510 Federal Register / Vol. 76, No. 3 / Wednesday, January 5, 2011 / Proposed Rules 

allotments, the Indian titles to which have not been 

extinguished, including rights-of-way running 

through the same. Under this definition, EPA treats 

as reservations trust lands validly set aside for the 

use of a Tribe even if the trust lands have not been 

formally designated as a reservation. In Idaho, 

Indian country includes, but is not limited to, the 

Coeur d’Alene Reservation, the Duck Valley 

Reservation, the Reservation of the Kootenai Tribe, 

the Fort Hall Indian Reservation, and the Nez Perce 

Reservation as described in the 1863 Nez Perce 

Treaty. 

EPA proposes that this SIP approval not 

extend to ‘‘Indian Country’’ in Idaho. See 

CAA sections 110(a)(2)(A) (SIP shall 

include enforceable emission limits), 

110(a)(2)(E)(i) (State must have adequate 

authority under State law to carry out 

SIP), and 172(c)(6) (nonattainment SIPs 

shall include enforceable emission 

limits). This is consistent with EPA’s 

previous approval of Idaho’s SIP 

revisions, in which EPA specifically 

disapproved the program for sources 

within Indian Reservations in Idaho 

because the State had not shown it had 

authority to regulate such sources. See 

40 CFR 52.683(b). It is also consistent 

with EPA’s approval of Idaho’s title V 

air operating permits program. See 61 

FR 64622, 64623 (December 6, 1996) 

(interim approval does not extend to 

Indian Country); 66 FR 50574, 50575 

(October 4, 2001) (full approval does not 

extend to Indian Country). 

V. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this proposed 

action merely approves state law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Reporting and recordkeeping 

requirements. 

Dated: December 22, 2010. 

Dennis J. McLerran, 

Regional Administrator, Region 10. 

[FR Doc. 2010–33281 Filed 1–4–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 300 

[EPA–HQ–SFUND–1994–0001; FRL–9246–9] 

National Oil and Hazardous 

Substances Pollution Contingency 

Plan; National Priorities List: Partial 

Deletion of the AT&SF Albuquerque 

Superfund Site 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: The U.S. Environmental 

Protection Agency (EPA) proposes to 

delete, from the National Priority List 

(NPL), 40 CFR part 300, appendix B, 62 

acres of the AT&SF Albuquerque 

Superfund Site (Site). The Site is 

located in Albuquerque, Bernalillo 

County, New Mexico. After this 

deletion, this 62 acres will no longer be 

part of the Site and only the 27 acres 

making up the southern half of the Site 

will remain a listed Superfund Site (see 

the Environmental Protection Easement 

and Declaration of Restrictive Covenants 

in the docket). The only contaminated 

medium that was identified on the 

northern 62 acres of the Site was soil. 

This soil was remediated so that the 

concentration levels of hazardous 

substances that remain are consistent 

with future industrial or commercial 

use. This notice of intent for partial 

deletion is being published by EPA with 

the concurrence of the State of New 

Mexico, through the New Mexico 

Environment Department (NMED), 

because EPA has determined that all 

appropriate response actions for this 

parcel under CERCLA, other than 

operation, maintenance, and five-year 

reviews, have been completed. 

However, this partial deletion does not 

preclude future actions under 

Superfund. 

DATES: Comments must be received by 

February 4, 2011. 

ADDRESSES: Submit your comments, 

identified by Docket ID no. EPA–HQ– 

SFUND–1994–0001, by one of the 

following methods: 

• http://www.regulations.gov: Follow 

on-line instructions for submitting 

comments. 

• E-mail: coltrain.katrina@epa.gov. 

• Fax: 214–665–6660, Attention: 

Katrina Higgins-Coltrain. 

• Mail: Katrina Higgins-Coltrain, 

Remedial Project Manager, U.S. EPA 

Region 6 (6SF–RL), 1445 Ross Avenue, 

Dallas, TX 75202–2733. 

• Hand delivery: U.S. Environmental 

Protection Agency, Region 6, 1445 Ross 

Avenue, Dallas, Texas 75202–2733. 

Such deliveries are only accepted 

during the Docket’s normal hours of 

operation, and 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 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 http:// 


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www.regulations.gov 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 will 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 at http:// 

www.regulations.gov or in hard copy at: 

• U.S. EPA Region 6 Library, 7th 

Floor, 1445 Ross Avenue, Suite 1200, 

Dallas, Texas 75202–2733, (214) 665– 

6424; 

• Albuquerque Public Library, Main 

Downtown Branch, 501 Copper Avenue, 

NW., Albuquerque, New Mexico 87102, 

Contact: John Vittal; and, 

• New Mexico Environment 

Department, Harold Runnels Building, 

1190 St. Francis Drive, Santa Fe, New 

Mexico 87505. 

FOR FURTHER INFORMATION CONTACT: 

Katrina Higgins-Coltrain, Remedial 

Project Manager (RPM), U.S. EPA 

Region 6 (6SF–RL), 1445 Ross Avenue, 

Dallas, TX 75202–2733, (214) 665–8143 

or 1–800–533–3508 

(coltrain.katrina@epa.gov). 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Introduction 

II. NPL Deletion Criteria 

III. Deletion Procedures 

IV. Basis for Partial Site Deletion 

I. Introduction 

EPA Region 6 is publishing this notice 

of intent to delete the soil and ground 

water associated with the northern 62- 

acre parcel of the AT&SF Albuquerque 

Superfund Site (Site) from the NPL and 

requests public comment on this 

proposed action. The NPL constitutes 

Appendix B of 40 CFR part 300, which 

is the NCP, which EPA promulgated 

pursuant to section 105 of 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). 

This partial deletion of the 62-acre 

parcel of the AT&SF Albuquerque 

Superfund Site (EPA Site Identification 

number NMD980622864) is proposed in 

accordance with 40 CFR 300.425(e) and 

is consistent with the Notice of Policy 

Change: Partial Deletion of Sites Listed 

on the National Priorities List. 60 FR 

55466 (Nov. 1, 1995). As described in 

§ 300.425(e)(3) of the NCP, sites deleted 

from the NPL remain eligible for Fundfinanced remedial actions if future 

conditions warrant such actions. 

EPA will accept comments 

concerning its proposal for partial 

deletion for thirty (30) days from the 

date of publication in the Federal 

Register. 

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 AT&SF Albuquerque 

Superfund Site and demonstrates how 

the northern 62-acre parcel meets the 

partial deletion criteria. 

II. NPL Deletion Criteria 

The NCP establishes the criteria that 

EPA 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 such a 

determination pursuant to 40 CFR 

300.425(e), EPA will 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 

response 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 measures is not appropriate. 

Pursuant to CERCLA section 121(c) 

and the NCP, EPA conducts five-year 

reviews to ensure the continued 

protectiveness of remedial actions 

where hazardous substances, pollutants, 

or contaminants remain at a site above 

levels that allow for unlimited use and 

unrestricted exposure. EPA conducts 

such five-year reviews even if a site is 

deleted from the NPL. EPA may initiate 

further action to ensure continued 

protectiveness at a deleted site if new 

information becomes available that 

indicates it is appropriate. 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 northern 62-acre parcel 

of the Site: 

(1) EPA consulted with the State of 

New Mexico, through the NMED, prior 

to developing this notice of intent for 

partial deletion. 

(2) EPA has provided the state 30 

working days for review of this notice 

prior to today’s publication; 

(3) In accordance with the criteria 

discussed above, EPA has determined 

that no further response is appropriate; 

(4) The State of New Mexico, through 

the NMED, concurred with the intent for 

partial deletion of the northern 62-acre 

parcel of the AT&SF Albuquerque 

Superfund Site from the NPL by letter 

dated November 4, 2010; 

(5) Concurrently with the publication 

of this Notice of Intent for Partial 

Deletion in the Federal Register, a 

notice is being published in the major 

local newspaper, Albuquerque Journal. 

The newspaper notice announces the 

30-day public comment period 

concerning the notice of intent for 

partial deletion of the Site from the 

NPL. 

(6) The 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. 

If comments are received on this 

document within the 30-day public 

comment period, EPA will evaluate and 

respond appropriately to the comments 

before making a final decision to 

partially delete the northern 62-acre 

parcel. If necessary, EPA will prepare a 

Responsiveness Summary to address 

any significant public comments 

received. After the public comment 

period, if EPA determines it is still 

appropriate to partially delete the 

northern 62-acre parcel of the AT&SF 

Albuquerque Superfund Site, the 

Regional Administrator will publish a 


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final Notice of Partial Deletion in the 

Federal Register. Public notices, public 

submissions and copies of the 

Responsiveness Summary, if prepared, 

will be made available to interested 

parties and included in the Site 

information repositories listed above. 

Deletion of a portion of a site from the 

NPL does not itself create, alter, or 

revoke any individual’s rights or 

obligations. Deletion of a portion 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 the northern 

62-acre parcel of the AT&SF 

Albuquerque Superfund Site from the 

NPL. 

Site Background and History 

The AT&SF Albuquerque Superfund 

Site (Site) is located at 3300 Second 

Street, SW., in the South Valley area of 

the City of Albuquerque, Bernalillo 

County, New Mexico. It is the location 

of the former The Atchison, Topeka and 

Santa Fe Railway Company Tie Treating 

Plant (facility) where creosote and other 

compounds were used in the wood 

preservation process. The Burlington 

Northern and Santa Fe Railway 

Company (BNSF Railway), a successor 

railroad corporation to the Atchison, 

Topeka and Santa Fe Railway Company 

(AT&SF) and a wholly owned 

subsidiary of the Burlington Northern 

Santa Fe Corp., is the owner of the Site. 

Although, the Site encompasses 

approximately 89 acres, the former 

treatment process area was primarily 

located on the southern 27-acre parcel, 

and the tie storage area was primarily 

located on the northern 62-acre parcel. 

A detailed map and coordinates of the 

northern 62-acre parcel (actual size is 

62.6121 acres) is located in the deletion 

docket. The Site was proposed for 

inclusion on the EPA NPL October 14, 

1992 [57 FR 47204] and made final on 

December 16, 1994 [59 FR 65212, 65221 

(December 16, 1994)]. The EPA Site 

Identification number is 

NMD980622864. 

The facility operated as a wood 

pressure treatment plant from March 

1908 to January 1972. The facility 

primarily used creosote and creosote 

petroleum mixtures for the manufacture 

of pressure treated wood products, 

including railroad cross ties, bridge ties, 

switch ties, bridge timbers, road 

crossing materials, bridge piling 

materials, lumber, stock pen posts and 

fence posts. From 1914 through 1926, 

some materials were treated with zinc 

chloride, followed by a creosotepetroleum mixture. Additionally, 

documents from the 1950s and early 

1960s refer to experiments and small 

scale projects performed using solutions 

containing 2% to 10% 

pentachlorophenol. In 1972, the plant 

was totally dismantled, and the only 

physical feature remaining on-site was 

the wastewater reservoir/wastewater 

sump. 

The Site can be divided into five 

general areas of environmental impacts 

from the plant’s former wood treating 

operations. The plant treatment process 

area covered approximately 27 acres of 

the facility and included four areas of 

environmental impact: The wood 

treatment area, the drip tracks, the 

wastewater reservoir, and the 

wastewater discharge ditch. The 

remaining area of environmental impact 

was the tie storage area which was 

located on the northern 62 acres. The 

northern 62 acres is the area proposed 

for partial deletion; therefore, the 

following discussion pertains to actions 

taken on the northern 62-acre parcel. 

In 1996, three areas were excavated 

from the northern 62-acre tie storage 

area, and were backfilled with clean soil 

after confirmation testing. 

In 1987, approximately 25 acres of the 

northern 62-acre tie storage area were 

redeveloped for industrial purposes by 

BNSF. This redevelopment occurred 

when an auto unloading facility, with 

an associated intermodal ramp for 

unloading and loading containers and 

trailers on railcars, was built. It is an 

active facility currently in operation. 

The northern 62-acre parcel also 

includes an estimated 17- to 20-acre 

parcel under consideration for purchase 

by an industrial concrete distribution 

company (company). BNSF and the 

company retain an open dialogue 

regarding the potential parcel sale and 

redevelopment. 

Remedial Investigation and Feasibility 

Study (RI/FS) 

The field investigation was 

considered a comprehensive approach 

that addressed the Site as one operable 

unit. From 1987 to 1999, five distinct 

phases of investigation were completed 

to define the extent of impact on soil 

and ground water. The field activities 

included sampling and characterization 

through geophysical surveys, hand 

auger, direct push, cone penetrometer, 

drill rig, ground water monitoring well 

installation (permanent and temporary), 

aquifer tests, and ground water 

modeling. 

Ground Water Contamination 

The CERCLA RI/FS for the Site was 

conducted under an Administrative 

Order on Consent entered between the 

EPA and AT&SF (now BNSF) in 1994. 

The RI/FS was completed by TRC 

Environmental Corporation in 2001 for 

BNSF and was approved by the EPA. 

Among the findings of the RI/FS was the 

fact that most of the organic 

contamination found at the Site occurs 

as a dense non-aqueous phase liquid 

(DNAPL) containing organic compounds 

that slowly dissolve into the ground 

water and preferentially adsorb to soil 

particles in the aquifer matrix. The RI 

report indicates that DNAPL is present 

in the subsurface as either ‘‘free phase’’ 

or ‘‘residual phase’’. The free phase is 

that portion of the DNAPL that can 

continue to migrate and sink into the 

aquifer, whereas the residual phase is 

that portion of the DNAPL that is 

trapped in pore spaces by capillary 

forces and cannot generally migrate as a 

separate liquid. Both occurrences of the 

DNAPL act as continuing sources of 

contamination to ground water. The RI 

estimated that there are between 59,300 

and 70,000 gallons of DNAPL associated 

with the southern 27-acre plant 

treatment process area and adjacent 

southern property. No identified 

DNAPL sources or related ground water 

contamination were identified in the 

three ground water zones underlying the 

northern 62-acre parcel. Ground water 

contamination associated with the 

southern 27-acre parcel is not expected 

to impact the ground water underlying 

the northern 62-acre parcel due to 

current ground water flow in the eastsoutheast direction and the placement 

of institutional controls restricting 

ground water extraction within the 

northern 62-acre parcel. 

Soil Contamination 

As expected, the nature of 

contamination across the Site is fairly 

typical of a wood treating operation. 

These contaminants consist of 

polynuclear aromatic hydrocarbons. In 

addition, zinc contamination of the soil 

was identified in the process area. The 

RI estimated that the volume of 

contaminated soil was 5,600 cubic 

yards. Although the plant used 

pentachlorophenol in the 1960s, its use 

is not believed to be as significant as the 

use of other preservatives at the plant, 

as there have not been significant levels 

of associated 2,3,7,8-tetrachlorodibenzo-para-dioxin (TCDD or dioxin) 


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detected in wastes present at the Site. 

As such, dioxin is not considered a 

contaminant of concern (COC) at this 

Site. 

The northern 62-acre parcel was used 

as the tie storage area. This area was 

where the treated ties were stored and 

allowed to dry. Releases to this area 

would be restricted largely to drippings 

from treated products. Creosote 

drippings would accumulate at 

locations where ties were repeatedly 

stacked, but these accumulations may 

tend to dry out between loads. With the 

advent of vapor drying in 1953, the 

amount of drippings was reduced to 

some extent. 

The tie storage area was investigated 

in two stages. However, prior to these 

stages, six shallow boreholes were hand 

augered to a depth of 18 inches and a 

composite sample was collected and 

analyzed for semivolatile organics and 

arsenic. This was followed by a grid 

investigation of this area in October 

1994, which included an additional 24 

locations. 

Using a grid layout, 24 shallow 

hollow-stem auger boreholes were 

logged continuously to a depth of 5 feet. 

The first sample was collected from the 

first natural soil encountered below any 

fill material, usually at a depth of 

approximately 3 inches to 2 feet. If a 

clay or silt layer was encountered in the 

upper 2 feet of soil, a sample was 

collected from the top of this layer. Of 

the 24 sample locations, one sample was 

collected at each of 19 locations and two 

samples were collected at each of five 

locations. Results from the 24 sample 

locations were compared to the Agency 

for Toxic Substances and Disease 

Registry (ATSDR) health-based 

concentrations for creosote constituents 

considered by ATSDR to be a potential 

threat to public health if exceeded. 

Three locations were identified with 

concentrations of one or more creosote 

constituents above the ATSDR healthbased concentration. These health-based 

concentrations were being used as the 

screening comparison criteria at the 

time of the 62-acre tie storage area 

investigation because the preliminary 

remediation goal (PRG) of 8 mg/kg 

benzo(a)pyrene (BAP) equivalent had 

not yet been derived. However, when 

the PRG was issued, the data from the 

24 sample locations were reviewed and 

compared with the 8 mg/kg BAP 

equivalent PRG. This resulted in the 

identification of the same three areas of 

concern originally identified during the 

investigation. No additional sample 

locations exceeded the 8 mg/kg BAP 

equivalent PRG. 

Based upon the results of this first 

stage, the three areas of concern 

underwent a second investigation in 

March 1995. Using the 8 mg/kg BAP 

equivalent PRG, the soil from areas with 

high concentrations of creosote 

constituents was excavated and 

stockpiled inside the southern 27-acre 

fenced area to be managed as part of the 

soil remediation in July 1996. Depths of 

excavation ranged from 2 to 7 feet, and 

confirmation samples did not identify 

exceedances of the PRG of 8 mg/kg BAP 

equivalent. The highest BAP equivalent 

reported for soil was 0.572 mg/kg, while 

the highest zinc concentration reported 

for soil was 55.6 mg/kg. 

The removal of soil from the northern 

62-acre tie storage area in 1996 was 

motivated by BNSF’s plans to expand its 

auto unloading facility. The future land 

use for this area was anticipated to be 

industrial. BNSF expected that the 

available land would be developed into 

a railroad switching yard and an 

expansion to the intermodal facility 

used for unloading automobiles from 

railcars. However, these plans for 

construction are no longer considered 

viable by BNSF. 

Selected Remedy 

The Record of Decision (ROD) was 

signed on June 27, 2002. The principal 

threat and low-level threat wastes at the 

Site were to be addressed through insitu solidification/stabilization and runoff/run-on management for soil; an 

aggressive performance-based approach 

for remediation of contaminated ground 

water consisting of ground water 

restoration through pump and treat and 

DNAPL source removal with hot spot 

treatment; and institutional controls. 

Based on RI data and subsequent ground 

water sampling, ground water 

contamination was not identified under 

the northern 62-acre parcel. Therefore, 

the only medium of concern for the 

northern 62-acre parcel was soil. As 

such, only the soil remedial action 

objectives and associated cleanup levels 

selected in the ROD are presented here. 

[The ROD was later amended through 

an Explanation of Significant 

Differences; however, these changes did 

not effect the northern 62-acre parcel 

and were specific to the southern 27- 

acre parcel.] The selected cleanup levels 

for soil are 7.8 mg/kg BAP equivalent 

based on an industrial/commercial use 

scenario and 200 mg/kg zinc based on 

an ecological scenario. The selected 

Remedial Action Objectives for soil 

included: 

• Prevent the ground water from 

being impacted above the maximum 

contaminant levels through transport of 

COCs from the unsaturated zone. 

• Prevent storm water runoff from 

areas that exceed any remediation goals. 

• Prevent the inhalation, ingestion, 

and dermal contact of contaminated 

soils for future on-site commercial/ 

industrial/utility workers exposed to the 

soil. 

• Prevent contaminated soils from 

becoming airborne and leaving the Site 

as dust. 

• Prevent ecological receptors from 

being adversely impacted by on-site 

contamination. 

The selected remedial action (RA) 

would not result in the Site being 

available for unlimited use and 

unrestricted exposure because Site 

contaminants in the soil will only be 

addressed to levels protective of future 

industrial or commercial use. As 

specified in the ROD, five-year reviews 

as well as operation and maintenance 

and institutional controls (ICs) will be 

necessary for this RA, and will include 

both the 62- and 27-acre parcels. 

On February 27, 2008, an 

Environmental Protection Easement and 

Declaration of Restrictive Covenants 

was filed by BNSF, after approval by 

EPA and NMED, and recorded by the 

County Clerk of Bernalillo County, New 

Mexico. These ICs run with the land 

and restrict the use or development of 

the Site property and the use or 

development of ground water on or 

underlying the property. Specifically, 

the ICs prevent any use or development 

that would threaten or damage remedial 

components on the Site, which would 

include potential damage to the cap or 

underlying in-situ solidified/stabilized 

contaminated soil. Further, at least 30 

days prior to any development or 

property conveyance, the EPA and 

NMED shall be notified in writing. 

Further, any development within the 

27-acre southern parcel of the Site 

requires prior EPA review and written 

approval of development, along with 

certification that remediation goals have 

been met. Regardless of any 

development or property conveyance, 

BNSF’s obligations under the Consent 

Decree for Site cleanup remain in effect, 

and the Site, including both the 27- and 

62-acre parcels, remains subject to 

inspections and five-year reviews. 

In addition to the Environmental 

Protection Easement and Declaration of 

Restrictive Covenants, the New Mexico 

Office of the State Engineer instituted a 

temporary IC in the form of a 

moratorium on new permits for ground 

water wells within a 200-ft buffer zone 

of the currently identified ground water 

plume surface area while remedial 

action is being performed. This 

moratorium was filed on January 29, 

2009, to protect human health and 

minimize interference with the ground 

water remediation activities taking place 


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514 Federal Register / Vol. 76, No. 3 / Wednesday, January 5, 2011 / Proposed Rules 

on the adjacent 27-acre parcel until all 

ground water remediation goals have 

been met. This moratorium will remain 

enforceable until ground water remedial 

action goals associated with the 

southern 27-acre parcel are met. 

Data collected during the RI, in 

conjunction with the excavation of soil 

from the three areas of concern within 

the northern 62-acre tie storage 

treatment area, indicate that the soil and 

ground water meet the cleanup levels 

established in the ROD. Although a PRG 

of 8 mg/kg BAP equivalent was used 

during the RI soil excavation, the RI 

data and subsequent confirmation 

sample results were compared with the 

ROD soil cleanup levels of 7.8 mg/kg 

BAP equivalent and 200 mg/kg zinc to 

ensure that the RI soil excavation met 

the soil cleanup levels in the ROD. The 

highest BAP equivalent reported for soil 

was 0.572 mg/kg, while the highest zinc 

concentration reported for soil was 55.6 

mg/kg. These confirmation soil data 

results meet the ROD cleanup levels. No 

ground water contamination exceeding 

the ROD ground water cleanup levels 

for the northern 62-acre parcel was 

identified. 

Due to its proximity to the adjacent 

rail line, an estimated 17- to 20-acre 

parcel of the northern 62-acre parcel is 

being considered for purchase from 

BNSF by an industrial concrete 

distribution company (company). In 

support of the redevelopment potential 

and ongoing sales negotiations, the 

company completed a characterization 

study of the parcel of interest in 2006 

that included both ground water and 

soil sampling. Ground water data 

collected from four monitoring wells 

did not identify ground water 

contamination areas of concern; 

however, soil data did identify areas of 

concern. 

In response to the study’s finding, 

BNSF conducted additional soil 

sampling and remediation activities in 

2007. Soil data collected from the 17- to 

20-acre parcel exceeded the soil cleanup 

levels identified in the ROD, and 

resulted in the excavation of soil and 

asphalt waste from the northern 62-acre 

parcel. The excavated material was 

stockpiled on the southern 27-acre 

fenced area for inclusion in the soil 

remediation action. Subsequent 

confirmation samples from excavated 

areas indicated that ROD soil cleanup 

levels were met. The highest BAP 

equivalent reported for soil was 7.4 mg/ 

kg, and the highest zinc concentration 

reported for soil was 179 mg/kg. 

Cleanup Goals 

The quality assurance/quality control 

(QA/QC) program for the Site was 

conducted in accordance with the work 

plans prepared to implement the RI and 

the RA construction activities. The EPA, 

in conjunction with NMED, conducted 

regular oversight throughout the 

implementation of the RI and remedial 

activities. Also, EPA and NMED 

reviewed and commented on all project 

plans and reports for the Site. 

The quality assurance project plan 

incorporated EPA and State comments 

and requirements. The EPA and NMED 

reviewed the RI excavation work, 

confirmation sample collection, and 

data analysis completed in 1996. The 

EPA and NMED reviewed RA 

construction work completed on the 62- 

acre parcel in 2007 for compliance with 

QA/QC protocols. The RI excavation 

activities at the Site were determined to 

be consistent with the RI work plans 

and construction practices, while the 

2007 RA construction activities were 

determined to be consistent with the 

ROD, and remedial design and RA work 

plans and specifications. No deviations 

or non-adherence to QA/QC protocols or 

specifications were identified. 

All sampling equipment was properly 

maintained, inspected, and 

decontaminated as necessary during 

sampling events in accordance with 

instructions and protocols established 

in the field sampling plans and quality 

assurance project plans. The EPA 

analytical methods and contract 

laboratory program-like procedures and 

protocols were used for all confirmation 

and monitoring samples for soil using a 

private laboratory contracted by the 

potentially responsible party (PRP). 

Based on remedial, third party, and 

supplemental Site investigation results, 

soil excavation on the northern 62-acre 

parcel addressed all identified soil areas 

that exceeded the ROD soil cleanup 

levels of 7.8 mg/kg BAP equivalent and 

200 mg/kg zinc. All confirmation 

sampling results are below the 

established cleanup level of 7.8 mg/kg 

BAP equivalent and 200 mg/kg zinc 

indicating that all soil remedial action 

objectives have been met. The excavated 

areas were backfilled with suitable 

materials meeting Site-specific cleanup 

levels and graded for proper drainage. In 

addition, ground water data have not 

identified areas of ground water 

contamination beneath the northern 62- 

acre parcel. The required ICs for 

protection of human health and the 

environment were filed on the subject 

property restricting land and ground 

water use. 

Operation and Maintenance and 

Institutional Controls 

Operation and maintenance actions 

for the northern 62-acre parcel of the 

Site proposed for partial deletion are 

limited. No treated soil repositories are 

located on this portion of the property 

and no ground water contamination 

plumes have been identified there. This 

portion of the property is currently 

fenced and partially reused as an auto 

unloading facility. The 62-acre parcel is 

under restricted land use (industrial 

only), and is under restricted ground 

water use controls which support 

ongoing remedial actions associated 

with the southern 27-acre parcel. Site 

inspections to determine whether land 

and ground water use restrictions are 

being met and to confirm that the ICs 

remain in place will be conducted at a 

minimum of once per year. 

Five-Year Review 

Since hazardous substances remain 

on-site at levels which do not allow 

unrestricted use and exposure, the Site’s 

land and ground water use is restricted. 

The Site is subject to five-year reviews 

to ensure the continued protectiveness 

of the remedy consistent with section 

121(c) of CERCLA, 42 U.S.C. 9621(c), 40 

CFR 300.430(f)(4)(ii), and the current 

guidance on Five-Year Reviews (EPA 

540–R–01–007, OSWER No. 9355.7– 

03B–P, Comprehensive Five-Year 

Review Guidance, June 2001). The NCP 

requires EPA to conduct statutory fiveyear reviews at sites where, upon 

attainment of ROD cleanup levels, 

hazardous substances remain on-site at 

concentrations which do not allow for 

unlimited use and unrestricted 

exposure. Based on the five-year review 

results, EPA will determine whether 

human health and the environment 

continue to be adequately protected by 

the implemented remedy. The first fiveyear review will be completed no later 

than September 29, 2013. 

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. 

Throughout the Site’s history, the 

community has been interested and 

involved with Site activity. The EPA has 

kept the community and other 

interested parties updated on Site 

activities through informational 

meetings, fact sheets, and public 

meetings. 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. 

In support of the partial deletion 

proposal, the EPA and NMED held an 

open house on October 14, 2010. The 

purpose of the meeting was to present 

and discuss the partial deletion 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 76, No. 3 / Wednesday, January 5, 2011 / Proposed Rules 515 

proposal. A fact sheet on the proposal 

was also mailed to the community. 

Determination That the Site Meets the 

Criteria for Deletion in the NCP 

The NCP [40 CFR 300.425(e)] states 

that a site may be deleted from the NPL 

when no further response action is 

appropriate. EPA, in consultation with 

the State of New Mexico, has 

determined that all appropriate 

response actions under CERCLA for the 

northern 62-acre parcel of the AT&SF 

Albuquerque Superfund Site, other than 

operation, maintenance, and five-year 

reviews, have been implemented, and 

no further response action by the PRP is 

appropriate. 

List of Subjects in 40 CFR Part 300 

Environmental protection, Air 

pollution control, Chemicals, Hazardous 

waste, Hazardous substances, 

Intergovernmental relations, Penalties, 

Reporting and recordkeeping 

requirements, Superfund, Water 

pollution control, Water supply. 

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. 

Dated: December 17, 2010. 

Al Armendariz, 

Regional Administrator, Region 6. 

[FR Doc. 2010–33109 Filed 1–4–11; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 226 

[Docket No. 101027536–0540–02] 

RIN 0648–BA38 

Endangered and Threatened Species, 

Designation of Critical Habitat for 

Southern Distinct Population Segment 

of Eulachon 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comment. 

SUMMARY: We, the National Marine 

Fisheries Service (NMFS), propose to 

designate critical habitat for the 

southern Distinct Population Segment 

(DPS) of Pacific eulachon (Thaleichthys 

pacificus), which was recently listed as 

threatened under the Endangered 

Species Act (ESA). We have proposed 

12 specific areas for designation as 

critical habitat within the states of 

California, Oregon, and Washington. 

The proposed areas are a combination of 

freshwater creeks and rivers and their 

associated estuaries which comprise 

approximately 470 km (292 mi) of 

habitat. Three particular areas are 

proposed for exclusion after evaluating 

the impacts and benefits associated with 

tribal land ownership and management 

by Indian tribes, but no areas are 

proposed for exclusion based on 

economic impacts. 

We are soliciting comments from the 

public on all aspects of the proposal, 

including information on the economic, 

national security, and other relevant 

impacts of the proposed designation, as 

well as the benefits to the southern DPS 

of eulachon from designation. We will 

consider additional information 

received prior to making a final 

designation. 

DATES: Comments on this proposed rule 

must be received by close of business on 

March 7, 2011. A public meeting has 

been scheduled for January 26, 2011 

from 3:30–5:30 p.m. and 6–8 p.m. at the 

Doubletree Hotel, 1000 NE Multnomah 

Street, Portland, OR 97232. Requests for 

additional public hearings should be 

made in writing by February 22, 2011. 

ADDRESSES: You may submit comments 

on the proposed rule, identified by RIN 

0648–BA38, by any one of the following 

methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: 503–230–5441, Attn: Marc 

Romano. 

• Mail: Chief, Protected Resources 

Division, Northwest Region, National 

Marine Fisheries Service, 1201 Lloyd 

Blvd, Suite 1201, Portland, OR 97232. 

Instructions: Comments will be 

posted for public viewing after the 

comment period has closed. All 

comments received are a part of the 

public record and will generally be 

posted to http://www.regulations.gov 

without change. NMFS may elect not to 

post comments that contain obscene or 

threatening content. All Personal 

Identifying Information (for example, 

name, address, etc.) voluntarily 

submitted by the commenter may be 

publicly accessible. Do not submit 

Confidential Business Information or 

otherwise sensitive or protected 

information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields, if you wish to remain 

anonymous). You may submit 

attachments to electronic comments in 

Microsoft Word, Excel, WordPerfect, or 

Adobe PDF file formats only. The 

proposed rule, list of references and 

supporting documents (including the 

Draft Eulachon Biological Report (NMFS 

2010b); the Draft Eulachon Economic 

Analysis (NMFS 2010c); and, the Draft 

Eulachon Section 4(b)(2) Report (NMFS, 

2010d)) are also available electronically 

at http://www.nwr.noaa.gov/. 

FOR FURTHER INFORMATION CONTACT: 

Marc Romano, NMFS, Northwest 

Region, Protected Resources Division, at 

the address above or at 503–231–2200, 

or Jim Simondet, NMFS, Southwest 

Region, Protected Resources Division, 

Arcata, CA 707–825–5171, or Dwayne 

Meadows, NMFS, Office of Protected 

Resources, Silver Spring, MD 301–713– 

1401. 

SUPPLEMENTARY INFORMATION: 

Background 

On March 18, 2010, we listed the 

southern DPS of Pacific eulachon as 

threatened under the ESA (75 FR 

13012). During the public comment 

period on the proposed rule to list the 

southern DPS of eulachon, we requested 

and received some information on the 

quality and extent of eulachon 

freshwater and estuarine habitat (73 FR 

13185; March 12, 2008). However, at the 

time of listing, we concluded that 

critical habitat was not determinable 

because sufficient information was not 

available to: (1) Determine the 

geographical area occupied by the 

species; (2) identify the physical and 

biological features essential to 

conservation; and (3) assess the impacts 

of a designation. During promulgation of 

the final rule to list eulachon, we were 

working to compile the best available 

information necessary to consider a 

critical habitat designation. We have 

now researched, reviewed and 

summarized this best available 

information on eulachon, including 

recent biological surveys and reports, 

peer-reviewed literature, the NMFS 

status report for eulachon (NMFS 

2010a), the proposed rule to list 

eulachon (74 FR 10857; March 13, 

2009), and the final listing 

determination for eulachon (75 FR 

13012; March 18, 2010) and had 

discussions with and considered 

recommendations by State, Federal, and 

tribal biologists familiar with eulachon. 

We used this information to identify the 

geographical area occupied, specific 

areas that may qualify as critical habitat 

for the southern DPS, as well as 

potential impacts associated with the 

designation and proposed exclusions. 

We considered various alternatives to 

the critical habitat designation for 


srobinson on DSKHWCL6B1PROD with PROPOSALS