E. Greene,

Regional Administrator, Region 6.

For the reasons set out in this document, 40 CFR part 300 is amended as follows:

PART 300—[AMENDED]

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]

2. Table 1 of Appendix B to Part 300 is amended under Texas (“TX”) by removing the entry for “Brio Refining, Inc.”.