United States
Environmental Protection Agency 1200 PennsylvaniaAvenue,N.W. Washington, D.C. 20460 March 2011

Office of Solid Waste and Emergency Response



# Support Document for the
Revised National Priorities List Final Rule – Dewey Loeffel Landfill

# Support Document for the
Revised National Priorities List
Final Rule Dewey Loeffel Landfill

March 2011

Site Assessment and Reme dy Decisions Branch Office of Superfund Remediati on and Technology Innovation
Office of Solid Waste and Emergency Response U.S. Environmental Protection Agency Washington, DC 20460

### Table of Contents

Executive Summary

............................................................................................................................... ....iii

Introduction ................................................................................................................................................iv

Background of the NPL ...........................................................................................................................iv

Development of the NPL ..........................................................................................................................v

Hazard Ranking System ...........................................................................................................................v

Other Mechanisms for Listing .................................................................................................................vi

Organization of this Document ...............................................................................................................vii

Glossary ..................................................................................................................................................vii

1. List of Commenters and Correspondence ........................................................................................1

2. Site Description ...................................................................................................................................4

3. Summary of Comments .....................................................................................................................5

3.1 Support for Listing and Other Non-opposition Comments ...........................................................7

3.2 Listing Requirements and Threat to Human Health or the Environment .....................................8

3.3 Danger to Human Health or the Environment ............................................................................13

3.3.1 Current Remedial Actions Are Sufficient ..........................................................................................14

3.3.2 PCB Concentrations Mainly Below Cleanup Levels .........................................................................14

3.3.3 2009 Sediment Samples Show No Danger ........................................................................................15
3.3.4 Western Drainage ..............................................................................................................................1 6

3.3.5 Southern Drainage .............................................................................................................................17

3.3.6 Ground Water

............................................................................................................................... .....17
3.3.7 PCB Levels in Fish Tissue Are Declining .........................................................................................18

3.3.8 Landfill No Longer a Source of PCBs to Surface Water ...................................................................19

3.4 Other Possible Pathway Threats .................................................................................................20

3.5 First Step in Process/Serving Public Interest ..............................................................................23

3.6 Delay Cleanup .............................................................................................................................24

3.7 Motive for Listing .......................................................................................................................25

3.8 Liability/Responsibility for Cleanup ...........................................................................................28

3.9 Non-Scoring Factual Errors ........................................................................................................29

iDewey Loeffel Landfill NPL Listing Support Document March 2011

ii 3.10 Observed Release to Nassau Lake ..............................................................................................30

3.10.1 Observed Release to Nassau Lake: Data Quality Issues ....................................................................31

3.10.1.1 Use of Qualified Data ...................................................................................................................31

3.10.1.2 Adjustment of “J”-Qualified Data .................................................................................................34

3.10.2 Observed Release to Nassau Lake: Number of Releases ..................................................................36
3.10.3 Resampling

............................................................................................................................... .........40

3.10.4 Observed Release to Nassau Lake: Background Similarity ..............................................................41

3.11 Observed Release to Valatie Kill ................................................................................................46

3.11.1 Observed Release to Valatie Kill: Continuity of the Observed Release ............................................47
3.11.2 Observed Release to Valatie Kill: Data Quality Issues ....................................................................49

3.11.2.1 Concentration Differences ............................................................................................................49
3.11.2.2 “C” Qualifier

............................................................................................................................... ..51

3.11.2.3 “UJ”-Qualified Background ..........................................................................................................52

3.11.2.4 Need for Additional Sampling ......................................................................................................53
3.11.3 Observed Release to Valatie Kill: Validity of Background Samples ................................................54

3.12 Human Food Chain Threat Targets .............................................................................................56

3.12.1 Zone of Contamination ......................................................................................................................56

3.12.2 Closed Fishery

............................................................................................................................... ....59

3.12.2.1 Presence of a Closed Fishery ........................................................................................................60

3.12.2.2 Cause of Closure ...........................................................................................................................61

3.12.2.3 Status of Consumption Advisory ..................................................................................................62
3.12.3 Fisheries at Observed Release Locations ..........................................................................................63

3.12.3.1 Adequacy of Link of Observed Releases to Fishery Closure ........................................................63
3.12.3.2 Fisheries Not Adequately Linked to Observed Releases ..............................................................64

3.12.4 Fishery in Mead Road Pond and Tributary TllA ...............................................................................66

3.13 Environmental Threat Targets: Wetlands ...................................................................................66

3.13.1 Jurisdictional Wetlands .....................................................................................................................68
3.13.2 Wetland Delineation and Wetland Frontage ......................................................................................68

3.13.3 Measurement of Wetland Frontage ...................................................................................................70

3.13.4 Consideration of Removal .................................................................................................................72
3.13.5 Actually Contaminated Wetlands ......................................................................................................74

4. Conclusion

............................................................................................................................... ..........75

Attachment 1: NYSDEC Dewey Loeffel Landfill Project Update – December, 2010

Attachment 2: Risk Assessment Guidance for Superfund Volume 1 – Human Health Evaluation Manual (Part B, Development of Risk-based Preliminary Remediation Goals) [excerpt]

Attachment 3: Aroclor Correlation Study

Attachment 4: USEPA CLP Statement of Work for Organics Analysis, SOM0.1.2 [excerpt, full copy available at http://www.epa.gov/superfund/programs/clp/som1.htm]

## Executive Summary

Section 105(a)(8)(B) of CERCLA, as amended by SARA, requires that the EPA prepare a list of national priorities among the known releases or threatened re leases of hazardous substances, pollutants, or contaminants throughout the United States. An orig inal National Priorities List (NPL) was promulgated on September 8, 1983 (48 FR 40658). CERCLA requir es that EPA update the list at least annually.

This document provides responses to public comme nts received on the Dewey Loeffel Landfill site, proposed on March 4, 2010 (75 FR 9843). This site is being added to the NPL based on an evaluation under EPA’s Hazard Ranking System (HRS) in a final rule published in the Federal Register in March

2011.

iiiDewey Loeffel Landfill NPL Listing Support Document March 2011



## Introduction

This document explains the rationa le for adding the Dewey Loeffel Landfill site in Nassau, New York, to the National Priorities List (NPL) of uncontrolled h azardous waste sites and provides responses to public comments received on this site listing proposal. The EP A proposed this site to the NPL on March 4, 2010 (75 FR 9843). This site is be ing added to the NPL based on an evaluation under the Hazard Ranking System (HRS) in a final rule published in the Federal Register in March 2011.



### Background of the NPL

In 1980, Congress enacted the Comprehensive Enviro nmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. Sections 9601 et seq . in response to the dangers of uncontrolled hazardous waste sites. CERCLA was amended on October 17, 1986, by the Superfund Amendments and Reauthorization Act (SARA), Public Law No. 99-499, stat., 1613 et seq. To implement CERCLA, EPA promulgated the
revised National Oil and Hazardous Substances Polluti on Contingency Plan (NCP), 40 CFR Part 300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA Section 105 and Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP, further revised by EPA on September 16, 1985 (50 FR 37624) and November 20, 1985 (50 FR 47912), sets forth guid elines and procedures needed to respond under
CERCLA to releases and threatened releases of hazard ous substances, pollutants, or contaminants. On March 8, 1990 (55 FR 8666), EPA further revised the NCP in response to SARA.

Section 105(a)(8)(A) of CERCLA, as amended by SARA, requires that the NCP include

criteria for determining priorities among rel eases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable, take into account the potential urgency of such action, for the purpose of taking removal
action.

Removal action involves cleanup or other actions that are taken in response to emergency conditions or on a short-term or temporary basis (CERCLA Section 101). Remedial action is generally long-term in nature and involves response actions that are consistent with a permanent remedy for a release (CERCLA Section 101). Criteria for placing sites on the NPL, which makes them eligible for remedial actions financed by the Trust Fund established under CERCLA, were included in the HRS. EPA promulgated the HRS as Appendix A of the NCP (47 FR 31219, July 16, 1982). On December 14, 1990 (56 FR 51532), EPA promulgated revisions to the HRS in response to SARA, and established the effective date for the HRS revisions as March 15, 1991.

Section 105(a)(8)(B) of CERCLA, as amended, requires that the statutory criteria provided by the HRS be used to prepare a list of national priorities among th e known releases or threatened releases of hazardous substances, pollutants, or contaminants throughout th e United States. The list, which is Appendix B of the NCP, is the NPL.

An original NPL of 406 sites was promulgated on September 8, 1983 (48 FR 40658). At that time, an
HRS score of 28.5 was established as the cutoff for lis ting because it yielded an initial NPL of at least 400 sites, as suggested by CERCLA. The NPL has been expanded several times since then, most recently on September 29, 2010 (75 FR 59975). The Agency al so has published a number of proposed rulemakings to add sites to the NPL. The most recent proposal was on October 21, 2010 (75 FR 64976).

ivDewey Loeffel Landfill NPL Listing Support Document March 2011



### Development of the NPL

The primary purpose of the NPL is stated in the le gislative history of CERCLA (Report of the Committee on Environment and Public Works, Senate Repor t No. 96-848, 96th Cong., 2d Sess. 60 [1980]).

The priority list serves primarily informa tional purposes, identifying for the States and the public those facilities and sites or other releases which appear to warrant remedial actions. Inclusion of a facility or site on the list does not in itself reflect a judgment of the activities of its owner or operator, it does not require those persons to undertake any action, nor does it assign liability to any person. Subsequent govern ment actions will be necessary in order to do so, and these acti ons will be attended by all appropriate procedural safeguards.

The NPL, therefore, is primarily an informational a nd management tool. The identification of a site for the NPL is intended primarily to guide EPA in determ ining which sites warrant further investigation to
assess the nature and extent of the human health and environmental risks associated with the site and to determine what CERCLA-financed remedial action(s), if any, may be appropriate. The NPL also serves to notify the public of sites EPA believes warrant further investigation. Finally, listing a site may, to the extent potentially responsible parties are identifiable at the time of listing, serve as notice to such parties that the Agency may initiate CERCLA-financed remedial action.

CERCLA Section 105(a)(8)(B) directs EPA to list prio rity sites among the known releases or threatened release of hazardous substances, pollutants, or c ontaminants, and Section 105(a)(8)(A) directs EPA to consider certain enumerated and other appropriate factors in doing so. Thus, as a matter of policy, EPA has the discretion not to use CERCLA to respond to cer tain types of releases. Where other authorities exist, placing sites on the NPL for possible remedial action under CERCLA may not be appropriate. Therefore, EPA has chosen not to place certain types of sites on the NPL even though CERCLA does not exclude such action. If, however, the Agency later determines that sites not listed as a matter of policy are not being properly responded to, the Agency may consider placing them on the NPL.



### Hazard Ranking System

The HRS is the principle mechanism EPA uses to place uncontrolled waste sites on the NPL. It is a numerically based screening system that uses inform ation from initial, limited investigations -- the preliminary assessment and site inspection -- to assess th e relative potential of sites to pose a threat to human health or the environment. HRS scores, however, do not determine the sequence in which EPA funds remedial response actions, because the inform ation collected to develop HRS scores is not
sufficient in itself to determine either the extent of contamination or the appropriate response for a particular site. Moreover, the sites with the hi ghest scores do not necessarily come to the Agency's attention first, so that addressing sites strictly on the basis of ranking would in some cases require stopping work at sites where it was already underway. Thus, EPA relies on further, more detailed studies in the remedial investigation/feasibilit y study that typically follows listing.

The HRS uses a structured value analysis approach to scoring sites. This approach assigns numerical values to factors that relate to or indicate risk, b ased on conditions at the site. The factors are grouped into three categories. Each category has a maximum value. The categories are:

• likelihood that a site has released or has the potential to release hazardous substances into the environment;

vDewey Loeffel Landfill NPL Listing Support Document March 2011

• characteristics of the waste (toxicity and waste quantity); and

• people or sensitive environments (targets) affected by the release.

Under the HRS, four pathways can be scored for one or more threats as identified below:

• Ground Water Migration (S gw ) - drinking water

• Surface Water Migration (S

sw ) The following threats are evaluated for two separate migration components, overland/flood migration and ground water to surface water. - drinking water
- human food chain
- sensitive environments

• Soil Exposure (S

s ) - resident population - nearby population
- sensitive environments

• Air Migration (S

a ) - population
- sensitive environments

After scores are calculated for one or more pathways according to prescrib ed guidelines, they are combined using the following root-mean-square equati on to determine the overall site score (S), which ranges from 0 to 100 :



### 4 S + S + S + S = S 2

a 2

s 2

sw 2

gw

If all pathway scores are low, the HRS score is low. However, the HRS score can be relatively high even if only one pathway score is high. This is an important requirement for HRS scoring because some extremely dangerous sites pose threats through only one pathway. For example, buried leaking drums of hazardous substances can contaminate drinking water wells, but -- if the drums are buried deep enough and the substances not very volatile -- not surface water or air.



### Other Mechanisms for Listing

There are two mechanisms other than the HRS by whic h sites can be placed on the NPL. The first of these mechanisms, authorized by the NCP at 40 CFR 300. 425(c)(2), allows each State and Territory to designate one site as its highest priority regardless of score. The last mechanism, authorized by the NCP at 40 CFR 300.425(c)(3), allows listing a site if it meets the following three requirements:

• Agency for Toxic Substances and Disease Registry (ATSDR) of the U.S. Public Health Service has issued a health advisory that recommends dissociation of individuals from the release;

• EPA determines the site poses a significant threat to public health; and

viDewey Loeffel Landfill NPL Listing Support Document March 2011

• EPA anticipates it will be more cost-effective to use its remedial authority than to use its emergency removal authority to respond to the site.



### Organization of this Document

The following section contains EPA responses to s ite-specific public comments received on the proposal of the Dewey Loeffel Landfill site on March 4, 2010 (75 FR 9843). The site discussion begins with a list of commenters, followed by a site description, a summary of comments, and Agency responses to each comment. A concluding statement indicates the effe ct of the comments on the HRS score for the site.



### Glossary

The following acronyms and abbreviations are used throughout the text:

AALAC Ambient Aquatic Life Advisory Concentrations

Agency U.S. Environmental Protection Agency

ATSDR Agency for Toxic Substances and Disease Registry

CERCLA Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. Sections 9601 et seq ., also known as Superfund

CFR Code of Federal Regulations

CLP Contract Laboratory Program

CRP Community Relations Plan

DL Detection limit

DNAPL Dense Non Aqueous Phase Liquid

DOH Department of Health

EPA U.S. Environmental Protection Agency

FR Federal Register

GC/ECD Gas Chromatograph/Electron Capture Detection

GC/MS Gas Chromatograph/Mass Spectrometry

GE General Electric Company

GLP Great Lakes Protocol

HRS Hazard Ranking System, Appendix A of the NCP

HRS score Overall site score calculated using the Hazard Ranking System; ranges from 0 to

100

MDL Method detection limit

mg/kg Milligram per kilogram

NCP National Oil and Hazardous Substances Po llution Contingency Plan, 40 C.F.R.

Part 300

NPL National Priorities List, Appendix B of the NCP

NWI National Wetlands Inventory

viiDewey Loeffel Landfill NPL Listing Support Document March 2011

viii NYSDOH New York State Department of Health

NYSDEC New York State Department of Environmental Conservation

OU Operable Unit

PCB Polychlorinated biphenyl

PPB Parts per billion

PPE Probable point of entry

PPM Parts per million

PRP Potentially responsible party

RCRA Resource Conservation and Recovery Act

RI/FS Remedial investigation and feasibility study

ROD Record of Decision

SARA Superfund Amendments and Reauthorization Act

SOP Standard Operating Procedure

SQL Sample quantitation limit

TDL Target distance limit

TOC Total organic carbon

USACE United States Army Corps of Engineers

VOC Volatile organic compoundDewey Loeffel Landfill NPL Listing Support Document March 2011



## 1. List of Commenters and Correspondence

EPA-HQ-SFUND-2010-0075-0004 Corr espondence, dated October 13, 2009, from Alexander B. Grannis, Commissioner, New York Department of Environmental Conservation, letter requesting placement of the Dewey Loeffel Landfill site on the National Priorities List (NPL)

EPA-HQ-SFUND-2010-0075-0005 Comment, dated March 07, 2010, from Kate Bader and Tim Thomas, Public Commenters

EPA-HQ-SFUND-2010-0075-0006 Comme nt, dated March 14 2010, from Sam Whaley,
Public Commenter

EPA-HQ-SFUND-2010-0075-0007 Comment, dated April 14, 2010, from Martin T. Reid, Chairman; Judith H. Breselor, District 4 Legislator; Alex Shannon, District 4 Legislator, Rensselaer County Legislature

EPA-HQ-SFUND-2010-0075-0007.1 Comment attach ment, dated April 14, 2010, from Martin T. Reid, Chairman; Judith H. Breselor, District 4 Legislator; Alex Shannon, District 4 Legislator, Rensselaer County Legislature

EPA-HQ-SFUND-2010-0075-0008 Comme nt, dated April 16, 2010, from Anonymous
Public Commenter

EPA-HQ-SFUND-2010-0075-0009 Comment, dated April 19, 2010, from Erica Gundrum,
Public Commenter

EPA-HQ-SFUND-2010-0075-0010 Comment, da ted April 13, 2010, from Dawne M. Kelly, Assistant to Supervisor Dowds, Town of Schodack

EPA-HQ-SFUND-2010-0075-0010.1 Comment attach ment, dated April 13, 2010, from Dawne M. Kelly, Assistant to Supervisor Dowds, Town of
Schodack

EPA-HQ-SFUND-2010-0075-0011 Comment, da ted April 22, 2010, from P. Lever, Public

Commenter

EPA-HQ-SFUND-2010-0075-0012 Comment, dated April 22, 2010, from Michael Cooney,
Public Commenter

EPA-HQ-SFUND-2010-0075-0013 Comme nt, dated April 25, 2010, from Catherine Sullivan, Public Commenter

EPA-HQ-SFUND-2010-0075-0014 Comme nt, dated April 25, 2010, from Anonymous
Public Commenter

EPA-HQ-SFUND-2010-0075-0015 Comment, dated April 25, 2010, from Charles E. Sullivan Jr., Public Commenter

1Dewey Loeffel Landfill NPL Listing Support Document March 2011

EPA-HQ-SFUND-2010-0075-0016 Comment , dated April 27, 2010, from Pam Lever, United Neighbors Concerned About General Electric and Dewey Loeffel Landfill (UNCAGED)

EPA-HQ-SFUND-2010-0075-0017 Comment , dated April 28, 2010, from Kelly TraversMain, UNCAGED

EPA-HQ-SFUND-2010-0075-0018 Comment, da ted May 01, 2010, from Anonymous Public

Commenter

EPA-HQ-SFUND-2010-0075-0019 Comment, dated May 01, 2010, from Susan Lawrence, Sierra Club, Atlantic Chapter

EPA-HQ-SFUND-2010-0075-0020 Comment, da ted May 01, 2010, from Anonymous Public

Commenter

EPA-HQ-SFUND-2010-0075-0021 Comment, da ted May 02, 2010, from K. Conway, Public

Commenter

EPA-HQ-SFUND-2010-0075-0022 Comment, dated May 03, 2010, from T. and S. Howard,
Public Commenters

EPA-HQ-SFUND-2010-0075-0023 Comment , dated May 03, 2010, from Doug Bullock, Solidarity Committee, Capital District

EPA-HQ-SFUND-2010-0075-0024 Comment, dated Ma y 03, 2010, from Virginia Martin,
Public Commenter

EPA-HQ-SFUND-2010-0075-0025 Comment, da ted May 03, 2010, from D. Spilman, Public

Commenter

EPA-HQ-SFUND-2010-0075-0026 Comment , dated March 03, 2010, from Tom Tobia, President, Nassau Lake Park Improvement Association

EPA-HQ-SFUND-2010-0075-0027 Comment, da ted May 03, 2010, from D. Spilman, Public

Commenter

EPA-HQ-SFUND-2010-0075-0028 Comment, dated May 03, 2010, from Timothy Gray, Director, Housatonic River Initiative

EPA-HQ-SFUND-2010-0075-0029 Comment , dated May 03, 2010, from Robert F. Zimmerman, Public Commenter

EPA-HQ-SFUND-2010-0075-0030 Co mment, dated May 03, 2010, from Caryn Niedringhaus, Public Commenter

EPA-HQ-SFUND-2010-0075-0031 Comment, dated May 02, 2010, from Andrew Davis,
Public Commenter

2Dewey Loeffel Landfill NPL Listing Support Document March 2011

EPA-HQ-SFUND-2010-0075-0032 Comment, dated April 28, 2010, from April M. Wilson, Dreyer Boyajian LLP

EPA-HQ-SFUND-2010-0075-0033 Comment , dated April 27, 2010, from Andi Weiss Bartczak, Public Commenter

EPA-HQ-SFUND-2010-0075-0033.1 Comment attachment , dated April 27, 2010, from Andi Weiss Bartczak, Public Commenter

EPA-HQ-SFUND-2010-0075-0034 Comment, dated May 03, 2010, from Barbara Warren, Executive Director, Citizens’ Environmental Coalition

EPA-HQ-SFUND-2010-0075-0035 Comment, dated May 07, 2010, from Lillian Goss,
Public Commenter

EPA-HQ-SFUND-2010-0075-0036 Comment, dated Ma y 03, 2010, from Cheryl Cammer,
Public Commenter

EPA-HQ-SFUND-2010-0075-0037 Comment, dated May 03, 2010, from Mike Keenan,
Public Commenter

EPA-HQ-SFUND-2010-0075-0038 Comment, dated May 03, 2010, from Michael S. Giannotto, Counselors at Law, Goodwin Procter LLP on behalf of Kirk R. Macfarlane, Counsel,
MidAtlantic/Southeast/Western Regions and Paul Hare, Program Manager, Northeas t/Midwest Regions, General Electric Company (GE)

EPA-HQ-SFUND-2010-0075-0038.1 Comment att achment, dated May 03, 2010, from Michael S. Giannotto, Counselors at Law, Goodwin Procter LLP on behalf of Kirk R. Macfarlane, Counsel,
MidAtlantic/Southeast/Western Regions and Paul Hare, Program Manager, Northeast/Midwest Regions, GE

EPA-HQ-SFUND-2010-0075-0038.2 Comment att achment, dated May 03, 2010, from Michael S. Giannotto, Counselors at Law, Goodwin Procter LLP on behalf of Kirk R. Macfarlane, Counsel,
MidAtlantic/Southeast/Western Regions and Paul Hare, Program Manager, Northeast/Midwest Regions, GE

EPA-HQ-SFUND-2010-0075-0039 Comment, date d April 27, 2010, from Maida R. Bogoslofsky, Public Commenter

EPA-HQ-SFUND-2010-0075-0039.1 Comment attachment , dated April 27, 2010, from Maida R. Bogoslofsky, Public Commenter

EPA-HQ-SFUND-2010-0075-0040 Comment, dated May 03, 2010, from Robert F. Zimmerman, Public Commenter

EPA-HQ-SFUND-2010-0075-0040.1 Comment attachme nt, dated May 03, 2010, from Robert F. Zimmerman, Public Commenter

3Dewey Loeffel Landfill NPL Listing Support Document March 2011

EPA-HQ-SFUND-2010-0075-0041 Comment, dated Ma y 03, 2010, from Anonymous Public

Commenter

EPA-HQ-SFUND-2010-0075-0042 Comment, dated May 03, 2010, from Anne Rabe, Center for Health, Environment & Justice (CHEJ)

EPA-HQ-SFUND-2010-0068-0001 Comment, dated Ma y 11, 2010, from anonymous public

commenter



## 2. Site Description

The Dewey Loeffel Landfill site (the “Site”) as score d in the HRS documentation record at proposal
includes an inactive hazardous waste disposal area (the “Landfill”) and th e releases from it into the former Mead Road Pond, Tributary T11A, Valatie Kill, Va lley Stream, Smith Pond, and Nassau Lake (Mead
Road Pond is referred to as “former” due to remedia tion and excavation of Mead Road Pond in 2001). In addition, there is ground water contamination associated w ith the site. The Landfill is located in the town of Nassau, in southern Rensselaer County, New York , within a low-lying, 19.6-acre easement between
two wooded hills.

In the 1950s and 1960s, the property was used as a disposal facility for more than 46,000 tons of industrial hazardous wastes. From 1952 to 1968, Lo effel Waste Oil Removal and Service Company (“Loeffel”) operated the disposal facility for indust rial hazardous wastes, including solvents, waste oils, polychlorinated biphenyls (PCB), scrap materials, sl udges, and solids. The General Electric Company (GE) reported that approximately 37,530 tons of wa ste materials from GE manufacturing facilities were deposited at the facility. New York State Depart ment of Environmental Conservation (NYSDEC) reported that at least 8,790 tons of waste materials were deposited at the facility from other industrial sources, including Bendix Corporation (now Honeywell International, In c.) and Schenectady Chemicals, Inc. (now SI Group, Inc.).

Some hazardous substances, in particular PCBs, have migrated from the facility to underlying aquifers and downstream surface water bodies, resulting in contamination of ground water, surface water, sediments, and several species of fish. In the HRS evaluation, the encapsulated disposal area (i.e., landfill or containment cell) was evaluated as a source. Th ere are two probable points of entry (PPE) to surface water from the Dewey Loeffel Landfill facility: the nort hwest drainage-way running toward the former Mead Road Pond (PPE1) and southeast drainage-w ay running toward Valley Stream (PPE2). The majority of surface water drains northwest via PPE1 into an unnamed stream, through the former Mead Road Pond, into Tributary T11A, then into Valatie Ki ll, and on into Nassau Lake. Observed releases of PCBs are documented based on chemical analysis of se diments in the former Mead Road Pond, Tributary T11A, Valatie Kill, Valley Stream, Smith Pond, and Nassau Lake. Targets evaluated for HRS scoring include wetlands and a closed fishery (closed by Ne w York State Department of Health, which issued “Eat No Fish” advisories) in the watershed and within the zone of contaminati on related to the Site.

In 1968, after several years of citizen complain ts, documented downstream fish and cattle kills, and uncontrolled fires at the facility, the State of New York ordered Loeffel to stop discharges from the disposal facility and perform remedial activities. By 1974, Loeffel had covered and graded the disposal
areas with soil and constructed drai nage channels to control runo ff. From 1974 to 1980, Loeffel continued to use four 30,000-gallon aboveground st orage tanks (ASTs) at the facility for waste oil
transfer.

4Dewey Loeffel Landfill NPL Listing Support Document March 2011

In 1980, GE entered into an agreement with NYSDEC to perform additional investigation and remediation at the facility. From 1982 to 1984, a pproximately 500 surface drums and the 30,000-gallon ASTs were removed from the Loeffel property, a nd a NYSDEC-approved slurry wall, clay cap, and leachate collection system were installed.

Since 1985, NYSDEC has overseen operation, mainte nance, and monitoring activities at the Dewey Loeffel Landfill facility. NYSDEC designated three operable units (OU) at the facility: OU1, the encapsulated disposal area; OU2, ground water cont amination associated with the facility; and OU3, surface water releases downgradient of the facility. In January 2001, NYSDEC issued a Record of Decision (ROD) for OU2, and in January 2002, NYSDEC issued a ROD for OU3. While work has been performed for OU1, no ROD has b een issued for OU1. Pursuant to the OU2 ROD, NYSDEC has designed a leachate collection system and has begun the design of the required wastewater treatment facility to manage leachate and ground water. Neither project has been implemented. Additionally NYSDEC has installed and is currently operating a gr ound water recovery well system. Regarding OU3, from 2001 to 2004, GE removed approximately 15,000 tons of PCB-contaminated soil and sediments from the drainage-way between the facility and Nassau Lake, including the area immediately adjacent to the disposal facility, Mead Road Pond, Tributary T11A, and Valatie Kill.

After receipt of an October 13, 2009, letter from NYS DEC requesting that EPA list the Site on the NPL, in June and August 2009 EPA c onducted sediment sampling along the surface water migration pathway downstream of the facility, and found the presence of PCBs in the former Mead Road Pond, Tributary T11A, Valatie Kill, Valley Stream, and Nassau Lake. The HRS Site score is based on the release of PCBs to the watershed, and the resulting threat to the human food chain fishery and environmental targets. Either the human food chain threat or th e environmental threat would be sufficient alone to qualify the Site for NPL listing.



## 3. Summary of Comments

Thirty-eight commenters submitted comments in supp ort of placing the Dewey Loeffel Landfill site on the National Priorities List (NPL). Among the reasons for this support were contamination in surface water and ground water, and concerns for the effects this contamination may have on the public health
and wildlife.

Comments were submitted in opposition to listing by Mi chael S. Giannotto, Counselors at Law, Goodwin Procter LLP on behalf of General Electric Company (h ereafter referred to as GE). GE raised both site eligibility policy and technical HRS scoring issues.

GE’s main eligibility issues dealt with whether EPA had shown that the Site warranted listing. First, GE argued that listing the Site did not meet CERCLA requ irements. It asserted that EPA has acted arbitrarily in this case by listing the Site based only on the fact that the HRS score exceeded the cutoff of 28.50, without considering whether the Site poses a threat to human health or the environment under the other factors that must be evaluated under CERCLA § 105(a)(8)(A). GE asserted that because of completed remedial actions and those contemplated in the futu re, the Site does not pose any significant dangers to human health or the environment. GE argued th at EPA had “understated” these actions. GE made several claims in support of this argument, includi ng that: PCB concentrations are mainly below cleanup levels; 2009 sediment samples show no threat; PCB le vels in the area have been significantly reduced; PCB levels in fish tissue are declining; the Landfill is no longer a source of PCBs to surface water; and no threats are presented by the western drainage , southern drainage, and ground water.

GE also took issue with EPA’s statement that listing th e Site is only the “first step” in the NPL process in which EPA determines whether the Site poses any dange rs. GE declared that listing the Site will not

5Dewey Loeffel Landfill NPL Listing Support Document March 2011

serve the public interest because the Site has been in vestigated for 30 years and any dangers present have
been assessed. GE added that indeed “far from bei ng of assistance in assessing or remediating significant dangers to human health or the environment [which it claimed was currently nonexistent], an EPA listing
decision and further EPA involvement at this site will serve only to delay cu rrently planned additional remedial action while EPA investigates the S ite looking for dangers that do not exist.”

In addition, GE asserted that the motive for listing this site is improper. GE stated that under the 1980 Administrative Consent order with the State of New York (commonly referred to as the “Seven Sites Agreement”), GE performed certain investigations an d designs and then paid the State to implement the design in return for the State’s release of GE from an y further liability related to the Landfill and any offsite areas that are affected by contaminants th at migrated from the Landfill after execution of the agreement. GE claimed that the State’s primary “r eason for requesting that EPA list the Site – and EPA’s primary, if not only, reason for proposing to do so – is the State’s and EPA’s belief that listing will allow EPA to compel GE to undertake, or fund, groundwat er-related remedial actions within the landfill which are in fact the responsibility of the State and fo r which the State has agreed not to pursue GE.”

GE also submitted comments that address the liability at the Site, claiming that the HRS documentation record attempts “to convey the misleading impression that GE is a wrongdoer with respect to this Site” and that Bendix and Schenectady Chemicals were th e only other contributors to the alleged problems at the Site. GE stated that GE paid Dewey Loeffel an d various Loeffel-related companies, to dispose of
GE’s industrial waste and that “GE was not the en tity that placed these wastes in the landfill in an allegedly environmentally improper manner or the entit y that improperly managed the landfill.” GE also
commented that the State has been the operator of the Site since 1985 and that any migration of contaminants that continues in the ground water path way from the Site is the responsibility of the State.

GE submitted several comments alleging factual errors within the HRS scoring of the Site. It challenged
the observed releases to both Nassau Lake and the Valatie Kill. Regarding the ob served release to Nassau Lake, GE commented on the usability of the analytical result used to establish that observed release and argued that one release sample was not sufficient to establish the observed release to Nassau Lake when other samples in the lake did not; it concluded that EPA should have resampled Nassau Lake sediments. GE also claimed that the background samples were not similar enough to the release sample to show the
increase in contaminant concentration was due to a release from the Site and not due to differences in physical characteristics of the samples.

GE claimed that EPA had not established through credib le evidence that there were observed releases in the watershed at the Site. Regarding the observed rel eases to Valatie Kill, GE ar gued that not all samples from Tributary T11A, Mead Road Pond, and Valatie Kill met observed release criteria. It challenged the usability of analytical data used to establish observe d releases by chemical analysis in these areas; GE argued that differences in concentration at some sa mple points over time and cer tain qualifiers (“C” and “UJ” qualifiers) associated with data call that data into question and necessitate resampling. It also claimed that EPA did not collect and analyze sufficient background sediment sa mples to compare with release samples, and specifically questioned the effect of the “UJ” data qualifiers associated with two of the background samples.

GE also challenged the target scoring at the Site. It ar gued that factors used to determine the extent of the
zones of contamination for human food chain fisher ies and environmental targets were incorrect, and questioned whether the fishery in the watershed was actually closed, and whether the wetlands frontage used in the scoring should include wetlands in ar eas where removal actions had taken place. GE’s comments identified that not all samples in the Site watershed established observed releases, implied that
the zone of contamination established in the HRS doc umentation record at proposal was incorrect, and

6Dewey Loeffel Landfill NPL Listing Support Document March 2011

questioned whether targets in the areas of these non- observed release samples were subject to actual
contamination.

GE claimed that the fisheries in Nassau Lake a nd the Valatie Kill had not been closed due to PCB releases from the Site; it continued to reason that because catch-and-release fishing is allowed, the fisheries had not actually even been closed. GE further stated that based on current contaminant levels, the current fish consumption advisory could be relaxed and the fishery would no longer be considered closed. It argued that the Mead Road Pond area and Tributary T11A are too small for recreational fishing and to support fish large enough for human consumption. GE also contended that EPA has not shown that the fisheries exist or previously existed in the observed release locations. GE reasoned that the HRS
human food chain threat score should therefore be zero.

GE claimed that EPA had not established that the Site is adversely affecting jurisdictional wetlands. GE further argued that the wetland delineations and the a ssociated wetland frontage measurements used in scoring the Site were not adequately determined. GE pointed out that two sections of the stream, Tributary T11A and Area 28 of the Valatie Kill, ha ve undergone removal actions and concluded that these two areas should not be part of the measured we tland frontage, and GE should not be responsible for further clean-up actions.

Based on its comments, GE argued that the HRS site score should have been zero.

In this support document, EPA responds to comments submitted on the March 20 10 proposed listing of the Dewey Loeffel Landfill site. After considera tion of these items, the HRS site score remains unchanged, and EPA has determined that placing the Site on the NPL is warranted.



### 3.1 Support for Listing and Other Non-opposition Comments

Comment : Thirty-eight commenters submitted comment s in support of placing the Dewey Loeffel
Landfill site on the NPL. Three of these commenter s supported the cleanup of the Site in general, regardless of the method. Three of these commenters st ated that they were not convinced that placing the Site on the NPL would serve the optimal resolution, but supported the listing nonetheless. The reasons for the support varied, including concern for:

• Polluted surface water and the ineffectiveness of the GE and NYS Department of Environmental Conservation (DEC)

• Public health and wildlife

• Contaminated ground water and individual s with contaminated ground water supply

• People who unknowingly eat PCB-contaminated fi sh from Nassau Lake and its tributaries

• Swimmers in Nassau Lake wit hout knowledge of the pollution

• Decreased property values due to the contamination

• Need for accountability of polluters and burden on residents of negative effects

• Environmental neglect of the Site by GE and NYSDEC, including expenditures on lawyers instead of cleanup

• Lack of attention to residents’ perceptions

Others stated the HRS score underplays the Site’s si gnificance. Several commenters indicated that they knew people continued to eat fish from the Lake, and st ressed that wildlife continue to eat the fish from the surface water bodies. Two commenters noted concern that nearby blasting could cause the ground water contamination to spread. Still others noted that the contamination in the Landfill was not contained. Two noted that the clay slurry wall could become decayed and fail by the year 2014.

7Dewey Loeffel Landfill NPL Listing Support Document March 2011

Several commenters also commented on or sugg ested possible post listing activities including
remediation alternatives.

One commenter in support of listing expressed con cern that listing could have economic effects on property values and investment potential and that a ttention should be given to residents and property
owners. One commenter stated that reme diation should improve property values.

Response : The Agency has added the Dewey Loeffel Landf ill site to the NPL. Listing makes a site eligible for remedial action funding under CERCLA. EPA will examine the Dewey Loeffel Landfill site during the remedial investigation/feasibility study (RI/FS) phase of the Superfund process to determine what response, if any, is appropriate.

Regarding concerns about the economic impact of adding this site to the NPL, both costs and benefits can be associated with listing a site. However, as a r esult of additional CERCLA remedies, if appropriate, there will be lower human exposure to high-risk chemicals, and higher quality surface water, ground water, soil, and air. Therefore, it is possible that an y perceived or actual negativ e fluctuations in property values or development opportunities that may resu lt from contamination may be countered by positive fluctuations when a CERCLA investigation and any necessary cleanup are completed.

Regarding concerns that there is a lack of attention to residents’ perceptions, to the extent practicable, the EPA Regional Office develops a Community Relations Plan (CRP) before RI/FS field work begins. Pursuant to 40 C.F.R. 300.430(c), the CRP is the “w ork plan” for community relations activities that EPA will conduct during the entire cleanup process. In deve loping a CRP, Regional staff interview State and
local officials and interested citizens to learn about citizen concerns, site conditions, and local history.
This information is used to formulate a schedule of activities designed to keep citizens apprised and to keep EPA aware of community concerns.

Regarding concerns related to gro und water contamination at the fac ility and in drinking water supplies and fish, this contamination will be considered in a different stage of the Superfund process when determining what remediation, if any, is necessar y at the Site (see also section 3.4, Other Possible Pathway Threats, of this support document).



### 3.2 Listing Requirements and Th reat to Human Health or the
Environment

Comment : GE stated that “EPA is proposing to list the Loeffel Site on the NPL on the ground that it has achieved an HRS score of 28.50 or above.” GE argued that EPA may not list a site solely because it scores 28.50 or higher under the HRS, but must also c onsider “pertinent factors”, such as whether the Site poses a risk to human health or the environment:

Thus, pursuant to EPA’s own regulations, while a sufficiently high (but undisclosed) HRS score is necessary in order for a site to be e ligible for the NPL, nothing in those regulations provides that such a score is determinative of the listing decision or that EPA may ignore other pertinent factors - including whether th e site poses a risk to human health and the environment - when making a listing decision.

GE cited to Section 105(a)(8)(A) of CERCLA, 42 U.S.C. § 9605(a)(8)(A), to identify criteria EPA must consider before making a listing decision, which include the possible population at risk, the hazard potential of the hazardous substances at a facility, th e potential for contamination of drinking water

8Dewey Loeffel Landfill NPL Listing Support Document March 2011

supplies, the potential for direct human contact, the po tential for destruction of sensitive ecosystems, and other appropriate factors. GE cited numerous court decisions to support its assertions that the NPL is:

“. . . designed to be a list only of those sites and releases that EPA determines pose the greatest risks to human health and the environment and that should be priorities, among all the sites in the nation, for clean-up under the Superfund law.”

In considering the regulations, the st atute, and the relevant court decisions, GE argued that EPA has acted arbitrarily in this case by listing the Site based on the HRS score without considering whether the Site poses a threat to human health or the environment under the factors in CERCLA § 105(a)(8)(A). GE argued that the Dewey Loeffel Landfill site poses no thr eat because of the low concentrations of PCBs on the Site “around or below 1ppm”, which has already been remediated under a State-approved cleanup

program.

Response : In its comments, GE cited to 40 C.F.R. § 3 00.425(c)(1) as the Agency’s authority for listing sites to the NPL pursuant to the HRS. That regulation provides, in relevant part:

(c) Methods for determining eligibility for NPL. A release may be included on the NPL if the release meets one of the following criteria: (1) The release scores sufficiently high pursuant to the Hazard Ranking System described in appendix A to this part.

The HRS is a numerically based screening tool that th e Agency uses to assess the relative risk of a site compared to other sites. The purpose of the HRS score is not to determine the extent of contamination or the specific risks posed by a site – that occurs at the RI/FS stage of the Superfund process. Instead, the
HRS score is used to determine whether a site is e ligible for placement on the NPL. As stated in the preamble of the proposed rule to list the Dewey Loef fel Landfill site, “[a]s a matter of Agency policy, those sites that score 28.50 or greater on the HRS ar e eligible for the NPL.” Numerous court decisions (such as those cited by GE in its comments) have recognized the Agency’s consistent use of 28.50 as the threshold score for determining NPL eligibility. See Carus Chemical Co. v. EPA , 395 F.3d 434, 438 (D.C. Cir. 2005) (A site with a score greater than 28.50 is eligible for the NPL); Honeywell Int’l Inc. v. EPA, 372 F.3d 441, 444 (D.C. Cir. 1997) (Sites sco ring 28.50 or higher may be added to the NPL).

In its comments, GE argued that the cutoff score of 28.50 in EPA’s own words “was selected because it would yield an initial NPL of at least 400 sites as suggested by CERCLA, not because of any determination that it represented a threshold and the significance of the risks presented by sites.” [quoting 48 Fed. Reg. 40,658, 40,659 (Sept. 8, 1983)] In the 1990 revisions to the HRS, however, EPA opted to keep the 28.50 cutoff score after requesting public co mment on the issue because it was determined to be the appropriate score to assist EPA in making objective decisions about national priorities. As stated in the preamble to the final revised HRS rule:

EPA believes that the cutoff score has been, a nd should continue to be, a mechanism that allows it to make objective decisions on nationa l priorities. Because the HRS is intended to be a screening system, the Agency has neve r attached significance to the cutoff score as an indicator of a specific level of risk from a site, nor has the Agency intended the cutoff to reflect a point below which no risk w as present. The score of 28.5 is not meant to imply that risky and non-risky sites can be precisely distinguished. Nevertheless, the cutoff score has been a useful screening tool th at has allowed the Agency to set priorities and to move forward with studying and, where appropriate, cleaning up hazardous waste sites. The vast majority of sites scoring above 28.5 in the past have been shown to

9Dewey Loeffel Landfill NPL Listing Support Document March 2011

present risks. EPA believes that a cutoff score of 28.5 will continue to serve this crucial function. [See 55 FR 51569 (December 14, 1990).]

To the extent GE’s comments challenge the use of the 28.50 cutoff score, EPA considers it was reasonable to apply the score to the Dewey Loeffel La ndfill site pursuant to the relevant court decisions and prior EPA consideration of the cutoff score in the 1990 revisions to the HRS.

EPA’s listing authority in 40 C.F.R. § 300.425(c)(1 ), and the HRS itself, are part of the National Contingency Plan (“NCP”) (located in 40 C.F.R. Part 300 and appendix A) and were promulgated pursuant to CERCLA § 105(a)(8), 42 U.S.C. § 9605(a)(8). The HRS, in particular, was promulgated pursuant to CERCLA § 105(a)(8)(A), as revised by Superfund Amendments a nd Reauthorization Act SARA, which provides that the President (through EP A) shall revise and republish the NCP to include:

. . . (8)(A) criteria for determining prio rities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable taking into account the potential urgency of such action, for the purpose of taking removal action. Criteria and prioriti es under this paragraph shall be based upon relative risk or danger to public health or we lfare or the environment, in the judgment of the President, taking into account to the extent possible the population at risk, the hazard potential of the hazardous substances at such facilities, the potential for contamination of drinking water supplies, the potential for direct human contact, the potential for destruction of sensitive ecosystems, the damage to natural resources which may affect the
human food chain and which is associated with any release or threatened release, the contamination or potential contamination of the ambient air which is associated with the release or threatened release, State preparedness to assume State costs and responsibilities, and other appropriate factors; [See 42 U.S.C. § 9605(a)(8)(a).]

Thus, CERCLA § 105 (a)(8)(A) requires EPA to develop criteria for including releases on the NPL and base that criteria on a number of factors, including th e possible population at risk, the hazard potential of the hazardous substances at facilities, the potential fo r contamination of drinking water supplies, the potential for direct human contact, the potential for destruction of sensitive ecosystems, etc. The HRS (last revised on December 14, 1990, 55 FR 51583) codifies or implements such criteria and is the Agency’s tool for deriving a s ite score based on the factors identified in CERCLA § 105(a)(8)(A).

In its comments, however, GE wrongly asserts that CERCLA § 105(a)(8)(A) contains a list of factors that the Agency must consider after, or above-and-beyond, the calculation of an HRS score. In support of its argument, GE pieces together select language from the preamble to the final rule of the outdated 1982

NCP:

The HRS was developed pursuant to Section 105(a)(8)(A) of CERCLA. . . . The HRS was designed to take into account only [certain] aspects of the above considerations [listed in Section 105(a)(8)(A) of CERCLA] . . . . Once an HRS score has been assigned,
the additional factors referenced in Section 105(a)(8)(A) will be considered in selecting releases for the NPL . . . .” 47 Fed. Reg. at 31,180, 31,192 (July 16, 1982).

As noted, the above preamble language refers to an earlier version of the 1982 NCP which is much
different than the current NCP. The 1982 NCP cont emplated that States would calculate HRS scores for sites within their jurisdiction and submit them to EP A for inclusion on the NPL. With that context in mind, it is important to consider the full excer pt of the preamble language cited by GE:

10Dewey Loeffel Landfill NPL Listing Support Document March 2011

The HRS was developed pursuant to secti on 105(8)(A) of CERCLA. This section provides for development of criteria and priorities based on relative risk or danger to public health or welfare or the environment, taking into account the following considerations: (1) The population at risk, (2) the hazard potential of hazardous substances at such facilities, (3) the poten tial for contamination of drinking water supplies, (4) the potential for direct human contact, (5) the potential for destruction of sensitive ecosystems, (6) State preparedness to assure State costs and responsibilities, and (7) other appropriate factors. The HRS w as designed to take into account only those aspects of the above considerations (generally, considerations (1) through (5)) that reflect the risk of harm existing at releases and that can be quantified for inclusion in a
mathematical model. Once an HRS score has been assigned, the additional factors referenced in section 105(8)(A) will be consider ed in selecting releases for the NPL, and in selecting releases from the NPL for Fund-financed remedial actions. This process is set forth in Subpart F of the NCP. [See 47 FR 31180, 31192 (July 16, 1992) emphasis added.]

Accordingly, consideration of a majority of the fact ors in CERCLA § 105(a)(8)(A) is inherent in the HRS tool. EPA, however, also considers other factors, such as State preparedness, when making the decision to list a site. Finally, the consideration of “oth er appropriate factors” occurs on a case-by-case basis depending on the circumstances.

Based on the HRS documentation record for the Dewe y Loeffel Landfill site, and contrary to GE’s assertions, it is clear in this case that EPA consider ed the pertinent factors in CERCLA § 105(a)(8)(A) and did not list the Site simply because it scores above 28.50 under the HRS. For example, the HRS documentation record at proposal addresses the appropriate factors for this site in the following ways:

• The Population at Risk : Section 4.1.3.3, Human Food Chain Threat – Targets, of the HRS documentation record at proposal identifies threats to the human populations via closed fisheries
identified within the zone of contamination at the Dewey Loeffel Landfill site; these fisheries were previously used for fishing for human consum ption, but were closed due to site-related PCB
contamination.

• The Hazard Potential of Hazardous Substances at such Facilities : Sections 4.1.3.2.1, Toxicity/Persistence/Bioaccumulation, and 4.1.4.2.1, Ecosystem Toxicity/Persistence/Bioaccumulation, of the HR S documentation record at proposal consider parameters such as toxicity, persistence, a nd bioaccumulation in the evaluation of hazardous
substances at the Site for the human food chain th reat and environmental threat, respectively. These parameters are used to generate a waste characteristics factor category value for each threat, which is subsequently factored into th e threat score for the surface water overland/flood migration pathway.

• The Potential for Contamination of Drinking Water Supplies : Though not scored for HRS purposes at this site, the contamination of dri nking water and ground water is considered as discussed in the Pathways, Components, or Threats Not Scored section of the HRS
documentation record Review Cover Sheet.

• The Potential for Destruction of Sensitive Ecosystems : Section 4.1.4.3, Environmental Threat – Targets, of the HRS documentation record at pr oposal identifies threats to the environment— specifically, wetlands identified within the zone of contamination. These wetlands are considered

11Dewey Loeffel Landfill NPL Listing Support Document March 2011

subject to actual contamination; section 4.1.4. 3.1.2, Level II Concentrations, of the HRS documentation record at proposal assigns a score based on this fact.

• State Preparedness to Assure State Costs and Responsibilities : Based on prior experience with the New York Department of Environmental C onservation (NYDEC) and its October 13, 2009, letter to EPA Region 2 (docket ID EPA-HQ-SFU ND-2010-0075-0004) requesting that the Dewey Loeffel Landfill site be placed on the NPL, EPA considers the State prepared to assume its cost and responsibilities related to the Site.

As set out in this response, EPA has considered all “appropriate factors” in this listing to evaluate the relative risk the Site poses to the public health or welfare, or the environment, as required under CERCLA § 105(a)(8). While GE made general assertions that EPA has to consider all appropriate factors, GE did not specify or explain which factors under the CE RCLA and NCP listing criteria the Agency has not appropriately considered. Courts have held that the “dialogue between administrative agencies and the public is a two-way street.” Northside Sanitary Landfill, Inc. v. Thomas , 849 F.2d 1516, 1520 (D.C. Cir. 1988) (citing Home Box Office, Inc. v. FCC , 567 F.2d 9 (D.C. Cir. 1977)). GE “cannot merely state that a particular mistake was made,” rather it must show “why the mistake was of possible significance in the result the agency reaches.” See id. at 1519. In this case, GE has not explained what other factors the Agency needs to consider or why the factors the Ag ency has considered are not sufficient to place the Dewey Loeffel Landfill site on the NPL.

Regarding related comments made by GE asserting that th e Site in fact poses no threat to human health or the environment, these claims will be addressed in section 3.3, Danger to Human Health or the Environment, of this support document.

Lastly, GE cites several D.C. Circuit Court of Appeals decisions to argue that “the NPL is designed to be a list only of those sites and releas es that EPA determines pose the greatest risks to human health and the environment.” Citing Harbor Gateway Commercial Prop. Owner’s Ass’n v. EPA , 167 F.3d 602 (D.C. Cir. 1999); RSR Corp. v. EPA , 102 F.3d 1266 (D.C. Cir. 1997); Mead Corp. v. Browner , 100 F.3d 152 (D.C. Cir. 1996); Board of Regents of Univ. of Wash. v. EPA , 86 F.3d 1214 (D.C. Cir. 1996); Tex Tin Corp. v. EPA, 992 F.2d 353 (D.C. Cir. 1993); Linemaster Switch Corp. v. EPA , 938 F.2d 1299 (D.C. Cir. 1991). GE’s implication, of course, is that the De wey Loeffel Landfill site does not pose any dangers to
human health or the environment to warrant its inclus ion on the NPL. As discussed above and in several of the cases cited by GE, the HRS is a screening device to allow EPA to create a “rough” list of sites that require further study and, where appropriate, a Superfund response. See RSR Corp. , 102 F.3d at 1268 (“The HRS . . . serves as a screening device for evaluating relative risks to health or the environment . . . A site with a HRS score of 28.5 or greater is e ligible for placement on the NPL.”); Tex Tin Corp. , 992 F.2d at 354 (. . . the NPL represents only a “rough list” of priority sites . . . “); Linemaster Switch Corp.

, 938 F.2d at 1306 (“describing the NPL as ‘simply a rough list of priorities, assembled quickly and inexpensively to comply with Congress’ mandate for the agency to take action straightaway’”) (citing Eagle Picher Indus. v. EPA , 759 F.2d 922, 932 (D.C. Cir. 1985). Contrary to GE’s argument, the addition of the Dewey Loeffel Landfill site to the NPL is warranted based on its HRS score of 50.00, the consideration of factors discussed above, and the rele vant legislative history and case law regarding the

HRS.

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.

12Dewey Loeffel Landfill NPL Listing Support Document March 2011



### 3.3 Danger to Human Heal th or the Environment

Comment : GE stated that because of completed remedial actions and those contemplated in the future, the Site does not pose any significant dangers to human health or the environment. GE claimed EPA must make a determination that the Site poses a subs tantial danger to human health and the environment, and therefore should be a priority for action under CERCLA, before it can list the Site. GE claimed EPA has not done so nor, given the data of record, could it.

GE concluded that it shows that the Site as currently managed, poses no substan tial danger and thus that under relevant statute and case law, any decision to list the Site would be arbitrary, capricious, an abuse of discretion, and contrary to law, even if the S ite scores greater than 28.50. GE put forth various arguments in support of this conclusion, all of which are discussed in the subsections below.

Response : Neither CERCLA nor the NCP require that a site pose a “substantial danger” to human health or the environment before it can be added to the NPL, as GE has stated. The NPL is intended primarily to guide EPA in determining which sites warrant furthe r investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. See 75 FR 9844 (Proposed Rule, Dewe y Loeffel Landfill Site, March 4, 2010); see also 55 FR 51532 (Final Rule, Hazard Ranking System, Decemb er 14, 1990). As discussed in Section 3.2, Listing Requirements and Threat to Human Health or the Environment, of this support document, CERCLA § 105(a)(8)(a) requires EPA to determine NPL prio rities based on the “relative risk or danger to public health or welfare, or the environment.” The cr iteria EPA applies to determine this relative risk or danger is codified in the HRS, and is the Agency’s primary tool for deriving a site score based on the factors identified in CERCLA. There is no requirement of “substantial danger” in the CERCLA and NCP listing criteria. GE has not demonstrated that ther e is no unacceptable risk posed by the remaining release from the Dewey Loeffel Landfill site. The HRS ev aluation and score above 28.50 represents EPA’s determination that the Site may pose a relative risk or danger to human health and the environment and warrants further investigation under CERCLA.

The issue at hand is the placement of the Dewe y Loeffel Landfill site on the NPL based on an HRS evaluation, and these comments do not show any error in the HRS evaluation. As part of the standard Superfund process, once the Site is on the NPL, the inv estigations performed to characterize the Site will be evaluated for completeness, further information w ill be collected if deemed necessary to adequately characterize the risks posed by the Site, and based on this information, a risk assessment decision will be made determining if and what remedial action is necessary to protect human health and the environment.

As set out in this support document, EPA has not been arbitrary or capricious by proposing the Site to the

NPL.

These comments result in no change to the HRS score and no change in the decision to place the Site on
the NPL.

The following subsections address specific arguments GE raised concerning the current risk posed by the Site and show that GE is incorrect in each assertion, and that it is reasonable based on current information to conclude that there are still poten tial threats posed by the Site.

• 3.3.1 Current Remedial Actions Are Sufficient

• 3.3.2 PCB Concentrations Mainly Below Cleanup Levels

• 3.3.3 2009 Sediment Samples Show No Danger

• 3.3.4 Western Drainage

13Dewey Loeffel Landfill NPL Listing Support Document March 2011

• 3.3.5 Southern Drainage

• 3.3.6 Ground Water

• 3.3.7 PCB Levels in Fish Tissue Are Declining

• 3.3.8 Landfill No Longer a Source of PCBs to Surface Water

3.3.1 Current Remedial Actions Are Sufficient

Comment : GE stated that the remedial actions called for in the NYSDEC 2002 ROD, and subsequently carried out by GE, were deemed by NYSDEC to be pr otective of human health and the environment, and that the New York City Department of Health (NYSDOH) concurred in that conclusion.

GE also asserted that the sediment sample PCB levels in the Western Drainage and in the Mead Road Pond area in particular, are below those prior to initiation of remediation.

Response : While the remedial measures agreed upon by GE and the State were projected at the time to be sufficient to reduce the risk posed by the Site to acceptable levels, the most recent sampling events still show that unacceptable risk may remain at the Site. This is reflected in NYSDEC’s request in its October 13, 2009, letter to EPA Region 2 (docket ID EPA-HQ-SFUND-2010-0075- 0004) that the Dewey Loeffel Landfill site be placed on the NPL.

More recently, the NYSDEC Dewey Loeffel Landf ill Project Update – December, 2010 (included as Attachment 1 of this support document) notes that the 2010 two-phase study of contaminants in Tributary T11A conducted by GE confirms PCBs are still present in significant concentrations in Tributary T11A and notes that additional removals will be required.

That PCB levels in sediment in the Western drainage area and Mead Road Pond may have been reduced by removal or by time in specific locations does not necessarily mean no risk exists in these areas.

Additionally, pages 6-7 of the January 2001 NYS DEC ROD concerning Operable Unit 2 recommended several elements “to eliminate or mitigate all significant threats to human health and/or the environment.” However, two of these elements—an upgraded leach ate collection system and a new water treatment facility to manage leachate—have not yet been im plemented, leaving some threats to ground water currently unmanaged.

Additionally, even if remediation is carried out to the extent required by NYSDEC, this may or may not coincide with EPA’s requirements. Whether or not the areas still pose a risk and the effects of prior response actions will be determined at a subsequent stage in the Superfund process.

3.3.2 PCB Concentrations Mainly Below Cleanup Levels

Comment : GE pointed out that with only two exceptions, the PCB levels used in the HRS evaluation of the surface water migration pathway are at or below 1 ppm. GE asserted that these concentrations of PCBs are below those that are allowed by EPA to remain at other sites without the need for clean up, and listed a number of sites in support of this statement (see footnote 27 on page 39 of the GE comments). GE declared that these levels are not harmful to human health and the environment, as shown both by EPA actions at other sites and by the fact that the St ate of New York, at this site, concluded the removal of PCBs with levels in that range was “neither neces sary nor desirable for the protection of human health
or the environment.”

14Dewey Loeffel Landfill NPL Listing Support Document March 2011

Response : Whether or not further remediation is necessary is not determined at the time of placement of a site on the NPL; this is determined in a different step of the Superfund process during the development of a site-specific risk assessment. During this pro cess, site-specific conditions, including determination of exposure scenarios specific to the location, are used to develop site-specific cleanup criteria 1 based on risk. Therefore the 1 ppm level for PCBs in sedimen ts cited by GE as set by EPA for some other sites will not necessarily apply to the Dewey Loeffel Landfill s ite. Furthermore, some of the observed release
sediment Aroclor concentrations listed in Table 2 of the HRS documentation record at proposal equal or exceed 1 ppm (1,000 μg/kg)—see results for samples DLL-SED06A, DLL-SED07A, DLL-SED12A, DLL-SED34A, and DLL-SED47A. Add itionally, recent and historical data document other sediment concentrations at or above 1 ppm at the Site. See:

• Page 4 of the Arcadis 2010 Supplemental Investigation of Tributary T11A Phase 1 Report (added
as Reference 46 to the HRS documentation record at promulgation) indicating levels up to 10.0 mg/kg (ppm) PCBs were detected in Tributary T11A sediments.

• Page 6 of the Arcadis 2010 Supplemental Investigation of Tributary T11A Phase 2 Report (added
as Reference 47 to the HRS documentation record at promulgation) indicating levels up to 22.6 mg/kg (ppm) PCBs were detected in Tributary T11A sediments.

• Figures 3-6 and 3-7 of the 1993 Loeffel Site E nvirons Remedial Investigation Interim Phase I Report (added as Reference 48 to the HRS docum entation record at promulgation) showing
various detections of PCBs above 1 mg/kg (ppm) in lake sediments.

Thus, there is clear indication that even if the clea nup level were determined to be 1 ppm for the Site, cleanup may still be required to remediate th e areas where these samples were collected.

3.3.3 2009 Sediment Samples Show No Danger

GE asserted that the sediment samples collected in 2009 confirmed the absence of any dangers. GE stated that of the 27 locations and 38 samples collect ed, EPA found that there were observed release concentrations at 10 of these locations, but that all of the observed releases were at or below 1 ppm PCBs, with the following exceptions:

• Sample DLL-SED07A, collected in August 2009, had an Aroclor 1260 concentration at 1.3, but a sample taken by EPA 2 months earlier from the sa me location had an Aroclor concentration of 0.22 J ppm, thereby calling into question the August result.

• Sample DLL-SED34A, collected in August 2009, ha d a concentration of 1.7 J ppm for Aroclor 1260 and was the only observed release in Nassau Lake out of the 16 sample locations. Nevertheless, due to the high mois ture content in the sample, EPA adjusted that sampling result down to 0.170 ppm.

• Sample DLL-SED12A, collected in August 2009, had a result of 3.3 C ppm Aroclor 1260 and 0.2 ppm Aroclor 1232. GE claimed the meaning of the “C” qualifier was unclear and that in any event, the result for the same location in June had a concentration of 0.17 ppm Aroclor 1260 and
no detected concentration of Aroclor 1232. GE commented that the samples were both taken from an area immediately outside of the landfill, a nd not in any area that constitutes a fishery.

1 See page 1 of Risk Assessment Guidance for Superfund Volume 1 – Human Health Evaluation Manual (Part B, Development of Risk-based Preliminary Remediation Goals), included as Attachment 2 of this support document, which states “[i]nitially developed at the scoping phase using readily available information, risk-based PRGs [preliminary remediation goals] generally are modified base d on site-specific data gathered during the remedial investigation/feasibility study (RI/FS).”

15Dewey Loeffel Landfill NPL Listing Support Document March 2011

GE concluded that any contamination in the sed iments would have no impact on the human food
chain threat.

Response : As mentioned above in section 3.3.2, PCB Concentrations Mainly Below Cleanup Levels, a site-specific risk assessment and cleanup levels for Superfund purposes have not been generated for the Site. It is therefore premature to conclude that the PCB concentrations used in the HRS documentation record to score the Site pose no risk. Regarding th e specific issues GE expressed for specific samples in which PCBs were detected above 1 ppm,

• The difference in the PCB concentration f ound in samples DLL-SED07A and DLL-SED12A and that in a sample at the same location months ear lier does not negate the concentrations found in samples DLL-SED07A and DLL-SED12A. As further discussed in section 3.11.2.1 (Concentration Differences) of this support document, contamination levels in environmental samples can vary between sampling events—especi ally events two months apart in a dynamic
environment. Differences between these data do not demonstrate that there was any error in the analysis or in the identification of observed releases.

• Section 3.10.2 (Observed Release to Nassau Lake: Number of Releases) of this support document, explains that the fact that other Nassau Lake samples were not scored in the HRS documentation record at proposal as establishing mu ltiple observed releases to the lake does not negate the observed release iden tified in sample DLL-SED34A. And, there were actually several other samples with elevated PCB levels detected in Nassau Lake. Additionally, as described in section 3.10.1.2 (Adjustment of “J”-qualified Data ) of this support document, the result for sample DLL-SED34A should actually only be consid ered biased low; the adjustment applied in the HRS documentation record at proposal was a highly cautious approach, and there is no reason to adjust it lower.

• The “C” qualifier applied to DLL-SED12A is explained to have no effect in section 3.11.2.2 (“C” Qualifier) of this support document.

• That the samples DLL-SED12A/12 were both taken from an area immediately outside of the landfill, and not in any area that constitutes a fisher y is not relevant. This sample is part of the body of evidence used to identify observed rel eases to the watershed, which was performed correctly as explained in section 3.11.1 (Obser ved Release to Valatie Kill: Continuity of the Observed Release) of this support document. The zone of contamination, correctly established as described in section 3.12.1 (Zone of Contamination) of this support document, was determined
from the furthest downstream observed release. Th at a fishery is subject to actual contamination is established by the fact that a closed fisher y overlaps with this zone of contamination as discussed in section 3.12.3 (Fisheries at Observed Release Locations) of this support document. There is no HRS requirement that every observed release sample overlap with a fishery to consider that fishery a target.

3.3.4 Western Drainage

Comment : GE explained that EPA sought to evaluate only the Western Drainage in its HRS scoring. GE declared that the evidence considered in doing so, as well as the exhib its GE attached to the comments, show that the drainage does not pose any substantial dangers to human health.

Response : GE has not documented that no significant ri sk to human health remains in the Western Drainage. In fact it is clear that such a risk re mains via consumption of human food chain organisms as shown in the decision by the State not to lift the “d on’t eat” restrictions in Valatie Kill and Nassau Lake

16Dewey Loeffel Landfill NPL Listing Support Document March 2011

(see section 3.3.7, PCB Levels in Fish Tissue Are Dec lining, of this support document). Furthermore, as explained in section 3.3.2 (PCB Concentrations Mainly Below Cleanup Levels) of this support document, there is evidence of Western Drainage sediments cont aminant levels greater than a cleanup level of 1 ppm PCBs articulated by GE.

3.3.5 Southern Drainage

Comment : GE disagrees with EPA’s assertion that even though not included in the scoring, the southern drainage-way is contaminated with PCBs—the implication being that the drainage-way poses dangers to
human health and the environment. GE contends that the southern drainage-way is not deemed by the State to present any dangers, pointing to the “findings made by the [NYS]DEC in its 2002 ROD, and concurred by the [NYS]DOH, that the Southern Dr ainageway ‘has not been significantly impacted by releases of PCB from the site, based on biological samples from that area’” and noting that the ROD contained no remedial measures for this drainage. GE argued that this finding is confirmed by EPA’s 2009 sediment sampling that shows only a release of PCBs within the perimeter of the Site.

GE also objected to EPA’s statement on page 17 of the HRS documentation record that “PPE2 [the Southern Drainageway] is not used in the site sco ring because doing so would not change the site score, but contamination migrating from this location does po se a threat to downstream surface waters.” GE
claimed this statement is unsubsta ntiated and contradicted by the findings of NYSDEC in the 2002 ROD and concurred by the NYSDOH, and is belied by EPA’ s sampling that twice found PCBs in one location in the drainage at the southern tip of the Landfill at concentrations below clean-up levels. GE noted that
there were no observed releases in Nassau Lake and the Landfill. GE also characterized a statement on page 9 of the HRS documentation record at proposal st ating that there had been releases to Valley Stream
and Smith Pond as incorrect. GE reasserted that these water bodies are in the Southern Drainage and that, as explained above, there were no ob served releases to either one.

Response : That the HRS documentation record at pr oposal does not present information to show significant contamination in the Southern Drainagewa y does not change the possi bility that prior releases from the Landfill could follow this route to Valley St ream, Smith Pond, and Nassau Lake. Therefore, it is appropriate to discuss the Southern Drainageway as a possible contaminant migration route. As further explained in section 3.4 (Other Possible Pathway Thre ats) of this support document, the threat from the Southern Drainageway described in the HRS docum entation record is based on the finding that southeasterly flowing runoff from the Landfill—an unc ontained source of hazardous material—flows into the southeast drainage ditch (see pp. 7, 48 of R ecord of Decision, Dewey Loeffel Inactive Hazardous Waste Disposal Site, Operable Unit 3, Reference 6 of the HRS documentation record at proposal; p. 1 of 15-mile Surface Water Pathway Map, Reference 25 of the HRS documentation record at proposal; and pp. 13, 17 of the HRS documentation record at proposal).

Though there is no evidence of current significant contamination currently affecting the Southern Drainageway beyond the observed release establishe d in sample DLL-SED26A, it still may present a danger, and EPA may investigate this possibility at a later stage in the Superfund process; if no indication of risk is determined at that point, no action will be taken.

Regarding GE’s assertion that there is no observed rel ease in Nassau Lake, this argument is refuted in section 3.10 (Observed Release to Nassau Lake) of this support document.

3.3.6 Ground Water

Comment : Regarding ground water, GE asserted that “in more than 20 years of GE’s monitoring of groundwater in the environs of the Site, there have only been four minor detections of PCBs,” and these

17Dewey Loeffel Landfill NPL Listing Support Document March 2011

were not the types of Aroclors found in the observed releases to the Western Drai nage. GE also stated that “the State and GE have taken, and continue to take, numerous actions to prevent any significant risk to human health or the environment from any contam inants that may have migrated from the Site in groundwater.”

Response : As further explained in section 3.4 (Other Possible Pathway Threats) of this support document, the NYSDEC clearly concludes on page 6 of the State’s January 2001 Record of Decision (ROD) concerning Operable Unit 2 (presented as Re ference 9 of the HRS documentation record at proposal) that:

Hazardous wastes disposed include a wide variety of volatile organic compounds (VOCs), and polychlorinated biphenyls (PCBs), some of which has migrated from the site to the overburden and bedrock groundwater giving rise to significant threats to the public health and the environment, viz.,

-significant environmental damage associated with impacts of contaminants (PCBs & VOCs) on both the shallow overburden and bedr ock aquifers beneath the site which has been used for human water consumption a nd is now unusable due to the presence of PCBs and VOCs above applicable standards (see p. 6 of Record of Decision, Dewey Loeffel Site, Operable Unit 2, Reference 9 of the HRS documentation record at proposal).

Pages 6-7 of the State’s ROD recommended several el ements “to eliminate or mitigate all significant
threats to human health and/or the environmen t.” However, two of these—an upgraded leachate collection system and a new water treatment facility to manage leachate—have not yet been implemented, leaving some threats to ground water currently unmanaged.

Additionally, the Loeffel Environs October 2010 Groundwater Sampling Event Monitoring Report prepared by Geo Trans, Inc. on behalf of GE (adde d as Reference 49 to the HRS documentation record at promulgation) provides evidence of historical and cu rrent continued ground water contamination at the Site (see Tables 2-3 and 2-4 of that document on pa ges 22-25 for the most recent ground water sample analytical results, and tables in Appendix A of that document for summarized historical results).

Furthermore, page 2 of the NYSDEC Dewey Loeffel Landfill Project Update – December, 2010 (included as Attachment 1 of this support document) notes that maintenance of residential treatment systems by a GE consultant continues, indicating that ground water contamination remains.

3.3.7 PCB Levels in Fish Tissue Are Declining

Comment : GE claimed that the PCB levels in fish tissu e have decreased significantly since remediation of the Site began in the mid-1980s. It asserted th at the statement by EPA that recent fish tissue data
indicated PCBs still affect several species in surface waters downstream of the facility may be true , but that “it does not tell the whole story.” GE identified the following considerations:

• EPA relied only on fish tissue data through 2008 even though 2009 data was available

• The Mead Road Pond and the Tributary T11A are too small for recreational fishing and too small to support fish large enough for reasonable human consumption.

• Fish tissue PCB concentrations in the drainage ditch above Mead Road Pond and in the former pond have declined substantially since remediation activities began in 2001.

• Fish tissue PCB levels in fish caught in Tributar y T11A have declined since remediation activities
were conducted in 2002-2003.

18Dewey Loeffel Landfill NPL Listing Support Document March 2011

• Fish tissue PCB Levels in fish sampled from the Valatie Kill and in Area 28 have decreased since remediation between 2001 and 2003, and in 2003 and 2004, respectively. GE noted that the
lowest concentrations in some of th ese locations were recorded in 2009.

• There has been a significant decreas e in edible-portion fish tissue for fish caught in Nassau Lake since remediation began in the mid-1980s.

• Data from fish sampling upstream of the Site show detectable levels of PCBs and thus that PCB concentrations are not solely attributable to the Site.

Response : Though PCB levels in fish have initially dec lined, PCBs continue to pose an ongoing risk. Clear evidence for this is provided by the fact th at the NYSDOH “don’t eat” advisories remain in place
for fish in Nassau Lake and Valatie Kill between C ounty Rt. 18 and Nassau Lake (see pages 19 and 20 of the NYSDOH Chemicals in Sportfish and Game, 2010-20 11 Health Advisories, added as Reference 50 to the HRS documentation record at promulgation).

Additionally, though some decline in fish tissue PCB levels was observed following cleanup efforts, contamination remains and PCB levels in fish tissue have become more static in recent years (see conclusions on pages 50-51 of the NYDEC presentation Valatie Kill and Nassau Lake PCBs 2009 Data
and Trends in Fish 2 , added as Reference 51 to the HRS doc umentation record at promulgation).

3.3.8 Landfill No Longer a Source of PCBs to Surface Water

Comment : GE asserted that “[b]oth the State and EPA have concluded that the remediation of the Site by the State in 1983-1984, with the funding from GE, stopped any further migration of PCBs from the Site to any surface water drainageway.”

Response : HRS Section 1.1, Definitions , defines a site as “[a]rea(s) where a hazardous substance has been deposited, stored, disposed, or placed, or has ot herwise come to be located. . . .” Source 1 (the Landfill) and its related releases of hazardous mate rials—where the contaminants from Source 1 have come to be located—are appropriately considered part of the site in the HRS evaluation. The observed
releases established in the HRS docum entation record at proposal are attributed to the Landfill, and still pose a threat to humans and the environment. And, as described previously in this section, evidence of continued contamination in Tributary T11A from historical landfill releases is also a concern.

Additionally, as described on page 13 of the HRS doc umentation record at proposal, there is no liner associated with the landfill leachate control system, a nd the Landfill is therefore not absolutely contained for the purposes of the HRS evaluati on (see HRS Section 4.1.2.1.2.1.1, Containment , and HRS Table 4-2, Containment Factor Values for Surface Water Migration Pathway ).

Furthermore, the leachate collection system currently requires tanker truck transport of leachate to an offsite disposal facility. However, this arrangement has not been approved as the final solution for the contamination at the Landfill. The means by which this contamination will be addressed in the future is not certain, and thus poses a potential risk at the Site.

2 Note that the information used to prepare this presenta tion came largely from the 2009 Letter from GE consultant ARCADIS to NYSDEC, Subject: Loeffel Site Environs Oper able Unit 3 2009 Biological Monitoring Data Summary (added as Reference 52 to the HRS documentation record at promulgation, see pages 9708, 9712, 9719, 9721, 9730, 9732, 9736, 9739, 9749, 9756, 9762, 9780, 9786, 9797, 9813, 9817, 9821, 9861, 9869, 9877, 9883, 9885, 9933, 9935, 9937, 9945, 9949, 9959, 9965, 9967).

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### 3.4 Other Possible Pathway Threats

Comment : GE stated that other potential pathways were not scored, nor did EPA attempt to score them and that the other pathways do not present a significan t danger. GE commented that “[n]onetheless, EPA claims in the HRS Documentation Record, without any factual substantiation, that the Southern Drainageway and the groundwater pathway are contamin ated with PCBs, the implication being that they pose dangers to human health and the environment.” Commenters in favor of listing identified their concerns regarding the threat posed by the ground water contamination.

GE explained that EPA had not attempted to score the Southern Drainage or the ground water pathway and “[i]n any event ... those pathways do not present a significant risk that would warrant listing this Site on the NPL.” GE claimed that “the [NYS]DEC’s 2002 ROD concluded that no remedial action was needed because that drainage-way ‘has not been significantly impact ed by releases of PCB from the site.’” GE also claimed that, with the exception of sa mples taken within the fenced perimeter of the Site, there were no observed releases of PCBs to the Southern Drainageway.

GE asserted that a statement in the HRS documentation record that PCBs have migrated from the facility to underlying aquifers is misleading. GE agreed it w as true that PCBs had been found in wells at the Site, but stated that migration away from the Landfill, if occurring at all, is “quite limited.” GE pointed out that “. . . in more than 20 years of GE’s monitoring of groundwater in the environs of the Site, there have only been four minor detections of PCBs - all of wh ich were Aroclors 1242, 1248, or 1254.” GE went on to point out that these are not the same Aroclors (Aroclors 1260 and 1232) that EPA identified in
observed releases. GE further claimed that an EPA statement that an Aroclor exists as a dense, non aqueous phase liquid (DNAPL) is misleading, based on one sample collected from within the containment system (i.e., collected from within the slurry wa ll) showing PCBs. GE concluded that “EPA’s implication, therefore, that PCBs exist as a DNAPL in a groundwater plume migrating outside of the Site is simply incorrect.” GE declared that the State and GE have taken and cont inue to take, numerous actions to prevent any significant risk to human h ealth or the environment from any contaminants that may have migrated from the Site in ground water.

Response : The scoring of one migration/exposure pathwa y is sufficient for the HRS evaluation and NPL listing of a site if the score from that evaluation qua lifies the site for placement on the NPL. The purpose of listing a site on the NPL is to determine if there is a reasonable indication that EPA should continue to investigate the site under the Superfund program and s ubsequently determine what response, if any, is appropriate. The discussions in the HRS documen tation record indicating that the Southern Drainageway 3 and the ground water pathway are contaminat ed were presented in the HRS documentation record to notify the public that while the contamina tion associated with them is not included in the HRS score for the Site, contamination is present, and the Agency will further examine the possible threat posed by this contamination during other stages of the Su perfund process. Furthermore, the statements are substantiated in the reference material provided in the HRS documentation package. These discussions
were included in the HRS documentation record b ased on the information provided in the reference material included with the HRS documentation record at proposal, including Record of Decision, Dewey Loeffel Inactive Hazardous Waste Disposal Site, Operable Unit 3 (Reference 6 of the HRS documentation record at proposal) ; Record of Decision, Dewey Loeffel Site, Operable Unit 2 (Reference 9 of the HRS documentation record at proposal); 15-mile Surface Water Pathway Map , Reference 25 of the HRS documentation record at proposal; and Phase II Hydrogeologic Report, Loe ffel Site Environs Remedial Investigation (Reference 10 of the HRS documentation record at proposal).

3 The Southern Drainageway discussed by GE is referred to as th e southeast drainage ditch in the HRS documentation record at proposal.

20Dewey Loeffel Landfill NPL Listing Support Document March 2011

Southeast Drainage The HRS documentation record at proposal states that th e southeast drainage ditch “. . . is not used in the site scoring because doing so would not change the s ite score, but contamination migrating from this location does pose a threat to downstream surface wate rs” (see p. 17 of the HRS documentation record at proposal). The threat is based on the finding that southeasterly flowing runoff from the Landfill, an uncontained source of hazardous material, flows into the southeast drainage ditch (see pp. 7, 48 of Record of Decision, Dewey Loeffel Inactive Hazardous Waste Disposal Site, Operable Unit 3, Reference 6 of the HRS documentation record at proposal; p. 1 of 15-mile Surface Water Pathway Map , Reference 25 of the HRS documentation record at proposal; and pp. 13, 17 of the HRS documentation record at proposal). The fact that the HRS documentation record at pro posal does not present information to show significant contamination in the southeast drainage ditch does not change the fact that contamination from the
Landfill could follow this route to Valley Stream, Smith Pond, and Nassau Lake. Therefore, it is appropriate to discuss the southeast drainage ditc h as a possible contaminant migration route in the documentation record. EPA is simply alerting the public that further investigations are needed to fully characterize the threat posed by contamination migrating from the Landfill via this migration route.

Ground Water Threat Regarding the possible threat posed by migration via ground water, the NYSDEC clearly concludes on page 6 of its January 2001 Record of Decision (ROD) concerning Operable Unit 2 (Reference 9 of the HRS documentation record at proposal) that:

Hazardous wastes disposed include a wide variety of volatile organic compounds (VOCs), and polychlorinated biphenyls (PCBs), some of which has migrated from the site to the overburden and bedrock groundwater giving rise to significant threats to the public health and the environment, viz.

,

-significant environmental damage associ ated with impacts of contaminants (PCBs & VOCs) on both the shallow over burden and bedrock aquifers beneath
the site which has been used for huma n water consumption and is now unusable due to the presence of PCBs and VOCs above applicable standards (see p. 6 of Record of Decision, Dewey Loeffel Site, Operable Unit 2 , Reference 9 of the HRS documentation record at proposal).

It is also the conclusion of NYSDEC on page 16 of Reference 9 that:

. . . migration of contaminants from the disposal site has apparently continued, even after construction of the cap, slurry wall, and leachate collection system.

This conclusion is evidenced by a VOC plume that exte nds one-half mile to the south of the disposal site (see pp. 16 and 82 of Record of Decision, Dewey Loeffel Site, Operable Unit 2 , Reference 9 of the HRS documentation record at proposal). Further, NYS DEC describes the shallow bedrock ground water as “significantly contaminated” and mentions that three r esidential wells north of Central Nassau Road have been impacted by VOCs since 1992 (see p. 17 of Record of Decision, Dewey Loeffel Site, Operable Unit

2 , Reference 9 of the HRS documentation record at proposal).

Pages 6-7 of that same ROD also recommend several elements “to eliminate or mitigate all significant
threats to human health and/or the environmen t.” However, two of these—an upgraded leachate collection system and a new water treatment facility to manage leachate—have not yet been implemented, leaving some threats currently unmanaged.

21Dewey Loeffel Landfill NPL Listing Support Document March 2011

Additionally, the Loeffel Environs October 2010 Groundwater Sampling Event Monitoring Report, prepared by Geo Trans, Inc. on behalf of GE (adde d as Reference 49 to the HRS documentation record at promulgation) provides evidence of historical and cu rrent continued ground water contamination at the Site (see Tables 2-3 and 2-4 of that document on pa ges 22-25 for the most recent ground water sample analytical results, and tables in Appendix A of that document for summarized historical results).

Furthermore, the NYSDEC Dewey Loeffel Landfill Project Update – December, 2010 (included as Attachment 1 of this support document) notes that ma intenance of residential treatment systems by a GE
consultant continues.

Differing Aroclor Mixtures Regarding GE’s claim that different Aroclors we re found in EPA’s observed release documentation than what GE has documented in 20 years of ground water sampling, the overburden ground water in the vicinity of the containment cell was documente d by NYSDEC as being “contaminated above Class GA groundwater standards for numerous chemicals, includi ng benzene, toluene, xylene, trichloroethene, and PCB (Aroclor-1260)” (see p. 16 of Record of Decision, Dewey Loeffel Site, Operable Unit 2 , Reference 9 of the HRS documentation record at proposal). This is the same Aroclor mix that was also documented in the HRS source and the observed release sample (see pp. 14, 20-23 of the HRS documentation record at proposal). Therefore, to the extent that GE is sugg esting that ground water contamination in the vicinity
of this site is somehow not associated with the facility because different substances were allegedly documented in the ground water than in the observed release, this is unfounded. Also, considering the conclusions from the NYSDEC ROD quoted above, it is not misleading to include the statement that some hazardous substances, including PCBs, have migrated from the fac ility to underlying aquifers, and it is not misleading to give the public notice that, alt hough it was not a factor in the HRS site score, ground
water contamination is a concern that warrants further investigation.

Existence of Aroclor DNAPL Despite GE’s suggestion to the contrary, it is not implied that Aroclor-1260 as a DNAPL plume exists in any particular location in relation to the Landfill (on-site , off-site, etc). It is simply pointed out that GE found during its remedial investigations Aroclor-1260 as a DNAPL, which is reported by GE itself in Phase II Hydrogeologic Report, Loeffel Site Environs Remedial Investigation (see p. 23 of Reference 10 of the HRS documentation record at proposal). Fu rther investigations are needed to determine the significance of this finding.

It is not necessary for EPA to completely describe all c onditions at a site at the time of listing. The HRS is a screening tool that uses limited resources to dete rmine whether a site should be placed on the NPL for possible Superfund response. EPA must balance the n eed to fully characterize a site with the limited resources available to collect and analyze site data. A subsequent stage of the Superfund process, the RI,
characterizes conditions and hazards at the Site more comprehensively. The HRS is intended to be a “rough list” of prioritized hazardous sites; a “first step in a process--nothing more, nothing less” Eagle
Picher Indus. v. EPA , 759 F.2d 922, 932 (D.C. Cir. 1985) (E agle Picher II). EPA would like to investigate each possible site completely and thorou ghly prior to evaluating a site for proposal to the NPL, but it must reconcile the need for certainty befo re action with the need for inexpensive, expeditious procedures to identify potentially hazardous sites. Th e courts have found EPA's approach to solving this conundrum to be “reasonable and fully in accord with C ongressional intent.” Eagle Picher Industries, Inc.

v. EPA , (759 F.2d 905 (D.C. Cir. 1985) Eagle Picher I).

Therefore, the discussion in the HRS documentation record is supported by references, and furthermore, these statements are sufficient to inform the public that contaminants transported via these migration routes warrant further investigation.

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### 3.5 First Step in Process/ Serving Public Interest

Comment : GE declared that listing the Site will not serve the public interest. Further, GE asserted that EPA cannot justify listing the Dewey Loeffel Landfill site by claiming that listing is only the “first step” in the NPL process in which EPA determines whether the Site poses any dangers. GE pointed out that the Site has been investigated for 30 years and any da ngers present have been assessed. Therefore, GE
claimed that there “is no need for the Site to be listed on the NPL merely in order for EPA to conduct further investigations,” and it makes no sense for EPA to “jump in, without any legitimate reason for doing so, begin investigating the Site anew, and prop ose remedial actions potentially inconsistent with successful actions that have already been undertaken at great effort and expense.”

GE also made two other points. It stated that EPA was aware of the Site and the potential dangers it posed at the time of the Seven Sites Agreement, that EPA determined that the State should take the lead at the Site, and that it appeared that from 1980 until 2009 EPA was satisfied to allow the State to investigate
and remediate the Site. It also asserted that EPA ca nnot excuse its failure to sh ow by record evidence that a danger truly exists at the Site by claiming that the listing process is merely the first step in EPA’s effort to determine whether in fact there are any dangers. GE concluded,“[a]s such, under the law, EPA would not be justified in listing the Site on the NPL, regardless of whether it scores 28.50 or above on HRS.”

Response : GE highlights in its comments the courts’ interpretation of the intent of the HRS. Eagle Picher
Indus. v. EPA found that the intention of the HRS as a “rough list” of prioritized hazardous sites; a “first step in a process--nothing more, nothing less” to be reasonable (Eagle Picher Indus. v. EPA , 759 F.2d 922, 932 (D.C. Cir. 1985) (Eagle Picher II)). In referring to a “first step,” the Agency is referring to the first step in EPA’s process, the identification of the possibl e need for further investigation under CERCLA, which must be taken before the Site may be addressed under CERCLA authority. It is not referring to a first step ever taken at a site by any individual, government entity, or organization.

Consistent with CERCLA, EPA has in place an orderl y procedure for identifying sites where releases of
substances addressed under CERCLA have occurred or may occur, placing such sites on the NPL, evaluating the nature and extent of the threats at such sites, responding to those threats, and deleting sites from the NPL. The purpose of the initial step is simply to inform the public that the site poses sufficient threat to human health and the environment to warrant further investigation. The evaluation or RI/FS phase involves on-site testing to define the nature and extent of the threat posed by the contamination and to identify alternatives for remedial action. All site investigation work, as well as any remediation undertaken by GE or the state performed to date will be considered during this phase of the Superfund process, and then, based on the findings of the risk assessment and the GE/NYSDEC site investigations, a determination of what further response actions, if any, are necessary will be identified. Therefore, successful actions that have already been undertaken in the past will be taken into consideration. Next in the process, after a period of public comment, the Ag ency responds to identified threats by issuing a Record of Decision that documents the Agency’s selecti on of the most appropriate remedy, if a remedy is required. EPA could also issue a no action ROD if it is determined that the threats are being adequately addressed. The selected remedy is implemented during the remedial design/remedial action phase. Finally, the site may be deleted from the NPL when the Agency determines that no further response is appropriate

.

The commenter stated that EPA was aware of the Site and the potential dangers it posed at the time of the Seven Sites Agreement, that EPA determined that the State should take the lead at the Site, and that EPA was satisfied to allow the State to investigate and re mediate the Site. While EPA was aware of the Site, New York State was addressing Site risks and unless a nd until New York State requested otherwise, there was no need for duplicative governmental efforts. When New York State determined that it could no longer ensure that the Site could be properly addressed and that contamination at the Site could still pose

23Dewey Loeffel Landfill NPL Listing Support Document March 2011

a risk to human health and the environment, it request ed that EPA list the Site on the NPL and take over the lead using CERCLA authority. Note that while GE entered into the Seven Sites Agreement with New York State, acknowledged by GE, this agreement is in no way binding on EPA.

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.



### 3.6 Delay Cleanup

Comment : GE asserted that indeed “far from being of assistance in assessing or remediating significant dangers to human health or the environment (which are currently nonexistent), an EPA listing decision
and further EPA involvement at this Site will serve only to delay currently planned additional remedial action while EPA investigates the Site looking for da ngers that do not exist.” GE commented that:

EPA’s involvement at the Site now, more th an 30 years after the Agency first became aware of the Site and after 30 years of inves tigations and remedial actions by the State and by GE, would not promote the protection of human health or the environment. Instead, EPA involvement would merely slow down, and possibly halt, the remedial actions that are already in progress.

GE continued that placing the Site on the NPL will delay future sampling, monitoring, and remedial
activities. GE commented that it had been c onducting soil and sediment removal actions, sampling activities in surface water drainage-ways, monitoring of ground water, maintenance of well treatment systems, and vapor intrusion studies. GE threatened that an EPA decision to become involved in the Site:

would potentially bring all such activities to a halt. Since EPA would presumably be reevaluating the remedies for all three OUs [ope rable units], there would be little incentive for GE to continue, on a voluntary basis, to conduct monitoring and sampling, or for GE to agree to perform any additional remediation.

It claimed that:

GE would have no guarantees, for instance, th at EPA would not ultimately determine that a different remedy, or an inconsistent remedy , should be undertaken. As such, there is a good chance that future actions at the Site would stop while EPA conducts new studies
and evaluates de novo what the best remedy is for the different operable units at the Site - even though there is no reason, from a human health or environmental perspective, to do

so.

Response : GE’s concern that listing would delay ongoi ng remediation is unfounded. Placement of the Dewey Loeffel Landfill site on the NPL does not necessarily lead to delay of planned response actions or associated negotiations. All site investigation work, as well as any remediation undertaken by GE or the State of New York performed to date and that which is currently proceeding, will be considered in other steps of the Superfund remediation process, such as when performing an RI, including a Superfund risk assessment for the Site. Then, based on the findings of the RI, a determination of what further remedial actions, if any, are necessary will be made.

Consistent with CERCLA, EPA has in place an orderl y procedure for identifying sites where releases of
substances addressed under CERCLA have occurred or may occur, placing such sites on the NPL, evaluating the nature and extent of the threats at such sites, responding to those threats, and deleting sites from the NPL. The purpose of the initial two steps is to develop the NPL, which identifies for the states

24Dewey Loeffel Landfill NPL Listing Support Document March 2011

and the public those sites that appear to warrant remedial action. The evaluation or RI/FS phase involves on-site testing to define the nature and extent of the threat posed by the contamination and to identify alternatives for remedial action. After a period of public comment, the Agency responds to those threats by issuing a Record of Decision which selects the most appropriate remedy. The selected remedy, if any, is implemented during the remedial design/remedial ac tion phase. Finally, the site may be deleted from the NPL when the Agency determines that no further response is appropriate.

Potentially responsible parties (PRPs) may affect remedy selection, as can any other member of the public, through the public comment process mentione d above. PRPs may undertake the RI/FS and/or remedial design/remedial action stages under EPA supe rvision and pursuant to appropriate agreements with EPA (under enforcement authorities of CE RCLA). The listing process does not encumber or preclude PRPs from entering into these agreements. Th e Agency has entered into many such agreements between proposal and promulgation, and such an alternative is available to the commenter.

Furthermore, placement of the Dewey Loeffel Landf ill site on the NPL simply provides EPA with the ability to address the Site under CERCLA authority. Placement of a site on the NPL does not assign liability nor necessarily result in site remediation. These actions, if found to be necessary, are performed during other stages of the Superfund process.

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.



### 3.7 Motive for Listing

Comment : GE asserted that the motive for listing this site is improper, that EPA is abusing the scoring process to accomplish a goal not germane to CERCLA, and that this abuse would, in and of itself, make any final listing decision arbitrary, capricious, an abuse of discretion, and contrary to law.

GE discussed a 1980 Administrative Consent order with the State of New York, commonly referred to as the “Seven Sites Agreement.” Under this agreement, GE says it performed certain investigations and paid the State an amount of money equal to 81% of the estimated cost of a remedy for the Site and conducting long term maintenance. In return , the State released GE from any further liability for remedial actions with respect to the Landfill itself and for any off-site ar eas that are affected by contaminants that migrated from the Landfill after execution of the agreement. GE noted that pursuant to this agreement the design and construction of the remedy within the Landfill are the State’s responsibility, as is the responsibility of the extraction remedy selected by the State for off-site ground water to the extent that the contamination is due to migration from the Landfill after the agreement execution.

GE stated that it is obvious from EPA’s own sampling data cited in the HRS documentation record that the Site does not pose any significant hazard to human h ealth or the environment. GE declared that:

[T]he State’s primary, if not only, reason fo r requesting that EPA list the Site – and EPA’s primary, if not only, reason for propos ing to do so – is the State’s and EPA’s belief that listing will allow EPA to compel GE to undertake, or fund, groundwaterrelated remedial actions within the landfill wh ich are in fact the responsibility of the State and for which the State has agreed not to pursue GE.

GE cited to a statement in a NYSDEC 2009 document in support of this claim (GE Exhibit 5). GE quoted this document, which had been prepared for a discussion with elected officials and the general public to explain the rationale for listi ng the Site, as expressly stating that NYSDEC is nominating the Site to the NPL due to “the legal challenges to pursuing responsible parties to pay

25Dewey Loeffel Landfill NPL Listing Support Document March 2011

for the work in the first instance or through co st recovery,” and specifically, because “under the CERCLA statute, the EPA may be able to invo lve the responsible parties in the on-site
remediation which the State of New York forfeite d in the Seven Sites Agreement in the early 1980s.” GE also pointed out that this document states that “EPA would likely pursue responsible parties, including GE, to fund this work in the first instance. Importantly, EPA is not bound by the above referenced Seven Sites Agreement.” GE claimed that EPA’s representatives made statements at a public meeting that confirmed that this was the motive for the request to list the Site, citing a resolution by the Town of Schodack (G E exhibit 30) in support of this statement.

GE noted that EPA was not a party to the agreemen t and thus did not expressly grant GE a release from liability for these operations. GE claimed that:

The evidence shows that the State has requ ested EPA’s involvement so that EPA can pursue GE for the costs of, or for undertaking, these operations that the State committed to do itself. In other words, the evidence indicates that the underlying purpose for the proposal to list the Site is that the State and EPA believe that, by listing the Site, EPA can compel GE to undertake action for which the State has relea sed GE from liability.

GE also disputed that EPA can legally compel GE to take or fund remedial measures for which it has been released by the State, especially given EPA’s involvement at this site since 1979.

GE asserted that the State has not completed the d esign nor begun the construction of enhanced on-site leachate collection and treatment systems called for in the 2001 ROD for the Site, and that the State now claims it has run out of money to do so. GE declares that:

In order to escape the consequences of this failure to carry out its responsibilities, the
State has now asked EPA to list the Site on th e NPL and to become involved at the Site,
because the State believes this will allow EPA to direct GE to fund, or implement, the remedy within the landfill, since EPA (un like the State) has not released GE from liability for response actions with respect to the landfill itself.

GE concluded that:

Thus, instead of recognizing GE’s actions to remediate and improve conditions in the Western Drainageway, EPA seeks to cobble together supposed evidence that that pathway still poses a danger in order to try to circumvent the Seven Sites Agreement and allow the State to escape from the obligations th at it agreed to undertake with respect to different areas (relating to the landfill itsel f and off-site groundwater) that EPA has not
scored.

GE stated that the purpose of the listing process is to identify sites that present significant dangers to human health and the environment and that are among the worst sites or greatest priorities in need of remedial action. Based on this, GE claimed that:

EPA cannot legally abuse this regulatory m echanism to accomplish ends not germane to the statute, such as to allow State authorities to renege on commitments that were made to PRPs at a site, in return for substantial co mmitments of money and work by those PRPs.

GE cited to several court decisions in support of this claim. It also stated that by listing the Site, EPA would be rewarding the State for its failures to prope rly utilize funds provided to it by GE and potentially

26Dewey Loeffel Landfill NPL Listing Support Document March 2011

allow the State to nullify the releases it gave to GE. At the same time EPA would be punishing GE when it had cooperated fully with the State a nd had expended considerable effort.

GE noted that a result would be that PRPs would be he sitant in the future to enter into agreements with States and take response actions due to a concern that any releases obtained from a State could be nullified by the State seeking to involve EPA after the fact.

GE concluded:

In short, a decision to list the Site on the N PL, despite the fact th at the evidence clearly shows that the Site presents no dangers to human health or the environment, in order to allow the State to renege on its obligations and commitments under the Seven Sites Agreement, would be arbitrary, capricious, an abuse of discretion, and contrary to law.

Response : EPA has not been arbitrary and capricious or a bused its discretion in the actions leading to and in the proposal of this site. This site has been placed on the NPL because it has an HRS score greater than 28.50 and meets all CERCLA and NCP listing criteria. As is shown throughout this support document, the comments submitted on the proposed listing of this site have not resulted in a change in the overall site score, although some modifications to the evalua tion have been made. No commenter has identified that any of the information used in the HRS evaluation of the Site is inadequate for the given purpose or arbitrarily or capriciously select ed for use in the evaluation.

EPA is not a party to the 1980 Administrative Consen t Order (Seven Sites Agreement) with New York and nothing precludes EPA from engaging in the CERCL A listing process, which is independent of the Administrative Consent Order. Prior remediation performed under the Administrative Consent Order will be considered when EPA determines what remedies, if any, are necessary.

In its comments, GE referred to the Seven Sites Agr eement repeatedly in an attempt to characterize that agreement as the underlying basis for the current listi ng. GE argued that EPA is improperly listing the Site because of the State of New York’s alleged conduct under the Seven Sites Agreement. This characterization is not true. As discussed through out this support document, EPA is listing the Site because it meets all CERCLA and NCP listing criteria. As noted above, the CERCLA listing process is independent of the Seven Sites Agreement (of which GE agrees that EPA is not a party) and GE has not shown how this agreement affects the HRS score or the d ecision to list the Site on the NPL. In support of its argument, GE cited several Administrative Procedure Act cases for the proposition that EPA can only
consider factors authorized under CERCLA to list th e Dewey Loeffel Landfill site and may not consider the State of New York’s alleged conduct under the Se ven Sites Agreement. Citing Motor Vehicle Mfrs.

Ass’n v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29 (1983); Farmworker Justice Fund, Inc. v. Brock, 811 F.2d 613 (D.C. Cir. 1987), vacated as moot , 817 F.2d 890 (D.C. Cir. 1987); D.C. Fed’n of Civic Ass’ns v. Volpe , 459 F.2d 1231 (D.C. Cir. 1971). These non- NPL cases, however, are not dispositive and GE has not refuted EPA’s consideration of all appropriate CERCLA and NCP listing criteria in placing the Site on the NPL. To the contrary, listing in th is case is appropriate based on the Site’s HRS score, the consideration of factors discussed in section 3.2 (Listing Requirements and Threat to Human Health or the Environment) of this support document and the re levant legislative history and case law regarding the HRS, as well as the listing request from the State of New York (docket ID EPA-HQ-SFUND-2010-0075- 0004). The listing is not a result of alleged actions by the State of New York under the Seven Sites Agreement.

Regarding risk at the Site, as explained in section 3. 3 (Danger to Human Health or the Environment) of this support document, the HRS evaluation itself a nd score above 28.50 represents EPA’s determination

27Dewey Loeffel Landfill NPL Listing Support Document March 2011

that the Site may pose a threat to human health a nd the environment and warrants further investigation under CERCLA; this determination alone is su fficient reason to list the Site on the NPL.

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.



### 3.8 Liability/Responsibility for Cleanup

Comment : GE submitted comments that address the liabilit y for further action and the responsibility for past, present, and future remediation activities. GE commented that the HRS documentation record attempts “to convey the misleading impression that GE is a wrongdoer with respect to this Site” and that Bendix and Schenectady Chemicals were the only other contributors to the alleged problems at the Site. GE stated that GE paid Dewey Loeffel and variou s Loeffel-related companies to dispose of GE’s industrial waste and that “GE was not the entity that placed these wastes in the landfill in an allegedly environmentally improper manner or the entity that impr operly managed the landfill.” GE stated that the State of New York and the United States wastes, in cluding waste oil potentially containing PCBs, were also treated or disposed at the Site.

GE commented the State has been the operator of the Site since 1985 and that any migration of contaminants that continues in the ground water path way from the Site would be the result of the State and its contractors failure to properly remediate the Site in 1983 and 1984, and the state’s subsequent failure to perform appropriate maintena nce of the Site until at least 1991.

GE asserted that the statement in the HRS docum entation record that since 1985, the NYSDEC has overseen operation, maintenance, and monitoring activities both overstates and understates the work
NYSDEC has done in connection with the Site. GE no ted that the NYSDEC has not just overseen but has been the operator of the Site. GE argued that from 1984 until 1991, and perhaps beyond, the State “did virtually nothing” to monitor and maintain the Site.

GE also claimed that EPA’s statement also imp lies the NYSDEC has only engaged in monitoring and maintenance because it has installed recovery wells and recovers ground water a nd trucks it off-site for
commercial treatment.

GE claimed that the HRS documentation record gives the wrong impression that the State properly
maintained the Site from 1985 forward. GE stated th at, in fact, despite payments by GE, Bendix, and Schenectady to fund long-term monitoring and mainte nance, the State did not remove any leachate from the Site until 1991, even though the State knew the leach ate tank was full and needed to be emptied.

GE concluded that:

EPA, in proposing to list the Site, is not only trying to assist the State in reneging on its commitment to GE to release GE from any fu rther liability for the Site due to GE’s payment of settlement monies, but it is also in effect disregarding the State’s inadequate construction practices and its failure to r esponsibly operate the Site since 1984.

Response : Neither the liability for further remedial action nor the identity of those who performed past response actions was considered in the decision to lis t the Site on the NPL. In as much as this comment concerns liability for the contamination at this site, whether any party may be liable for response costs is not considered when evaluating a site under the HRS; liability for cleanup is not established at the time of NPL listing and does not impact the listing decision. The NPL serves primarily as an informational and management tool. The identification of a site fo r the NPL is intended primarily to guide EPA in

28Dewey Loeffel Landfill NPL Listing Support Document March 2011

determining which sites warrant further investigation to assess the nature and extent of the human health
and environmental risks associated with the site and to determine what CERCLA-financed remedial action(s), if any, may be appropriate. Identificati on of a site for the NPL does not reflect a judgment on the activities of the owner(s), operator(s), or generator(s) associated with a site. It does not require those persons to undertake any action, nor does it assign a ny liability to any person. Subsequent government actions will be necessary in order to do so, and these actions will be attended by all appropriate procedural safeguards. This position, stated in the legislative history of CERCLA, has been explained in the Federal Register (48 FR 40759, Septembe r 8, 1983 and 53 FR 23988, June 24, 1988).

Thus, whether or not GE, the State of New York, or other private or governmental entities are liable for further remedial action has no impact on the promulgation of this site on the NPL.

Regarding responsibility for the selection, completion, a nd adequacy of past, present, and future remedial actions, these are also generally not factors considered in the listing decision. Previous remedial or removal actions are only considered in the sense that certain qualifying removals are reflected in a site score (see HRS Preamble Section III.Q, 55FR 51567 December 14, 1990 for further detail on what constitutes a qualifying removal). EPA does take in to account current conditions, including changes in site conditions due to all removal and remedial activities, when it considers what CERCLA action, if any,
is warranted at a site on the NPL.

Regardless, the HRS evaluation of the contamination in the watershed at the Site was based on conditions at the time of the most recent site investigations (e.g., see References 14 and 15 of the HRS documentation record at proposal).

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.



### 3.9 Non-Scoring Factual Errors

Comment : GE commented that it had pointed out certain factual errors that EPA had made in the HRS documentation record and while many of these errors do not directly implicate the HRS score, they do “evidence the Agency’s carelessness in its evaluation of the Site as well as overstatements and unsupported assertions as to the allege d dangers posed by the Site.” GE then listed the “most egregious factual errors” within the following topics:

• PCB contamination of the underlying aquifer

• Entity that did previous remedial actions

• Description of the NYSDEC’s oversight of activities at the Site

• Description of fishery status of Nass au Lake and parts of the Valatie Kill

• Presence of PCB as a DNAPL and the extent of PCB contamination in ground water

• Evaluation of the threat posed by migration via the Southern Drainage

• Releases to Valley Stream and Smith Pond.

Response : EPA has addressed all the statements GE cons iders egregious errors in other parts of this support document, and has revised the HRS documentati on record at promulgation accordingly. None of these alleged “errors” result in a change in the HRS score for the Site or in the listing decision. Specific topics are addressed in the following sections of this support document:

• 3.4 Other Possible Pathway Threats (addresses PCB contamination of the underlying aquifer)

29Dewey Loeffel Landfill NPL Listing Support Document March 2011

• 3.8 Liability/Responsibility for Cleanup (addresses the entity that conducted previous remedial actions and the NYSDEC’s oversight of activities at the Site)

• 3.12.2.1 Presence of a Closed Fishery (addresses desc ription of fishery status of Nassau Lake and parts of the Valatie Kill)

• 3.4 Other Possible Pathway Threats (addresses th e presence of PCB as a DNAPL and the extent of PCB contamination in ground water)

• 3.3 Danger to Human Health or th e Environment (addresses the evaluation of the threat posed by migration via the Southern Drainage and releases to Valley Stream and Smith Pond)

EPA has also made corrections in the Site Su mmary section of the HRS documentation record at promulgation to clarify background information re garding parties who performed remedial/removal
activities at the Site. These corrections result in no change to the HRS score and no change in the decision to place the Site on the NPL.



### 3.10 Observed Release to Nassau Lake

Comment : GE questioned the establishment of an observe d release to Nassau Lake. It challenged the usability of the analytical result u sed to establish that observed release and argued that one release sample
was not sufficient to establish the observed release to Nassau Lake. GE concluded that EPA should have resampled Nassau Lake sediments. It also claime d that the background samples were not similar enough to the release sample.

Response : The observed release to Nassau Lake was established consistent with the HRS, and the Likelihood of Release category value was correctly assigned a 550 because:

• Qualified analytical data can be used to estab lish observed releases as long as the analytical result is sufficiently accurate to document that the si gnificant increase criteria used to establish an
observed release in the HRS have been met.

• EPA took reasonable action to ensure the usability of analytical data. And, upon further inspection, the potential issues associated with the data in question have no impact on the
establishment of an observed release.

• One observed release sample is sufficient to estab lish an observed release to a water body in an
HRS evaluation.

• Because data quality did not impact the observed release and the observed release was established consistent with the HRS, there was no need for resampling.

• The background samples are sufficiently similar to the Nassau Lake observed release sample to establish a background level at the site for a ma nmade substance (PCBs) that is not generally ubiquitous in the environment, and there is no in dication that the slight physical differences that do exist between the background and release samples would affect the validity of the
identification of a release to the lake.

The following subsections of this support documen t address specific assertions regarding the evaluation
of observed releases to Nassau Lake:

• 3.10.1 Observed Release to Nassau Lake: Data Quality Issues

• 3.10.2 Observed Release to Nassau Lake: Number of Releases

• 3.10.3 Resampling

• 3.10.4 Observed Release to Nassau Lake: Background Similarity

30Dewey Loeffel Landfill NPL Listing Support Document March 2011

3.10.1 Observed Release to Nassau Lake: Data Quality Issues

Comment : GE raised two issues regarding the adequacy of the analytical data used to establish an observed release to Nassau Lake: the use of qualifie d data and adjustment of “J”-qualified data.

Response : The documentation of the quality of the data in the HRS documentation record at proposal was sufficient to establish an observed release to Nassau Lake. GE’s specific comments are addressed in the following subsections:

• 3.10.1.1 Use of Qualified Data

• 3.10.1.2 Adjustment of J-Qualified Data

3.10.1.1 Use of Qualified Data

Comment : GE asserted that “EPA’s reliance on one highly unreliable sample to establish an ‘observed
release’ in Nassau Lake violates the HRS as well as the Agency’s own policies on the use of qualified data in HRS scoring.” GE argued that neither th e HRS itself nor the HRS Guidance Manual authorizes the use of qualified data in HRS scoring, but that th e EPA factsheet on Using Qualified Data to Document an Observed Release or Observed Contamination (EPA Ref 26) (“Qualified Data Guidance”) sets forth guidelines for the use of qualified data in “certain limited circumstances.” GE asserted that:

This Qualified Data Guidance cannot, howeve r, trump the HRS itself and allow use of qualified data where the HRS does not. As su ch, EPA’s use of the J-qualified data for SED34A [the sediment sample used to estab lish an observed release in Nassau Lake]
violated the HRS.

Response : Qualified analytical data can be used to establish observed releases as long as the analytical result is sufficiently accurate to document that the significant increase criteria used to establish an
observed release in the HRS have been met. The HR S does not prohibit the use of qualified analytical data. In addition, as discussed below, court decisions support the use of qualified analytical data when rationale has been provided for why the data are of sufficient quality to document that the HRS requirements have been met. Detailed below is a generic explanation of the use of qualified data, followed by specific application to data used in scoring this site.

Qualified data are results that may suffer from limitati ons that can be the consequence of problems during the analysis or just limitations in the analytical pr ocedure. For analytical results, particularly those developed within the EPA Contract Laboratory Program (CLP), various analytical data qualifiers and codes (collectively termed “qualifiers”) may be attach ed to certain data by the laboratory conducting the analysis. Data qualifiers also may be added, modifi ed, or changed during data validation. The qualifiers pertain to QA and QC variations which result in uncertain confidence concerning the identity of the substance being analyzed and/or its concentration. Data qualifiers may indicate that a particular data quality issue implying bias is associated with a result (e .g., a “J” applied for a QC sample failure), or may be only procedural in nature (e.g., a “C” applied to indicate an Aroclor result was confirmed by GC/MS, or a “J” applied to indicate that a result is between th e detection and quantitation limits). In this case, as further described in this support document in section 3.10.1.2, Adjustment of J-Qualified Data, the “J” qualifier was applied to the DLL-SED34A Aroclor 1260 result to indicate possible low bias due to moisture levels in the sample.

31Dewey Loeffel Landfill NPL Listing Support Document March 2011

HRS Analytical Data Requirements for Establishing an Observed Release As applicable to this site, according to HRS Table 2-3, when the release sample concentration is above the sample quantitation limit (SQL), to establish an observed release by chemical analysis, the following
criteria must be met:

• If the background concentration is not detected (or is less than the detection limit), an observed release is established when the sample measurement equals or exceeds the sample quantitation limit.

• If the background concentration equals or ex ceeds the detection limit, an observed release is established when the sampl e measurement is 3 times or more above the background
concentration limit.

The terms “sample quantitation limit” and “detection limit” are defined in HRS Section 1.1, Definitions

. The HRS defines the SQL as the:

[q]uantity of a substance that can be reasonabl y quantified given the limits of detection for the methods of analysis and sample ch aracteristics that may affect quantitation (for example, dilution, concentration).

The HRS in Section 1.1 defines the detection limit (DL) as the:

[l]owest amount [of a substance] that ca n be distinguished from the normal random “noise” of an analytical instrument or me thod. For HRS purposes, the detection limit used is the method detection limit (MDL) or, for real time field instruments, the detection
limit of the instrument as used in the field.

The data quality objective for establishing an observed re lease therefore is that the concentration of a contaminant must be sufficiently accurate to ensure that one of the two above criteria is met depending on whether the background sample concentration is less than or greater than/equal to the detection limit. As explained below, contrary to GE’s comment, the HRS contains no prohibition against using qualified
data.

Court Decision Regarding Data Quality Requirements The U.S. Court of Appeals for the D.C. Circuit has specifically ruled on th e use of analytical data in the scoring of a site using the HRS when there were possi ble weaknesses in the laboratory analysis. In the
case of Board of Regents of the University of Washington v. EPA , 86 F.3d 1214 (DC Cir. 1996), the Court, in response to the petitioner's challenge rega rding the quality of the data being fed into the complex HRS model—specifically, when there were issues dealing with the analysis—stated that “EPA does not face a standard of absolute perfection. . . . Rather, it is statutorily required to ‘assure to the
maximum extent feasible ,’ that it ‘accurately assesses the relative de gree of risk,’” [emphasis in original] and that “[i]t would hardly make sense for the cour ts to respond to the resulting evidence by treating a lab’s findings as fatally defective whenever it comes up short in any way.” The Court also said that “[i]f there are ‘minor contractual deficiencies,’ the appr opriate response is to review the deficiencies on a ‘case–by-case’ basis to determine their im pact on the ‘usability of the data.’”

Also in this decision, the Court repeated a stat ement in an earlier NPL HRS case (Eagle–Picher Indus., Inc. v. EPA, 759 F.2d. 905, 921, D.C. Cir. 1985) in explanation of when EPA has met its obligations as: “The EPA has thus ‘examined [the] re levant data and . . . articulated a rational explanation for its action.’” [clarification in original]

32Dewey Loeffel Landfill NPL Listing Support Document March 2011

Therefore, analytical data used in HRS scoring need not be from absolutely perfect analyses as long as a reasoned explanation can be provided supporting the use of the data for the specific intended purpose.

CLP Use of “J” Qualifier The samples for the Dewey Loeffel Landfill site were analyzed under the EPA C LP. This program was “developed for CERCLA waste site samples to fill the need for legally defensible analytical results supported by a high level of quality assurance and documen tation” (HRS Section 1.1). A key part of the CLP program is to document the quality of the analytical results through the analysis of quality control samples commensurate with the analysis for fi eld samples and by tracking the capabilities of the analytical procedures to provide accurate results when analyzing samples with variable physical properties. When a possible limitation is found in the analysis but the analysis is considered “in control,” a “J” qualifier is assigned to the analytical result. (If th e limitation is sufficient to indicate the analysis was out of control and the results are unusable, an “R” qualifier is assigned.) The “J” qualifier reflects that the result is considered to be qualitatively accura te—the substance is present, but there is a possibility that the result may be an estimated quantity. The relevant specific qualified data at this site is discussed
below.

Consideration of Possible Bias in Establishing an Observed Release EPA has an established protocol for demonstrating that in some cases “J” qualified data is of sufficient quality to use in establishing an observed release by chemical analysis in an HRS evaluation. This procedure considers why the “J” was assigned in terms of the direction of the possible bias. For example, if the result is possibly higher than the true value, the qualified result is considered “biased high”. Four directions of bias are evaluated: biased high, bi ased low, unknown bias, and no bias. Unknown bias is assigned when the quality control probl em indicates a possible problem in the analysis but is not specific enough to indicate a direction. No bias is assigned wh en the qualifier is assigned to identify that some issue was noted but the quantitation of the con centration was not impacted by the issue.

By knowing whether there is a possible bias, the direction and estimated upper or lower bound of the possible bias, and whether a sample is being used to establish a background or release concentration, it
can be shown whether the results meet the observe d release criteria as identified in HRS Table 2.3 (and cited above). “J” qualified results can be used as is in the following situations:

• For a “J” qualified background sample:

o If the background sample concentration is a bove the MDL and the result is biased high but the release sample is 3 times higher, the bac kground sample result as is can be used because
even if the true value were lower than th e measured value, the “three times background
concentration” criteria for an observed release would still be met.

o If the background sample concentration is not detected and the result is biased high but the release is higher than the SQL, the background sample result as is can be used because even
if the true value were lower than the measured value, the “greater than the SQL” criteria for
an observed release would still be met.

• For a “J” qualified release sample:

o If the release sample result is biased low but still meets the observed release criteria, the result may be used as is because even if the true value were higher than the measured value,
the observed release criteria would still be met.

In other situations, it is necessary to consider what the upper or lower bound of the true value could be if the measured value is possibly biased. This estimated bound is referred to as the “adjusted value.” The
observed release criteria are met based on the adjusted value in the following situations:

33Dewey Loeffel Landfill NPL Listing Support Document March 2011

• If a “J” qualified background sample result is equal to or above the MDL and the result is possibly biased low or the bias direction is unknown, an adjusted background sample concentration is generated by multiplying the bac kground result by an adjustment factor designed to estimate the upper bound. If the release sample concentration remains at least three times higher than this estimated upper bound, then th e observed release criteria are considered met.

• If a “J” qualified release sample result is possibly biased high or the bias is unknown, an adjusted release concentration is generate d by dividing the release result by an adjustment factor designed to estimate the lower bound. If the estimated lower bound is greater than the SQL and still at least three times the background concentration (or greater than the SQL if the background concentration was not detected), then the ob served release criteria are considered met.

• If the background is possibly biased low and the release is possibly biased high or the direction of bias for both is unknown, an estimated upper bound background concentration and lower bound release concentration are generated; these adju sted values are compared to verify that the
observed release criteria are met.

Effectively, a background concentration will only be adjusted upward and/or a release concentration adjusted downward to compensate for potential bias. Also, these estimated bounds are generated only for the purpose of ensuring that observed release criteria are still met when potential bias may affect the identification of an observed release; this adjusted value is not meant to replace the original result produced by the laboratory.

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.

3.10.1.2 Adjustment of “J”-Qualified Data

Comment : GE questioned the use of a sediment sample to establish an observed release in Nassau Lake (sample DLL-SED34A). GE considered the sample to be “highly questionable,” having been qualified as estimated (“J”) by EPA because of its high moisture conten t. GE pointed out that the analytical result for this sample was 1.7 ppm for the Aroclor mi x 1260, and was assigned the “J” qualifier because the moisture content of the sediment sample was between 70 and 90%. GE asserted that EPA reduced this to an estimate of 0.17 ppm because of the “J” qualifier. GE argued that EPA still considered this a high enough value to use to identify an observed release in the entire northern portion of the Lake because the background sample PCB concentration was below the sample quantitation limit.

Response : The use of sediment sample DLL-SED34A to establish an observed release in the northern portion of Nassau Lake is consistent with the HRS; th at the analytical result for this sample was assigned a qualifier indicating that a minor issue arose during th e analysis of this sample does not cause it to be unusable for establishing an observed release to the lake. As discussed in section 3.10.1.1 (Use of Qualified Data) of this support document, under some circumstances EPA’s use of qualified data in the establishment of an observed release can be justified; per the Board of Regents of the University of Washington v. EPA case, analytical data used in HRS scoring need not be from absolutely perfect analyses as long as it is reasonable for EPA to use the data for the specific intended purpose.

34Dewey Loeffel Landfill NPL Listing Support Document March 2011

The “J” 4 qualifier applied to the Aroclor-1260 result (to i ndicate possible bias due to high moisture levels in the sample) was accounted for in the identification of the observed releases; as discussed below, in the HRS documentation record at proposal an estimated lower bound was generated for this result to address the assumed unknown bias. However, as explained below, upon further inspection, it has been determined that the bias associated with this qualif ier is a “low bias” not unknown bias as assumed at proposal; therefore, there is no need to verify that the significant increase criteria used to establish an observed release would have been met if the analytical value might have been lower than measured.

According to HRS Table 2-3, when the release sample concentrati on is above the sample quantitation limit (SQL), to establish an observed release by chemi cal analysis, the following criteria must be met:

• If the background concentration is not detected (or is less than the detection limit), an observed release is established when the sample measurement equals or exceeds the sample quantitation limit.

• If the background concentration equals or ex ceeds the detection limit, an observed release is established when the sampl e measurement is 3 times or more above the background
concentration limit.

As discussed in this support document in secti on 3.10.1.1, Use of Qualified Data, under some circumstances EPA’s use of qualified data in the estab lishment of an observed release can be justified.

As discussed on pages 18-23 of the HRS documentation record at proposal, in the particular case of the Aroclor-1260 result for DLL-SED34A, Table 2 on pages 21-24 of the HRS documentation record at proposal lists the background sample and release sample results for Arochlor-1260. Aroclor-1260 was not detected in the background samples (DLL- SED08A, DLL-SED18A, and DLL-SED27A) used to establish a background level for the observed release sample in Nassau Lake (DLL-SED34A); therefore, the highest background SQL (47 μg/kg) was used to set the concentration an observed release sample must meet or exceed to satisfy the significant increase criteria.

As described on page 44 of Reference 17 of the HR S documentation record at proposal, the result for sediment sample DLL-SED34A (1,700 μg/kg) was “J” qualified because the sample moisture content was greater than 70% and less than 90%. As shown in Table 1 of the HRS documentation record at proposal, this “J” qualified result was assumed to have an unknow n bias and therefore its true value could have either been higher or lower than that reported. Since this sample is used as a release sample, this assumption, as explained above in section 3.10.1.1, Use of Qualified Data, meant that the estimated lower bound was determined and an adjusted result of 170 μg/ kg generated. This adjusted result is well over the background level of 47 μg/kg required to establish an observed release according to the HRS; thus the
observed release established in Nassau Lake in the doc umentation record at pro posal is appropriate and justified.

However, upon further consideration, the assumption of unknown bias in this case is a highly cautious assumption. Organic analysis results (which includ e those for Aroclors) qualified only for the moisture content being between 70% and 90% are typically considered biased low. This is because the methodology used to extract organic compounds is affect ed by high sample moisture content in that all organics might not be extracted and thus not included in the results. Therefore, the result for sample

4 A “J” qualifier applied to a sample result indicates that the analyte was positively identified and the associated numerical value is the approximate concentration of the analyt e in the sample (due either to the quality of the data generated because certain quality control criteria were not met, or the concentration of the analyte was below the quantitation limit).

35Dewey Loeffel Landfill NPL Listing Support Document March 2011

DLL-SED34A should actually only be considered biased low (the true value, had there been no moisturerelated interference in the extraction, would only be greater than 1,700 μg/kg); there is no reason to adjust it lower. If this result were to be adjusted to a higher value, it would only increase the amount it was above the background level. This information h as been added to the HRS documentation record at promulgation.

In summary, EPA made more than reasonable efforts to consider the possible bias of qualified data in establishing observed releases by chemical analysis at this site, and in fact may have overcompensated for the “J” qualification of the DLL-SED34A result. Use of this result to establish an observed release in Nassau Lake is thus appropriate.

Regarding the GE implication that EPA used this sa mple to demonstrate that the entire northern portion
of Nassau Lake meets observed release criteria: this is not the case. As explained in section 3.12.1 (Zone of Contamination) of this support document, while th is sample was used per HRS instructions (see HRS Section 4.1.1.2) to delineate the surface water zone of contamination, it was not used to claim the entire northern part of the lake met observed release criteria. It was used to establish the furthest downstream sample that met observed release criteria, and it was used to establish a zone of contamination between that sample and a probable point of entry (PPE) for the Site.

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.

3.10.2 Observed Release to Nassau Lake: Number of Releases

Comment : GE asserted that EPA failed to establish an observed release to Nassau Lake because EPA relied on “just one, highly unreliable sediment sample out of 16 identified sample locations in Nassau Lake, and ignores that there are no ‘observed releases’ at the 15 other identified locations sampled in the Lake...” GE argued that “[o]ne highly questionable result well below 1 ppm [after accounting for possible sample bias], in connection with sediment sampling at 16 locations in the Lake, is hardly creditable evidence of an ‘observed release,’ much less that the release poses any dangers to human health
or the environment.”

Response : As shown in this support document in section 3.10 and its subsections, the observed release to Nassau Lake was established in the documentation record at proposal consistent with HRS criteria. This observed release was established based on the significant increase in concentration of PCBs in release sample DLL-SED34A as compared to a background level of 47 μg/kg (established by background samples DLL-SED08A, DLL-SED18A, and DLL-SED27A). That other samples were not identified as establishing multiple observed releases to the lake do es not negate this identification (comments on the extent of contamination in other parts of the Lake and on the risk posed by the release are addressed in this support document in sections 3.3, Danger to Human Health or the Envi ronment, and 3.10.1.2, Adjustment of “J”-Qualified Data).

HRS Section 4.1.2.1.1, Observed Release , states:

Establish an observed release to surface water for a watershed by demonstrating that the
site has released a hazardous substance to the surface water in the watershed . . .

• Chemical analysis: –Analysis of surface water, benthic, or sediment samples indicates that the concentration of hazardous substance(s) has increased significantly above the background concentration for the site for that type of sample . . .

36Dewey Loeffel Landfill NPL Listing Support Document March 2011

–Some portion of the significant increase must be attributable to the site to establish
the observed release . . .

If an observed release can be established for a watershed, assign an observed release
factor value of 550 to that watershed.

There is no requirement for more than one sample to meet observed release criteria to establish an observed release in a water body.

That the significant increase came at least in part fro m the Site was not directly challenged by GE (while in its assertion that PCBs are ubiquitous in the ar ea as described in this support document in section 3.10.4, Observed Release to Nassau Lake: Background Similarity, GE challenged the background level but did not challenge the attribution of the release to the Landfill).

As discussed on pages 18-23 of the HRS documentation record at proposal, in the particular case of the Aroclor-1260 result for sample DLL-SED34A, Table 2 on pages 21-24 of the HRS documentation record at proposal lists the background sample and release sample results for Arochlor-1260. Aroclor-1260 was not detected in the background samples (DLL- SED08A, DLL-SED18A, and DLL-SED27A) used to establish a background level; therefore, the highest background SQL (47 μg/kg) was used to set the concentration an observed release sample must meet or exceed to satisfy the significant increase criteria.

Table 2 on page 23 of the HRS documentation record at proposal lists an adjusted result of 170 μg/kg Aroclor-1260 for sample DLL-SED34A, which is great er than the background level of 47 μg/kg; an observed release is thus appropriately established in Nassau Lake according to the HRS (and a likelihood of release factor value of 550 was correctly assigned).

GE is incorrect in its assertion that EPA “ignores that there are no ‘observed releases’ at the 15 other identified locations sampled in the Lake.” Other Lake samples have concentrations that also meet the
observed release criteria described in HRS Section 2.3 and HRS Table 2-3 (as presented in this support document in section 3.10.1.2 , Adjustment of J-Qua lified Data): they have a significant increase in concentration, and at least part of the signif icant increase is due to a release from the Site.

Seven other locations sampled in Nassau Lake exhibited Aroclor-1260 c oncentrations significantly above background. Table 1 below lists these sample results (see Figure 1 of this support document for sample locations).

37Dewey Loeffel Landfill NPL Listing Support Document March 2011

Table 1: Aroclor Detections in Nassau Lake Samples Other than DLL-SED34A

Field Sample No. EPA Sample
No. Aroclor-1260
Concentration ( μ g/kg) SQL ( μ g/kg) Reference in HRS
Documentation Record at Proposal

DLL-SED35A B5Q65 850J 220 Ref. 17 pp. 57, 69-72, Ref. 37, pp. 25-26

DLL-SED36A B5Q66 1,100J 170 Ref. 17 pp. 58, 69-72, Ref. 37, pp. 25-26

DLL-SED37A B5Q67 780J 150 Ref. 17 pp. 59, 69-72, Ref. 37, pp. 25-26

DLL-SED38A B5Q68 1,200J 210 Ref. 17 pp. 60, 69-72, Ref. 37, pp. 25-26

DLL-SED39A B5Q69 810J 170 Ref. 17 pp. 61, 69-72, Ref. 37, pp. 25-26

DLL-SED40A B5Q70 1,000J 170 Ref. 17 pp. 62, 69-72, Ref. 37, pp. 25-26
DLL-SED41A B5Q71 960J 200 Ref. 17 pp. 63, 69-72, Ref. 37, pp. 25-26

μ g/kg – micrograms per kilogram. Note: 1 ug/kg equals 1 pa rt per billion (ppb). 1 part per million (ppm) equals 1000 ppb. J – result is estimated, biased low, due to percent moisture between 70-90% SQL – sample quantitation limit

The “J” qualifier was assigned for these analytical results because the percent moisture in the samples was between 70% and 90% (see the validation report, page 72, supplied as Reference 17 of the HRS documentation record at proposal). As explained in section 3.10.1.2 (Adjustment of “J”-Qualified Data) of this support document, the “J” qualifier in these cases means that the reported concentration may be biased low (i.e., the true value may be higher than th e reported value). Secti on 3.10.4 (Observed Release to Nassau Lake: Background Similarity) of this support document explains that the background level of

47 μ g/kg can be correctly used for comparison with observed release concentrations in Lyons Lake. Since the samples shown in Table 1 of this support document have PCB concentrations both greater than the SQL and greater than the background level, these samples could also have been identified as establishing observed releases.

Regarding GE’s description of the Aroclor-1260 conc entration in sample DLL-SED34A as “well below 1ppm” and other language throughout GE’s comments implying that this result is small, the concentration meets HRS observed release criteria and is significantl y greater than background levels in the area. Furthermore, there is substantial historical evid ence indicating PCB contamination in Nassau Lake, and that many of those concentrations have exceeded 1 ppm. Page 20 of the May 13, 1998 feasibility study (FS) report performed on behalf of GE (included as Reference 8 of the HRS documentation record at proposal) stated that PCB contamination in Nassau Lake sediments began in the 1950s, increased until the late 1960s or early 1970s, declined until the mid-1980s when it increased again, and has declined since then. It also noted that investigative data from more than 50 sampling locations show that in the top 10 inches of sediment, PCB levels ranged from 0.28 to 9.6 mg/kg, with a geometric mean of 1.9 mg/kg (ppm). Also, pages 1-4 of the October 19, 2004 re port submitted to NYSDEC on behalf of GE (included as Reference 11 of the HRS documentation record at proposal) stated that suspended sediment samples
collected from Valatie Kill at the inlet to Nassau Lake exhibited PCB c oncentrations of 1.7 and 1.9 mg/kg (ppm) during a high flow event sampling.

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.

38

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# See MapDewey Loeffel Landfill NPL Listing Support Document March 2011

3.10.3 Resampling

Comment : GE stated that “even assuming the validity of the Qualified Data Guidance” EPA’s use of the results violated that guidance. GE quoted the guida nce text as support for its argument that the lakes should have been resampled:

“[S]ome ‘J’ qualified data can be used in establishing an observed release if the uncertainty in the reported values is documen ted. Qualified data should always be carefully examined by the Regions to determ ine the reasons for qualification before use in HRS evaluation. Resampling and/or reanal ysis may be warranted if qualified data only marginally document an observed release. Wh enever possible, qualified data should be used in conjunction with non-qualified data . . . .” Qualified Data Guidance at 4 [emphasis added by GE].

GE argued that these guidelines must be read in the c ontext of the D.C Circuit’s decision, which says that “[EPA] . . . is statutorily required to ‘assure, to the maximum extent feasible ,’ that it ‘accurately assesses the relative degree of risk’ posed by sites.” ( Board of Regents of the University of Wash. V. EPA , supra 86 F.3d at 1220 (emphasis in original) (quoting 42 U.S.C. paragraph 9605(e)(1)).

GE claimed that “[b]y basing its entire case that there is an ‘observed release’ to Nassau Lake on only one highly qualified sampling result that is marginally above background, EPA has violated the Qualified Data Guidance and the D.C. Circuit’s ruling.” GE claimed that at minimum EPA should have resampled sediments in the area of the Lake, which was clearly feasible, and by not doing so EPA had skipped a critical step in the HRS process, namely to “collect a dditional information, if necessary,” and cited to the HRS guidance manual at page 26. GE asserted that:

In this case, additional sampling was plai nly necessary under that guidance to ‘replace low-quality chemical analysis data that support observed releases’. ( id .) because of the unreliable nature of the one result (for SED34A) that might support such a release and because of the absence of any ‘non-qualified da ta’ to buttress that result, given that all other Nassau Lake samples cited by EPA did not show any ‘observed releases.’

GE concluded that “EPA’s violation of the HRS, and its own HRS Guidance Manual and Qualified Data Guidance, renders arbitrary and capricious, an abuse of discretion, as well as a violation of law, any conclusion by EPA that there are ‘observed releases’ in Nassau Lake.”

Response : Since the data were of sufficient documente d quality to establish an observed release to the Lake, resampling of the Lake was neither necessary no r required. The qualified data were examined, the
data were verified to be of documented quality sufficient for the purposes of establishing an observed release, and the observed release to Nassau Lake wa s established in the documentation record at proposal
consistent with HRS criteria based on data of documented acceptable quality. See section 3.10.1.2, Adjustment of “J”-Qualified Data, of this support document. Also, as explained in section 3.10.2 (Observed Release to Nassau Lake: Number of Rele ases) of this support document, the observed release
to Nassau Lake was established in the HRS documen tation record at proposal consistent with HRS criteria. There was therefore no need for additional sampling.

As additionally discussed in the section 3.10.1.2 of th is support document, the actual direction of bias for the qualified release sample DLL-SED34A result is low bias; therefore, the true contaminant concentration in the sample (had no data issues been present) would only have been greater, strengthening
the evidence for an observed re lease in Nassau Lake.

40Dewey Loeffel Landfill NPL Listing Support Document March 2011

GE’s citation to the Board of Regents case is not persuasive. While the court does state that EPA is required to “assure to the maximum extent feasible that it accurately assesses the relative degree of risk posed by sites,” it also states in the immediately preceding sentence that “EPA does not face a standard of absolute perfection.” See Board of Regents , 86 F.3d at 1220.

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.

3.10.4 Observed Release to Nassau Lake: Background Similarity

Comment : GE commented that EPA did not have any valid background samples to compare against the Nassau Lake sediment release sample. It asserted that the HRS and the HRS Guidance Manual require that lake sediments, to the extent possible, be compar ed to background samples from other lakes, but that EPA had found all its background la ke sediment samples to be unusable. Rather than taking additional samples, EPA arbitrarily used as background, sedim ent samples taken from local streams which had different physical characteristics.

Specifically, GE stated that after finding that bac kground samples from Lyon’s Lake were found to be unusable (“R”-qualified, which means rejected) due to high moisture content, the Agency decided to not resample but to compare the sample to three background sediment samples from small streams, but that the characteristics of these samples differed from the La ke release sample in several significant ways.

GE asserted that:

• The background samples were ta ken from stream sediments

• The Lake sample had nearly 5 times higher total organic carbon levels (53,300 mg/kg) than the background samples ( 2,000 to 11,600 mg/kg)

• The Lake sample had 90.4% fine grain materials, more than 7 times that in the stream samples (5.7 to 12.9%)

• The Lake sample had a moisture content of 78%, while the stream samples had less than half that amount (17 to 30%)

• The Lake sample sand content was 9.6% sand compared to the background samples range of 78.3% to 87% sand (GE noted that the HRS documen tation record erroneously identified that the percent sand in the Lake sample was 96%).

GE asserted that EPA’s rationale for using the stream samples as background was inconsistent. It stated:

The Agency provides two inconsistent explan ations for its comparison of SED34A with stream sediment background samples that had markedly different physical characteristics than sample SED34A. First, EPA states that SED34A was compared to samples “from the only usable upgradient background locati ons, which came from stream samples . . . (i.e., there were no lakes or springs immediately upgradient of the release sample locations).” HRS Documentation Record at 18. Then, only a few sentences later, EPAnotes that it collected background lake samples DLL-SED43A, DLL-SED44A, DLLSED45A, and DLL-SED46A from Lyons Lake in August 2009, but the Lyons Lake samples were found to be unusable becau se moisture content exceeded 90%. If Lyons Lake is a suitable background location, EPA’s fi rst statement that “there were no lakes or springs immediately upgradient of the rel ease sample locations” from which to take background samples is plainly inaccurate.

41Dewey Loeffel Landfill NPL Listing Support Document March 2011

GE claimed that EPA should have either re-sampled Lyon’s Lake or found another suitable background lake, and since EPA did not, EPA has no technical justification for concluding the PCB concentrations in the Lake sample exceeded background levels, and h as not established an observed release in the Lake.

Response : The background samples used in establishing an observed release to Nassau Lake are sufficiently similar to the release samples for th e purposes of identifying an observed release within Nassau Lake. The purpose of background samples is to establish a background level in the medium of
concern for the site to determine whether or not a release from the site has occurred. The HRS requires only that the samples be the same type of samples (s urface water, sediment, soil, etc.). Also, background samples must be sufficiently similar to release samp les to ensure the increase in contamination between the background level and the release sample is due to a release and not due to differences in the samples or their analysis.

As discussed below, the background and release sa mples are the same type—sediments; despite some physical differences between background samples and the Nassau Lake observed release sample, the background samples share several similarities with the release sample. Furthermore, as explained below, for the physical parameters in wh ich these samples do differ—total organic carbon and percent silt, clay,
and colloids—there is no direct correlation between these parameters and the Aroclor-1260 concentration in samples at the Site; hence, ther e is no evidence that the differences in these parameters cannot be the
cause of the increase in contaminant levels f ound between the background level and the release concentration. Finally, since PCBs are manmade ch emicals and are not ubiquitous in the environment, sample similarity is less critical in establishing a significant increase over background levels than in cases involving naturally occurring hazardous substances, sin ce any finding of manmade substances must have
resulted from a release.

The HRS considers sample similarity in Section 4.1.2.1.1, Observed release . It states in part:

Establish an observed release to surface water for a watershed by demonstrating that the
site has released a hazardous substance to the surface water in the watershed. . . .

• Chemical analysis:

o Analysis of surface water, benthic, or sediment samples indicates that the
concentration of hazardous substan ce(s) has increased significantly above the background concentration for the site for that type of sample (see section 2.3).

- Limit comparisons to similar types of samples and background concentrations – fo r example, compare surface water samples to surface wat er background concentrations [emphasis added].

The HRS addresses background only in the context of id entifying an observed release of substances to the environment by chemical analysis. HRS Section 2.3, Likelihood of release , states:

The minimum standard to establish an observed release by chemical analysis is analytical
evidence of a hazardous substance in the medi a significantly above the background level.

The similarity in the physical properties of backgr ound and release samples is considered in establishing an observed release by chemical analysis to ensure that the increase in contaminant concentrations is due to a release, and not just due to a difference in the physical makeup of the samples.

42Dewey Loeffel Landfill NPL Listing Support Document March 2011

Page 18 of the HRS documentation record at proposal stated:

[a]n observed release by chemical analysis is documented along the surface water migration pathway downstream of the Dewe y Loeffel Landfill facility, between sample
location DLL-SED12 in the former Mead Ro ad Pond and sample location DLL-SED34A in Nassau Lake, approximately 3.4 miles downstream [Figure 2].

In June and August 2009, EPA conducted sediment sampling along the surface water migration pathway downstream of the fac ility, including the former Mead Road Pond, Tributary T11A, Valatie Kill, Valley Stream , Smith Pond, and Nassau Lake . . . The validated analytical results indicated the c ontinuing presence of PCBs at concentrations significantly above background in sediment samples from the former Mead Road Pond, Tributary T11A, Valatie Kill, and Nassau La ke . . . The June and August 2009 sediment data document the observed release by chemical analysis to the surface water pathway. The background sample locations were c hosen because they are representative of upgradient locations unaffected by site contam ination [Ref. 14, pp. 4-6, 9; 15, pp. 5-8, 11].

The HRS documentation record at proposal, pages 18-19, then stated:

Background samples were collected upstream from influence by the source [Figure 2]. The release sample data from three different water body types (stream, lake, spring) were compared to samples from the only u sable upgradient background locations, which came from stream samples [Tables 1 and 2] (i.e., there were no lakes or springs immediately upgradient of the release sample locations). The background and release samples were handled the same procedura lly and were similar physically, as follows:

• Sampling Methods: The background and release sediment samples were all collected by EPA, using Standard Operating Procedures (SOP), during the June and August 2009 sampling events [Ref. 14, pp. 2-6; 15, pp. 2-8].

• Analytical Procedures: The background and release samples were all analyzed for TCL Aroclors through the Contract Laboratory Program (CLP) [Ref. 16, pp. 1-43; 17, pp. 1-84]. The samples were also analyzed for grain-size distribution according to Method ASTM D422-63 and for TOC according to Method CORP ENG 81M/SW9060M by Accutest Laboratories of Dayton, New Jersey [Ref. 18 through 22].

• Data Validation: The PCB analytical da ta were reviewed independently by EPA according to “SOP HW-37 (Revision 1), USEPA Region II Data Validation
SOP for Statement of Work SOM01.2” da ted August 2007 [Ref. 16, pp. 2-9; 17, pp. 8-11, 41-44, 69-72, 81-84]. The data reviewers found the results to be valid and acceptable with the following exception:

o The non-detect results for background samples DLL-SED43A, DLLSED44A, DLL-SED45A, and DLL-SED46A, collected in August 2009, were found to be unusable because pe rcent moisture content exceeded 90% [Ref. 15, pp. 7-8; 17, pp. 33-35, 41, 44, 73, 81, 84]. [See Figure 1: Site Layout and Sample Locations of this support document for sample locations.]

• Water Body Type: Background and rel ease samples presented in Tables 1 and 2were all collected from small streams, with the exception of sample DLLSED34A, which was collected from Na ssau Lake in August 2009. EPA

43Dewey Loeffel Landfill NPL Listing Support Document March 2011

collected background lake samp les DLL-SED43A, DLL-SED44A, DLLSED45A, and DLL-SED46A from Lyons Lake [see Figure 2] in August 2009, and Aroclors were not detected. However, the non-detect results for the Lyons Lake samples were found to be unusab le because percent moisture content exceeded 90%. The percent moisture values ranged from 91% to 93%, whereas the percent moisture value for sample DLL-SED34A was 78% [Ref. 14, pp. 4-6, 9; 15, pp. 5-8, 11; 17, pp. 33-35, 41, 44, 73, 81, 84]. Based on these considerations, the results for sample DLL-SED34A are compared to the highest usable background value for significance above background [Table 2].

• Sampling Depth: Background and release samples were all collected from the 0- to 6-inch interval below top of sediment [Ref. 13, pp. 10-19, 21-47].

• Percent Moisture: The percent moistu re in the background samples ranged from approximately 17% to 62%, while percent moisture in the release samples ranged from approximately 15% to 78% [Ref. 16, pp. 17, 28, 30-32, 38; 17, pp. 3-5, 7, 17, 20-24, 31-32, 44-45, 50, 74].

• Total Organic Carbon: The TOC levels in the background samples ranged from less than 1,300 milligrams per kilogram (mg/kg) to 33,000 mg/kg, while TOC levels in the release samples ranged from less than 1,200 mg/kg to 53,300 mg/kg [Ref. 18, pp. 14, 16-18, 24, 32; 20, p. 7, 14, 16; 21, pp. 6, 9, 12-15; 22, pp. 12-15, 17].

• Grain Size: The amount of fine-grained ma terials (silt, clay, and colloids) in the solid portion of the background samples ranged from 4.9% to 39.7%, with an average of 17.2%. The amount of fine-grained materials in the solid portion of the release samples ranged from 0.74% to 90.4%, with an average of 16.5% [Ref. 18, pp. 14, 16-18, 24, 32; 20, p. 7, 14, 16; 21, pp. 6, 9, 12-15; 22, pp. 12- 15, 17].

Due to the similarities (i.e., same time frames, sampling and analytical methods, and sampling depths; overlapping ranges of percent moisture, TOC, and grain-size) among the background and release samples, the bac kground and release analytical results are considered to be comparable.

The purpose of background samples is to establish a b ackground level for the site—the concentration of a hazardous substance that provides a reference point that can be used to evaluate whether or not a release from the site has occurred. The background level reflects the concentration of the hazardous substance in the medium of concern for the environmental setting on or near a site.

Alhough there are some differences in grain size and total organic carbon (TOC) of the background samples and the Nassau Lake observed release sample 5 , the HRS does not have strict requirements on the degree of physical similarity of observed releas e and background samples—it specifies only that they should be the same “type of sample” and gives th e example of comparing “su rface water samples to surface water background concentrations.” Background and release samples are all surface water sediments; and similar sampling methods, analytical procedures, and sampling depths were used. Additionally, background samples DLL-SED27A and D LL-SED08A were collected directly upstream of Nassau Lake (see Figure 1 of this support document, above). Because of all of these factors, samples DLL-SED18A, DLL-SED27A, and DLL- SED08A were reasonably deem ed appropriate background samples for comparison with Nassau Lake observed release sample DLL-SED34A.

5 The HRS documentation record will be revised at promulgati on to indicate that in the Nassau Lake observed release sample the percent moisture, TOC, and percent silt, cl ay, and colloids levels do not overlap with those of background samples.

44Dewey Loeffel Landfill NPL Listing Support Document March 2011

Additionally, based on a comparison of detected Ar oclor 1260 concentrations in June 2009 and August 2009 samples, and the respective TOC and percent silt, clay, and colloids values for these samples, there is no direct correlation between Aroclor-1260 and TOC or between Aroclor-1260 and percent silt, clay, and colloids in these samples—that is, there is no quantitative link between these parameters (see support document Attachment 3, Aroclor Correlation Study, wh ich shows weak correlation coefficients of 0.231
for Aroclor-1260 vs. TOC and 0.237 fo r Aroclor-1260 vs. percent silt, clay, and colloids). This indicates that the physical differences in background and release samples should not affect the ability of the background samples DLL-SED08A, DLL-SED18A, a nd DLL-SED27A to establish an appropriate background level for observed release sample DLL-SED34A.

Furthermore, as explained in section 3.11.3 (Observe d Release to Valatie Kill: Validity of Background Samples) of this support document, PCBs are ma nmade chemicals and are not ubiquitous in theenvironment. The various local samples in which Aroclors were not detected demonstrate the nonubiquitous nature of PCBs in the area (see samples liste d in Table 2, below, and Figure 1, Site Layout and Sample Locations, of this support document for their location). Therefore, sample similarity is less critical in establishing a significant increase over bac kground levels than in cases involving naturally occurring hazardous substances. That is, because PC Bs are manmade, background samples need only
illustrate that PCBs are not common in the area to support a background level of not-detected above the sample quantitation limit (SQL).

Table 2: Example August 2009 Samples in Which No Aroclors Were Detected

Field Sample No. EPA Sample No. Reference in HRS Documentation Record at Proposal

DLL-SED13A B5Q43 Ref 15, pp. 5-8; 17, p. 6

DLL-SED14A B5Q44 Ref 15, pp. 5-8; 17, p. 46

DLL-SED15A B5Q45 Ref 15, pp. 5-8; 17, p. 47

DLL-SED16A B5Q46 Ref 15, pp. 5-8; 17, p. 48

DLL-SED17A B5Q47 Ref 15, pp. 5-8; 17, p. 49

DLL-SED19A B5Q49 Ref 15, pp. 5-8; 17, p. 25

DLL-SED20A B5Q50 Ref 15, pp. 5-8; 17, p. 26

DLL-SED21A B5Q51 Ref 15, pp. 5-8; 17, p. 27

DLL-SED22A B5Q52 Ref 15, pp. 5-8; 17, p. 28

DLL-SED23A B5Q53 Ref 15, pp. 5-8; 17, p. 51

GE is incorrect in its claim that HRS documenta tion record has contradicted itself in stating:

The release sample data from three different water body types (stream, lake, spring) were compared to samples from the only usable upgradient background locations, which came from stream samples [Tables 1 and 2] (i.e., there were no lakes or springs immediately upgradient of the release sample locations). . . . EPA collected background lake samples DLL-SED43A, D LL-SED44A, DLL-SED45A, and DLLSED46A from Lyons Lake [see Figure 2] in August 2009 . . . [emphasis added]

While Lyons Lake is not “immediately” upgradient of the release sample locations, it is upstream of and drains to Nassau Lake. Lyons Lake first drains into Smith Pond, which then drains into a stream, which drains into the southern end of Nassau Lake ( see Figure 1, Site Layout and Sample Locations). Therefore, the questioned HRS documentation record te xt is not in contradiction with itself.

45Dewey Loeffel Landfill NPL Listing Support Document March 2011

Additionally, the HRS documentation record is correct in stating that the only usable upgradient samples from the same sampling events as the release samples were employed as background samples. EPA made a reasonable attempt to locate nearby lake sedimen t background samples and sampled Lyons Lake; but, as quoted above, the HRS documentation record at prop osal states that these samples “were found to be unusable because percent moisture content exceeded 90%.” This issue was not due to sampling error; it is an inherent limitation in the analytical technique’s ability to extract PCBs fro m sediments when excessive water is present. Even if Lyons Lake were resampled as GE suggested, it is likely that those lake sediment samples would have the same percent moisture issues.

In conclusion, as explained above, suitable data were available to determine an appropriate background level for the Nassau Lake observed release sample; collection of additional samples was therefore not

necessary.

Finally, even if an observed release were not established in Nassau Lake, the observed release established in Tributary T11A and Valatie Kill coupled with th e closed fishery and wetland targets in Valatie Kill would yield the same site score of 50.

Regarding the error in the value reported for % sand in sample DLL-SED34A, this error has been corrected in the HRS documentation record at promulga tion (the correct value is 9.6%), and the reference cited to support this value has also been correct ed in the HRS documentation record at promulgation (Reference 20 to the HRS documentation record at proposal).

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.



### 3.11 Observed Release to Valatie Kill

Comment : GE questioned the establishment of an observed re lease to Valatie Kill. It argued that not all samples from Tributary T11A, Mead Road Pond, and Valatie Kill met observed release criteria. It challenged the usability of analytical data used to establish observed releases by chemical analysis in these areas; GE argued that differences in concentr ation at some sample points over time and certain qualifiers (“C” and “UJ” qualifiers) associated with data call that data into question and necessitate resampling. It also claimed that EPA did not take and analyze sufficient background sediment samples to compare with release samples, highlighting the “UJ” data qualifiers associated with two of the background samples.

Response : Observed releases to Valatie Kill, Tributar y T11A, and Mead Road Pond were established consistent with the HRS, and the Likelihood of Release value was correctly assigned as 550. As discussed in more detail below, GE’s specific commen ts do not show that the identification of observed
releases was in error because:

• There is no HRS requirement that all contaminant levels in all samples in a water body meet observed release criteria to identify an observed release to that water body.

• Variability of concentrations at the same sa mpling point between sampling events does not
invalidate the results used to show that an observed release to the Valatie Kill has occurred.

• Of the data qualifiers pointed to by GE, the “C” qualifier has no negative effects on the accuracy of the analytical results and the “UJ” qualifier has been determined to be incorrectly applied to the data in question; these qualifiers do not affect the data’s usability in establishing an observed
release.

46Dewey Loeffel Landfill NPL Listing Support Document March 2011

• Since the variability of concentrations and data qualifiers does not prevent observed releases from being established, there is no reason for resampling those locations.

• A sufficient number of background samples were used to establish a background level (three background samples for each sampling event). Th e “UJ” qualifiers were incorrectly applied and have no effect on the usability of the samples for establishing background.

The following subsections address these specific asser tions regarding the evaluation of observed releases
to Valatie Kill:

• 3.11.1 Observed Release to Valatie Kill : Continuity of the Observed Release

• 3.11.2 Observed Release to Valatie Kill: Data Quality Issues

• 3.11.3 Observed Release to Valatie Kill: Validity of Background Samples

3.11.1 Observed Release to Valatie Kill: Continuity of the Observed Release

Comment : GE identified that not all samples taken from the Valatie Kill, Mead Road Pond Area, or Tributary T11A established observed releases. It stated that EPA acknowledges that two of its sediment samples, DLL-SED03/03A and DLL-SE04/04A, which GE stated as bracketing approximately 50% of
the Valatie Kill between its confluence with Tributar y T11A and Nassau Lake, did not show any observed
releases.

GE asserted that other sample results showed observed releases in one set of sampling results, but not in another except in qualified analytical results, including the only sample with PCB levels above 1 ppm (the State Cleanup requirement). GE also stated that EPA identified no observed releases in an area GE had remediated (Area 28).

Response : The HRS does not require that all samples from a water body meet observed release criteria to identify an observed release to that water body. The observed releases to the watershed downstream of the point where contamination from the Landfill area w ould enter surface water (Probable Point of Entry 1, PPE1) were established correctly, consistent with the HRS.

HRS Section 4.1.2.1.1, Observed release , contains the directions used to establish an observed release:

Establish an observed release to surface water for a watershed by demonstrating that the
site has released a hazardous substance to the surface water in the watershed. Base this
demonstration on either:

• Direct observation:

....

• Chemical analysis:

o Analysis of surface water, benthic, or sediment samples indicates that the
concentration of hazardous substan ce(s) has increased significantly above the background concentration for the site for that type of sample (see section 2.3).
9

9 For benthic samples, limit comparisons to essentially sessile

organisms.

o Some portion of the significant increase m u st be attributable to the site to establish the observed release, except: when the site itself consists of

47 concentrations – for example, compare surface water samples to surface water background concentrations. Limit co mparisons to similar types of samples and backgroundDewey Loeffel Landfill NPL Listing Support Document March 2011

contaminated sediments with no iden tified source, no separate attribution is required. If an observed release can be established for a watershed, assign an observed release factor value of 550 to that watershed, enter th is value in Table 4-1, and proceed to section

4.1.2.1.3.

As stated above, the HRS does not require that all samples in a watershed meet observed release criteria to assign the factor value of 550; it only requires that at least one sample has met the criteria.

HRS Section 2.3, Likelihood of Release , states, in part:

Establish an observed release either by dir ect observation of the release of a hazardous substance into the media being evaluated (fo r example, surface water) or by chemical analysis of samples appropriate to the pathwa y being evaluated (see sections 3, 4, and 6). The minimum standard to establish an observed release by chemical analysis is analytical evidence of a hazardous substa nce in the media significantly above the background level. Further, some portion of th e release must be attributable to the site.
Use the criteria in table 2–3 as the standard for determining analytical significance.

HRS Table 2-3 states that, if a sample measurement is greater than or equal to the SQL, an observed
release is established:

• If the background concentration is not de tected (or is less than the detection limit), an observed release is established when the sample measurement equals or exceeds the sample quantitation limit.

• If the background concentration equals or exceeds the detection limit, an observed release is established when the sample measurement is 3 times or more above the background concentration.

Page 18 of the HRS documentation record at proposal states that:

[a]n observed release by chemical analysis is documented along the surface water migration pathway downstream of the Dewe y Loeffel Landfill facility, between sample
location DLL-SED12 in the former Mead Road Pond and sample location DLLSED34A in Nassau Lake, approxi mately 3.4 miles downstream.

Tables 1 and 2 on pages 20-23 of the HRS documen tation record at proposal presented background sample concentrations and release sample concentrations meeting the HRS observed release criterion (that the release sample concentrations were above the b ackground level of not-detected). Figure 2 on page 11 of the HRS documentation record at proposal showed the locations of background and release samples. Page 24 of the HRS documentation reco rd at proposal attributed some portion of the significant increase of hazardous substances to the Site by explaining that:

• Hazardous materials were dumped at th e Dewey Loeffel facility (including solvents, waste oils, PCBs, scrap materials, sludges, and solids);

• PCBs were found at the facility in soils and a landfill leachate sample;

• Recent fish tissue data indicate that PC Bs still affect several species in surface waters downstream of the facility;

• PCBs are manmade and do not readily break down and therefore remain in the environment for long periods of time; and

48Dewey Loeffel Landfill NPL Listing Support Document March 2011

• There are no other known PCB sites within 1 mile of the facility, including along the drainage pathways.

Therefore, the HRS sections directing establishing an observed release to surface water have no requirement that all contaminant levels in all samp les in that water body meet observed release criteria
and the observed releases in the watershed downstr eam of PPE1 in the former Mead Road Pond, Tributary T11A, Valatie Kill (and the northern porti on of Nassau Lake) were correctly established,
consistent with the HRS.

Specific effects of these comments on the delineation of the zone of contamination are further discussed in section 3.12.1 (Zone of Contamination) of this support document.

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.

3.11.2 Observed Release to Valatie Kill: Data Quality Issues

Comment : GE challenged the usability of analytical data used to establish observe d releases by chemical analysis in the Mead Road Pond area, Tributary T11A, or the Valatie Kill. It asserted that:

• The difference in PCB concentrations between the June and August sampling events are enough to suggest that there were errors in sampling or analysis.

• One sample result was qualified with a “C” a nd GE did not understand what the “C” qualifier meant; there was another sample from the same lo cation with no qualifier that showed a lower concentration than the “C”-qualified sample.

• Two background samples were qualified with “UJ” because they failed to meet certain quality
assurance criteria.

Given the differing results and the “J”-qualified nature of one set of samples, the Agency should have taken additional samples before dete rmining observed releases exist.

Response : The analytical data used to establish observe d releases to Mead Road Pond, Tributary 11A,
and Valatie Kill were of known a nd documented quality sufficient to show that the criteria for establishing an observed release were met. The fo llowing subsections address GE’s assertions regarding data quality issues:

• 3.11.2.1 Concentration Differences

• 3.11.2.2 “C” Qualifier

• 3.11.2.3 “UJ”-Qualified Background

• 3.11.2.4 Need for Additional Sampling

3.11.2.1 Concentration Differences

Comment : GE asserted that the sample set from the August 2009 sampling of the Valatie Kill “showed very low concentrations of PCBs in the sediment sa mples, the counterpart June 2009 results did not show any unqualified PCB levels in sediments at any of the sampling points,” and the differences in concentrations found in each set “are sufficiently great to suggest that there were errors in sampling or analysis.” GE pointed to Table 2 of the HRS docum entation record at proposal, and listed the following comparison:

49Dewey Loeffel Landfill NPL Listing Support Document March 2011

Compare results for DLL-SED01 (0.27 J ppm), -02 (0.1 J ppm), -05 (0.18 J ppm), -06 (0.18 J ppm), and -07 (0.22 J ppm), with, respectively, DLL-SED01A (0.065 ppm), -02A (0.28 ppm), -05A (0.94 ppm), -06A (1 ppm), and -07A (1.3 ppm).

Response : That concentrations vary between sampling events does not document that observed release
criteria have not been met. Contamination levels in environmental samples can vary between sampling events—especially events two months apart in a d ynamic environment. Differences between these data do not demonstrate that there was any error in the analysis or in the id entification of observed releases.

(Regarding GE’s referral to no “unqualified PCB level s” being used for sediments, as explained in other subsections of section 3.11 (Observed Release to Va latie Kill) of this suppor t document, qualified data were appropriately used in the identification of observed releases.)

HRS Section 2.3, Likelihood of release , states that:

[l]ikelihood of release is a measure of the likelihood that a waste has been or will be released to the environment. The likelihood of release factor category is assigned the maximum value of 550 for a migration path way whenever the criteria for an observed release are met for that pathway. [emphasis added]

HRS Section 4.1.2.1.1, Observed release, states to

[e]stablish an observed release to surface water for a watershed by demonstrating that
the site has released a hazardous substance to the surface water in the watershed. [emphasis added]

Thus, to establish an observed release and generate a likelihood of release category factor value, the HRS requires that a release of hazardous substances has occurred; it requires neither a continual release nor a homogeneous release in the environmental media sampled.

The discussion in this support document in section 3. 11.1, Observed Release to Valatie Kill: Continuity of the Observed Release, and Tables 1 and 2 (pages 20-23) of the HRS documentation record at proposal show observed releases were correctly established in the former Mead Road Pond, Tributary T11A, Valatie Kill, and the northern portion of Nassau La ke. The existence of related samples (whether locationally or temporally proximate) containing diffe rent levels of hazardous substances does not negate the establishment of an observed release. Differing c ontaminant concentrations in other sampling events do not demonstrate the analysis or the identification of samples establishing observed releases were incorrect; nor has GE presented sufficient rati onale to consider the results incorrect.

Also, although the June 2009/August 2009 pairs of samples compared by GE in its comments were collected at common locations, they were not collected as or intended to be replicate samples; there is no reason to expect two nearby samples in a heteroge neous matrix such as sediment that may also be affected by time in a dynamic environment to yield exactly the same results. Furthermore, there are no technical criteria applicable to this site by which to judge the repeatability of results at a particular location over time (and GE has not attempted to define these criteria). There is therefore no basis for the
statement that the differences in concentration “are suffi ciently great to suggest that there were errors in sampling or analysis.”

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.

50Dewey Loeffel Landfill NPL Listing Support Document March 2011

3.11.2.2 “C” Qualifier

Comment : GE pointed out that one sample result in the Mead Road Pond area was above 1 ppm. Sample DLL-SED12A, collected in August 2009, had a concen tration of 3.3 “C” ppm for Aroclor 1260 and 0.2 ppm Aroclor 1232. GE said it was not sure what the “C” means. GE stated:

The “C” qualifier is not discussed in EPA’s Reference Document dealing with using qualified data in connection with HRS scoring. EPA Ref. 26. As best we can tell from the EPA Reference Documents, there appear to have been problems regarding the analysis for Aroclor 1260 in Sample DLL- SED12A (also denominated sample B5Q42). That sample was originally analyzed at a 2X dilution but then reanalyzed at 20X dilution. Evidently, due to these probl ems, no Form 1 was included in the EPA Reference Documents, and instead the presence of PCBs was confirmed merely by gas chromatograph/mass spectrometer (GC/MS).

Response : As discussed below, the analytical data used in the determination of observed releases by chemical analysis at the Dewey Loeffel Landfill site that was qualified “C” were appropriately described in the HRS documentation record at proposal and used in establishing an observed release by chemical analysis; the “C” qualifier does not identify any indication of possible limitation on the accuracy of the analysis of the sampling.

The HRS does not identify requirements or define cond itions for the use of qualified data to establish an observed release. However, the data must be suffi ciently qualitatively accurate to show a significant
increase between the contaminant concentrations in th e background and release samples. As established in this support document in section 3.10.1.1, Use of Qualified Data, neither the HRS nor existing court rulings require EPA to limit its use of data to absolutely perfect results as long as EPA has made reasonable efforts to address potential shortcomings in the accuracy for individual qualified results to
ensure that each observed release is establis hed with confidence. In fact, the Court ( Board of Regents of the University of Washington v. EPA , 86 F.3d 1214 [DC Cir. 1996]) has condoned the use of analytical results with laboratory imperfections if a reasone d explanation is provided showing the quantitative accuracy of the data is sufficient to document the significant increase (see section 3.10.1.1, Use of Qualified Data, of this support document). As furt her described below, the "C" qualifier in question does not in any way affect the accuracy or im ply that there were data quality issues.

Table 2 of the HRS documentation record at proposal stated that the “C” qualifier indicated “[r]esult confirmed by GC/MS [gas chromatography/mass spectrome try].” In the Organic Data Validation Report, page 13 of Reference 17 of the HRS documentation reco rd at proposal, further explained that “Aroclor 1260 was confirmed by GC/MS for sample B5Q42 [DLL-SED12A] .”

Page 18 of the HRS documentation reco rd at proposal stated that “[t]he background and release samples were all analyzed for TCL Aroclors through the Contract Laboratory Program (CLP).” Organic analyses within the CLP, including Aroclor analyses, were carr ied out as specified in the Statement of Work for Organics Analysis, SOM0.1.2 (Attachment 4 to th is support document). SOM01.2, page D-45/ARO, explains that for Aroclors:

[a]ny Aroclor anayte listed in Exhibit C (Aroclors) for which a concentration is reported from a GC/Electron Capture Detection (GC/ECD) analysis may have the identification confirmed by GC/MS if the concentration is sufficient for that purpose.

SOM01.2 (p. D-46/ARO, section 11.1.2.3.2) sets th e general level triggering GC/MS confirmation for sediment samples at 3,300 ug/kg. This level was met by Aroclor 1260 for sample DLL-SED12A, and

51Dewey Loeffel Landfill NPL Listing Support Document March 2011

thus GC/MS confirmation was carried out. As pa rt of the reporting process for method SOM01.2, laboratories may affix explanatory qualifiers to the analytical data. In some cases, these qualifiers are descriptive (e.g., “U” means not detected), while in ot her cases the qualifiers reflect data quality issues. As described on page B-48 of SOM01.2, “C” is a desc riptive qualifier that is applied to an Aroclor result when the identification of an analyt e has been confirmed by GC/MS.

Thus, the “C” qualifier was correctly applied to th e DLL-SED12A Aroclor 1260 result, was appropriately defined in the HRS documentation record, and does not imply that any data quality issues occurred. The Aroclor 1260 result was not “merely” confirmed by GC/MS; it was accurately quantitated by GC/ECD, and the identity of the analyte was additionally confirmed by GC/MS (itself a highly accurate technique), thus adding an additional layer of confid ence to an already acceptably accurate result.

Regarding the comment that no Form 1 was included for the DLL-SED12A Aroclor 1260 result, a Form 1 was provided on page 5 of Referen ce 17 (cited in Table 2 of the HRS documentation record at proposal); this Form 1 is for the 2x dilution, but includes an edit from the validator listing the final value of 3,300 μg/kg for the 20x dilution. Additionally, the original laboratory Form 1 for the 20x dilution is shown on page 39 of Reference 44 added to the HR S documentation record at promulgation.

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.

3.11.2.3 “UJ”-Qualified Background

Comment : GE questioned the use of analytical results that were qualified UJ from samples DLL-SED08 and DLL-SED18 from the June 2009 sampling event used to identify a background PCB, “because they failed to meet certain quality assurance criteria.”

Response : The background level for the June 2009 sampli ng in the documentation record at proposal was correctly established. Of the three backgroun d samples, only two analyses (DLL-SED08 and DLLSED18) are qualified; and as discussed below, these qualif iers were determined to have been incorrectly applied and thus have no impact on the accuracy of the resulting contaminant c oncentrations. The third unqualified analysis (from DLL-SED27), a result of “not-detected” and having the highest sample quantitation limit (SQL) of 87 μg/kg, was used to set the background level which observed release samples must meet or exceed. (See section 3.11. 3,, Observed Release to Valatie Kill: Validity of Background Samples, of this support document regard ing the adequacy of these background samples.)

As shown in section 3.11.1 (Observed Release to Valatie Kill: Continuity of the Observed Release) of this support document, the observed releases in the waters hed downstream of PPE1 in the former Mead Road Pond, Tributary T11A, Valatie Kill and the northern po rtion of Nassau Lake were correctly established,
consistent with the HRS.

The HRS does not identify requirements or define cond itions for the use of qualified data to establish an
observed release. As established in section 3.10.1.1 (Use of Qualified Data) of this support document, neither the HRS nor existing court rulings require EPA to limit its use of data to absolutely perfect results as long as EPA has made reasonable efforts to address potential shortcomings in the accuracy for individual qualified results, ensuring that each obser ved release is established with confidence.

Upon further inspection of the laboratory data pack age for these samples (added as Reference 42 of the HRS documentation record at promulgation), it was dete rmined that the “UJ” qualifiers were incorrectly applied to samples DLL-SED08 and DLL-SED18 due to a peak identification error occurring in instrument software at the laboratory (see Refere nce 42 added to the HRS documentation record at

52Dewey Loeffel Landfill NPL Listing Support Document March 2011

promulgation, pp. 86, 94, 169, and 170, for the relate d original laboratory data sheets, and Reference 43
added to the HRS documentation record at promulgation, pp. 86, 94, 169, and 170, for those data sheets corrected by the laboratory). The Aroclor-1260 results for samples DLL- SED08 and DLL-SED18 were not-detected (“U”-qualified) at their related SQLs of 42 μg/kg and 44 μg/kg, respectively. The “U” qualifier was changed to a “UJ” qualifier during valid ation due to a low surrogate recovery in an associated continuing calibration verification sample. However, it has been determined that what appeared to be a low surrogate recovery was the result of a laboratory instrument misidentification of the chromatographic peak corresponding to the surrogate compound. Upon reanalysis, EPA has determined that correcting the peak identification yields an accep table recovery for the surrogate, and that the “UJ” qualifier is not necessary. The Aroclor results for samples DLL-SED08 and DLL-SED18 have therefore been corrected in the HRS documentation record at pr omulgation to not-detected (“U”-qualified) at their related SQLs of 42 μg/kg and 44 μg/kg.

Even if the “UJ” qualified background samples (D LL-SED08 and DLL-SED18) were ignored, a third sample DLL-SED27 could still be used to appropriately set the background level fo r June 2009 samples. In this case, any loss of range of physical ch aracteristics in background samples and any physical differences between DLL-SED27 and the related observed release samples would only tend to strengthen
the establishment of an observed release. That is , because DLL-SED27 has relatively greater levels of TOC and silt, clay, and colloids than the observed release samples, associated Aroclor-1260 would only be expected to be greater, thus confirming the ob served releases that exceed this background level.

Additionally, the background level of 47 μ g/kg established by the August 2009 background samples—at the same locations and only two months later—s upports the background level of 87μg/kg set by June 2009 background samples (see pages 20 and 21 of the HRS documentation record at proposal, Tables 1 and 2). That is, the August 2009 background concen trations were even lower than the June 2009 concentration used to set the background level for establishing observed releases; therefore, these samples demonstrate that the true background level could have an even lower concentration. Similarly, the June 2009 observed releases (samples DLL-SED10, DLL-SED 11, and DLL-SED12, listed in Table 1 of the HRS documentation record at proposal) are strengthened by the August 2009 observed releases established at the same locations (samples D LL-SED10A, DLL-SED11A, and DLL-SED12A, listed in Table 2 of the HRS documentation record at proposal).

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.

3.11.2.4 Need for Additional Sampling

Comment : GE stated that “[g]iven these significantly di ffering results for samples at the same locations, and the “J” qualified nature of one set of results , it was incumbent upon EPA, and required by EPA’s HRS Guidance Manual, that the Agency take add itional samples before determining whether any
‘observed releases’ exist.”

Response : As has been shown in this support document in the subsections of section 3.11.2 (3.11.2.1, Concentration Differences; 3.11.2.2, “C” Qualifier; 3.11.2.3, “UJ”-Qualified Background), the analytical data used in the HRS documentation record at propos al were sufficient to establish observed releases in Mead Road Pond, Tributary 11A, and Valatie Kill. There was therefore no need for additional sampling.

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.

53Dewey Loeffel Landfill NPL Listing Support Document March 2011

3.11.3 Observed Release to Valatie Kill: Validity of Background Samples

Comment : GE commented that EPA did not collect a nd analyze sufficient background sediment samples to compare with release samples in the Valatie Kill, Mead Road Pond area, and Tributary 11A.

GE pointed out that the HRS Guidance Manual states that while in some circumstances a single sample might provide a defensible backgroun d level with which to compare a release sample, this is not the case when the hazardous substances being considered are wid espread in the environment. GE argued that as recognized in the NYSDOH’s fish consumption advisory, PCBs are commonly found in fish throughout New York, indicating the widespread presence of PCBs in state waters. GE stated that in this situation, the Guidance Manual indicates that background “should be established by more than one sample, and preferably by a significant number of samples.”

GE asserted that EPA established background levels using samples from three locations, and collected unqualified data from only one location: the other two results were qualified as “UJ.” “Thus, EPA collected high quality data from only one sample location . . .” GE claimed this made the observed release unreliable, and that EPA should have collect ed additional background samples at other locations to demonstrate the true background level was below th e SQL before determining PCBs in release samples were above background.

Response : The background samples used to generate background levels for the June 2009 and August 2009 sampling events were sufficient for the purpo ses of a screening tool. The “UJ” qualifiers were determined to have been applied in error, and thus do not affect the data quality or usability of the background sample analyses in question. Three valid background samples for each sampling event were
used to establish observed releases for the Site. PCBs are manmade substances and are not ubiquitous in the environment as demonstrated by many samples showing non-detectable levels of PCBs. Further background sampling was not necessary.

As shown in section 3.11.1 (Observed Release to Valatie Kill: Continuity of the Observed Release) of this support document, the observed releases in the waters hed downstream of PPE1 in the former Mead Road Pond, Tributary T11A, Valatie Kill, and the northern portion of Nassau Lake were correctly established. The significant increase requirements in HRS Section 2.3, Likelihood of release , and HRS Table 2-3 to
establish an observed release of PCBs were met and the significant increase is attributable to the Site.

Pages 18-19 of the HRS documentation record at pr oposal showed that the background samples used were appropriate by establishing similarity between background and release samples:

Background samples were collected upstream from influence by the source [Figure 2]. The release sample data from three different water body types (stream, lake, spring) were compared to samples from the only u sable upgradient background locations, which came from stream samples [Tables 1 and 2] (i.e., there were no lakes or springs immediately upgradient of the release sample locations). The background and release samples were handled the same procedura lly and were similar physically, as follows:

• Sampling Methods: The background and release sediment samples were all collected by EPA, using Standard Operating Procedures (SOP), during the June and August 2009 sampling events [Ref. 14, pp. 2-6; 15, pp. 2-8].

• Analytical Procedures: The background and release samples were all analyzed for TCL Aroclors through the Contract Laboratory Program (CLP) [Ref. 16, pp. 1-43; 17, pp. 1-84]. The samples were also analyzed for grain-size distribution according to Method ASTM D422-63 and for TOC according to Method CORP

54Dewey Loeffel Landfill NPL Listing Support Document March 2011

ENG 81M/SW9060M by Accutest Laboratories of Dayton, New Jersey [Ref. 18 through 22].

• Data Validation: The PCB analytical da ta were reviewed independently by EPA according to “SOP HW-37 (Revision 1), USEPA Region II Data Validation
SOP for Statement of Work SOM01.2” da ted August 2007 [Ref. 16, pp. 2-9; 17, pp. 8-11, 41-44, 69-72, 81-84]. The data reviewers found the results to be valid and acceptable with the following exception:

o The non-detect results for background samples DLL-SED43A, DLLSED44A, DLL-SED45A, and DLL-SED46A, collected in August 2009, were found to be unusable because pe rcent moisture content exceeded 90% [Ref. 15, pp. 7-8; 17, pp. 33-35, 41, 44, 73, 81, 84].

• Water Body Type: Background and rel ease samples presented in Tables 1 and 2were all collected from small streams, with the exception of sample DLLSED34A, which was collected from Na ssau Lake in August 2009. EPA collected background lake samp les DLL-SED43A, DLL-SED44A, DLLSED45A, and DLL-SED46A from Lyons Lake [see Figure 2] in August 2009, and Aroclors were not detected. However, the non-detect results for the Lyons Lake samples were found to be unusab le because percent moisture content exceeded 90%. The percent moisture values ranged from 91% to 93%, whereas the percent moisture value for sample DLL-SED34A was 78% [Ref. 14, pp. 4-6, 9; 15, pp. 5-8, 11; 17, pp. 33-35, 41, 44, 73, 81, 84]. Based on these considerations, the results for sample DLL-SED34A are compared to the highest usable background value for significance above background [Table 2].

• Sampling Depth: Background and release samples were all collected from the 0- to 6-inch interval below top of sediment [Ref. 13, pp. 10-19, 21-47].

• Percent Moisture: The percent moistu re in the background samples ranged from approximately 17% to 62%, while percent moisture in the release samples ranged from approximately 15% to 78% [Ref. 16, pp. 17, 28, 30-32, 38; 17, pp. 3-5, 7, 17, 20-24, 31-32, 44-45, 50, 74].

• Total Organic Carbon: The TOC levels in the background samples ranged from less than 1,300 milligrams per kilogram (mg/kg) to 33,000 mg/kg, while TOC levels in the release samples ranged from less than 1,200 mg/kg to 53,300 mg/kg [Ref. 18, pp. 14, 16-18, 24, 32; 20, p. 7, 14, 16; 21, pp. 6, 9, 12-15; 22, pp. 12-15, 17].

• Grain Size: The amount of fine-grained ma terials (silt, clay, and colloids) in the solid portion of the background samples ranged from 4.9% to 39.7%, with an average of 17.2%. The amount of fine-grained materials in the solid portion of the release samples ranged from 0.74% to 90.4%, with an average of 16.5% [Ref. 18, pp. 14, 16-18, 24, 32; 20, p. 7, 14, 16; 21, pp. 6, 9, 12-15; 22, pp. 12- 15, 17].

Due to the similarities (i.e., same time frames, sampling and analytical methods, and sampling depths; overlapping ranges of percent moisture, TOC, and grain-size) among the background and release samples, the bac kground and release analytical results are considered to be comparable.

Thus there is no reason to consider that the differences in PCB concentrations are due to differences in the sample characteristics.

55Dewey Loeffel Landfill NPL Listing Support Document March 2011

Section 3.11.2.3 (“UJ”-Qualified Background) of this support document, explains that the “UJ” qualifiers applied to two June 2009 backgr ound samples do not affect the appropriateness of the June 2009 background level established in the HRS documentation record at proposal. Additionally, three more background samples were used in the HRS documenta tion record at proposal to establish a background level for the August 2009 results (as shown in Table 2 on page 21 of the HRS documentation record at proposal). Both June and August results were us ed to establish observed releases in Mead Pond, Tributary 11A, and Valatie Kill; thus, GE’s assertion that observed releases to these areas are based on one background sample is incorrect.

Regarding GE’s statement that PCBs are found in fi sh throughout New York, this does not prove that PCBs are ubiquitous in the local area investigated fo r the Dewey Loeffel Landfill site. In fact, all six background samples listed in Tables 1 and 2 of the HRS documentation record at proposal contained undetected levels of the Aroclors scored for the Site, and Table 2 in section 3.10.4 (Observed Release to Nassau Lake: Background Similarity) of this support document lists sever al other local samples in which Aroclors were not detected, thus demonstrating that these Aroclors are not ubiquitous or widespread in the area. Additionally, observed releases in the area ar e established in sediment samples, not fish tissue. Thus, GE’s broad statement concerning fish contamination in the state of New York does not negate the
establishment of observed release concentrations in sediments significantly above background in the area
of the Site.

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.



### 3.12 Human Food Ch ain Threat Targets

3.12.1 Zone of Contamination

Comment : Several GE comments identified that not all samples collected from th e Valatie Kill, Mead Road Pond Area, or Tributary T11A established observed releases, and GE therefore questioned identification of targets in the areas of these no-obser ved release samples as actually contaminated. These comments challenge the establishment of the zone of contamination. GE stated that EPA acknowledges that two of its sediment samples, DLL-SED03/03A and DLL-SE04/04A, which GE stated as bracketing approximately 50% of the Kill between its confluen ce with Tributary T11A and Nassau Lake, did not show any observed releases. GE also stated that EPA identified no observed releases in an area GE had remediated (Area 28).

Response : The zone of contamination for surface water w as established consistent with the HRS and the targets within that zone were properly identified as actually contaminated. In identifying an observed release in a water body or a zone of contamination, there is no HRS requirement that all samples in that water body meet observed release criteria.

HRS Section 4.1.1.2, Target distance limit , states that

[t]he target distance limit defines the maximum distance over which targets are considered in evaluating the site. Determ ine a separate target distance limit for each
watershed as follows:

. . .

• If there is an observed release from the site to the surface water in the watershed that is based on sampling, begin measuring the target distance limit for the watershed at the probable point of entry; extend the targ et distance limit either for 15 miles along

56Dewey Loeffel Landfill NPL Listing Support Document March 2011

the surface water or to the most distant sample point that meets the criteria for an observed release to that watershed, whichever is greater.

In evaluating the site, include only surface wate r targets (for example, intakes, fisheries, sensitive environments) that are within or contiguous to the hazardous substance migration path and located, partially or wholly, at or between the probable point of entry and the target distance limit applicable to the watershed:

. . .

• Determine whether targets within or contiguous to the hazardous substance migration path are subject to actual or potential contamination as follows:

- If a target is located, partially or wholly , either at or between the probable point of entry and any sampling point that meets the criteria for an observed release to the watershed or at a point that meets the criteria for an observed release by direct observation, evaluate that target as subject to actual contamination, except as otherwise specified for fisheries in se ction 4.1.3.3 and for wetlands in section 4.1.4.3.1.1. If the actual contamination is based on direct observation, assign
Level II to the actual contamination. Ho wever, if the actual contamination is based on samples, determine whether the actual contamination is at Level I or Level II concentrations as specified in sections 4.1.2.3, 4.1.3.3, and 4.1.4.3.1.

- If a target is located, partially or wholly , within the target distance limit for the watershed, but not at or between the probable point of entry and any sampling point that meets the criteria for an observed release to the watershed, nor at a point that meets the criteria for an observed release by direct observation, evaluate it as subject to potential contamination.

Thus, the HRS considers targets subject to actual contam ination if they are between the probable point of entry (PPE) and the furthest downstream sample th at meets observed release criteria (regardless of whether or not there are samples between these points that do not meet the criteria). The only exception to this is provided in HRS Section 4.1.3.3, Human food chain threat-targets, which identifies further requirements for determining a human food chain fishery within the zone of contamination:

Evaluate two target factors for each waters hed: food chain indivi dual and population. For both factors, determine whether the target fisheries are subject to actual or potential
human food chain contamination.

Consider a fishery (or portion of a fishery) within the target distance limit of the watershed to be subject to actual human food chain contamination if any of the following apply:

• A hazardous substance having a bioaccumu lation potential factor value of 500 or greater is present either in an observed release by direct observation to the watershed or in a surface water or sediment sample from the watershed at a level that meets the criteria for an observed release to the watershed from the site, and at least a portion of the fishery is within the boundaries of the observed release (that is, it is located either at the point of direct observation or at or between the probable point of entry and the most distant sampling point establishing the observed release).

• The fishery is closed, and a hazardous s ubstance for which the fishery has been
closed has been documented in an ob served release to the watershed from the site, and at least a portion of the fishery is within the boundaries of the observed
release.

57Dewey Loeffel Landfill NPL Listing Support Document March 2011

• A hazardous substance is present in a tissu e sample from an essentially sessile, benthic, human food chain organism from the watershed at a level that meets the criteria for an observed release to the watershed from the site, and at least a portion of the fishery is within the boundaries of the observed release.

As established in the HRS documentation record at proposal and explained in section 3.11.1 (Observed Release to Valatie Kill: Continuity of the Observe d Release) of this support document, the observed releases to the Mead Road Pond, Valatie Kill, and Tr ibutary T11A were establis hed correctly, consistent with the HRS. Regarding the zone of contamina tion, page 18 of the HRS documentation record at proposal stated that:

[a]n observed release by chemical analysis is documented along the surface water migration pathway downstream of the Dewey Loeffel Landfill facility, between sample location DLLSED12 in the former Mead Road Pond and sample location DLL-SED34A in Nassau Lake, approximately 3.4 miles downstream.

Tables 1 and 2 on pages 20-23 of the HRS documen tation record at proposal presented background sample and observed release sample concentrati ons. Figure 2 on page 11 of the HRS documentation record at proposal showed the locations of backgro und and observed release samples, as well as the extent of the zone of contamination—that portion of the wa tershed in which targets are generally considered subject to actual contamination—extending from PPE 1 to the furthest downstream sample meeting observed release criteria (DLL-SED034A). Page 17 of the HRS documentation record at proposal identified targets subject to actual contamination:

[t]he known zone of contamination extends from PPE1 at the northwest corner of the facility into Nassau Lake (sample DLL-SD 34A), approximately 3.4 miles downstream [see Figure 2]. Targets subject to actual contamination include the Valatie Kill and Nassau Lake fisheries [see Section 4.1.3.3] . . .

Therefore, the establishment of the zone of contamin ation and consideration of human food chain targets within the zone of contamination to be subject to act ual contamination was consistent with the HRS. The presence of samples within this zone that do not meet observed release criteria does not alter the zone of actual contamination according to the HRS. (Speci fic effects of this comment on wetland scoring are further discussed in sections 3.12.3.1, Adequacy of Link of Observed Releases to Fishery Closure, and 3.13.5, Actually Contaminated We tlands, of this support document.)

Also, even if GE’s remediation actions were take n into account, the Site would still score because:

• Removal has no effect on the HRS waste quantity evaluation; and,

• As explained in section 3.13.4 (Consideration of Removal) of this support document, although not directed by the HRS, if the wetlands fr ontage associated with the removal area were subtracted from the revised total frontage ev aluated in the HRS documentation record at promulgation, the Site score would not change.

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.

58Dewey Loeffel Landfill NPL Listing Support Document March 2011

3.12.2 Closed Fishery

Comment : GE declared that the fisheries in Nassau Lake and the Valatie Kill had not been closed due to PCB releases from the Site, and had not even been clo sed. GE made three arguments in support of this
claim:

• That the fishery is not closed

• That the closure/advisory was not due solely to releases from the Site

• That the consumption advisory should be relaxed.

Response : The fishery in Nassau Lake and the Valatie Kill is correctly considered closed for human consumption consistent with the intent of the HRS and the closed fishery was correctly scored.

HRS Section 4.1.3.3, Human food chain threat-targets , states in part:

Evaluate two target factors for each waters hed: food chain indivi dual and population. For both factors, determine whether the target fisheries are subject to actual or potential
human food chain contamination.

Consider a fishery (or portion of a fishery) within the target distance limit of the watershed to be subject to actual human food chain contamination if any of the following apply:

•

....

• The fishery is closed, and a hazardous s ubstance for which the fishery has been
closed has been documented in an observe d release to the watershed from the site, and at least a portion of the fishery is within the boundaries of the observed release.

Page 26 of the HRS documentation record at proposal stated that:

Nassau Lake and the Valatie Kill betw een County Route 18 and Nassau Lake are
fisheries that have been closed due to th e site-related PCB contamination; New York State Department of Health (NYSDOH) has i ssued “Eat No Fish” advisories [Figure 2; Ref. 8, pp. 21, 26; 23, pp. 13, 17, 21]. Local residents occasionally ate fish from both water bodies prior to implementation of the a dvisories, but stopped consumption due to the PCB contamination [Ref. 24, pp. 1-50]. These fisheries are both within the zone of contamination for the Dewey Loeffel Landfill s ite [Figure 2]. The HRS says to consider a closed fishery (or portion of a fishery) within the target distance limit (TDL) of the watershed to be subject to actual human food chain contamination if a hazardous substance for which the fishery has been cl osed has been documented in an observed release to the watershed from the site and at least a portion of the fishery is within the boundaries of the observed release [Ref. 1, p. 51620, Section 4.1.3.3]. Therefore, Actual Contamination is documented, and the target closed fishery is evaluated for Actual
Human Food Chain Contamination. Level I targets were not established because doing so would not change the site score, so th e target fishery is subject to Level II concentrations [Ref. 1, pp. 51592-51593, 51620-51621].

The following subsections of this response addr ess GE’s specific assertions regarding the fishery:

• 3.12.2.1 Presence of a Closed Fishery

• 3.12.2.2 Cause of Closure

59Dewey Loeffel Landfill NPL Listing Support Document March 2011

• 3.12.2.3 Status of Consumption Advisory

3.12.2.1 Presence of a Closed Fishery

Comment : GE declared that the fishery in the Valatie Kill and in Nassau Lake had not been closed because the NYSDOH advisory only limits fishing to catch and release fishing, not to no fishing. GE
asserted that the HRS contains no definition of a cl osed fishery, and that the HRS Guidance Manual deems a fishery closed if it is closed or restrict ed by a government entity and such closure prohibits fishing for commercial, recreational, or subsisten ce purposes. GE commented that this guidance is not binding and that “the natural reading of ‘closed’ in the HRS is that fishing is prohibited.”

Response : The identification of the fishery in Nassau Lake and Valatie Kill as closed is consistent with the HRS because consumption of fish is banned by the State.

Given that the HRS threat under which fisheries are evaluated is the “human food chain threat,” the emphasis of this threat is on the consumption of aqua tic organisms, e.g., a fishery, as a migration route resulting in humans coming in contact with released hazardous substances.

In discussion of the human food chain threat, the preamble to the HRS (55 FR 51557) states:

Human food chain. SARA [the Superfund Amendments and Reauthorization Act of 1986] requires that EPA consider “the damage to natural resources which may affect the human food chain * * *” Accordingly, the surface water migration pathway of the proposed rule included evaluation of threats to human health via the aquatic food chain.

In assignment of a human food chain popula tion value, HRS Sect ion 4.1.3.3.2.1, Level I concentrations

, states in part to

[e]stimate human food chain production for the fishery based on the estimated annual production (in pounds) of human food chain organisms (for example, fish, shellfish) for that fishery, except: if the fishery is closed and a hazardous substance for which the fishery has been closed has been documented in an observed release to the fishery from a source at the site, use the estimated annual production for the period prior to closure of the fishery or use the estimated annual produc tion from comparable fisheries that are not closed. [emphasis added]

HRS Sections 4.1.3.3.2.2, Level II concentrations , and 4.1.3.3.2.3, Potential human food chain

contamination , refer back to HRS Section 4.1.3.3.2.1 language in determining human food chain population values.

Page 26 of the HRS documentation record at proposal states that:

Nassau Lake and the Valatie Kill betw een County Route 18 and Nassau Lake are
fisheries that have been closed due to th e site-related PCB contamination; New York State Department of Health (NYSDOH) has i ssued “Eat No Fish” advisories [Figure 2; Ref. 8, pp. 21, 26; 23, pp. 13, 17, 21]. Local residents occasionally ate fish from both water bodies prior to implementation of the a dvisories, but stopped consumption due to the PCB contamination [Ref. 24, pp. 1-50]. These fisheries are both within the zone of contamination for the Dewey Loeffel Landfill s ite [Figure 2]. The HRS says to consider a closed fishery (or portion of a fishery) within the target distance limit (TDL) of the watershed to be subject to actual human food chain contamination if a hazardous

60Dewey Loeffel Landfill NPL Listing Support Document March 2011

substance for which the fishery has been cl osed has been documented in an observed release to the watershed from the site and at least a portion of the fishery is within the boundaries of the observed release [Ref. 1, p. 51620, Section 4.1.3.3]. Therefore, Actual Contamination is documented, and the target closed fishery is evaluated for Actual
Human Food Chain Contamination. Level I targets were not established because doing so would not change the site score, so th e target fishery is subject to Level II concentrations [Ref. 1, pp. 51592-51593, 51620-51621].

Pages 13 and 17 of Reference 23 (the NYSDOH fishi ng health advisories) of the HRS documentation record at proposal, cited to support the closed fish ery, gives a recommendation of “Eat none” for Nassau
Lake and Valatie Kill between County Rt. 18 and Nassau Lake.

It is therefore reasonable to consider a fishery—such as that scored for this site in which a state regulation prohibits human consumption of fish—a closed fish ery for the purposes of HRS scoring under the human food chain threat even though catch and release fishing is still allowed.

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.

3.12.2.2 Cause of Closure

Comment : GE stated that the fish consumption advisory cannot be attributed solely to releases from the Site. It identified that the [NYS] DOH h as a general advisory “applicable to every freshwater location in the state” limiting the amount of fish that can be cons umed to no more than one meal per week due to the presence of PCBs and mercury commonly found in fish throughout New York, including fish nowhere near the Site. GE noted this advisory would apply to Nassau Lake and Valatie Kill even if this site did
not exist.

GE also pointed out that data from fish tissue samp ling from a station above the confluence of Tributary 11a and Valatie Kill (above the influence of the Site) showed PCBs and that the PCB concentrations in
fish in the Valatie Kill and Nassau Lake “are not solely attributable to the Site.”

Response : The HRS does not require that a site be the onl y source of contamination in fish tissue for the fishery to be shown as actually contaminated. The HRS only discusses the attribution of the contamination in a fishery in the context of scoring a s ite when determining whether a fishery is subject to actual or potential contamination.

HRS Section 4.1.3.3, Human food chain threat-targets , requires that to establish an actually contaminated fishery:

[A] hazardous substance for which the fishery has been closed has been documented in
an observed release to the watershed from the site.

There is no HRS requirement that the hazardous substa nce releases for which the fishery has been closed must be attributed only to the site, only that the h azardous substance (PCBs in this case) be in an observed
release from the site.

That PCBs are found in an observed release from the Site is established on page 26 of the HRS documentation record at proposal (see section 3.12.2 , Closed Fishery, of this support document).

61Dewey Loeffel Landfill NPL Listing Support Document March 2011

Additionally, while the HRS does allow for fish tissue to be used in identifying an observed release, this was not the basis for identifying an observed release at this site; the observed releases of PCBs at this site were based on sediment concentrations, not fish tissue samples. Therefore, that there are PCBs in an upgradient portion of a fishery is also not a f actor in determining an observed release of PCBs.

Thus the comment that some portion of PCBs potentia lly present in fish tissue at the Site may have origins outside the Site has no effect on the human food chain threat score or on the overall HRS site

score.

Furthermore, the NYSDOH general statewide advisory is not the advisory used to establish a closed fishery for HRS purposes at the Site. Rather, th e more specific NYSDOH “Eat none” advisories applied to the portions of Nassau Lake and Valatie Kill (lis ted in Reference 23 of the HRS documentation record at proposal) within the zone of contamination are a ppropriately cited to support the scoring of a closed fishery at this site.

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.

3.12.2.3 Status of Consumption Advisory

Comment : GE claims that “the existing fish consumpti on advisory (‘eat none’) c ould be relaxed” and the fishery would no longer be considered closed. GE stat ed that the PCB level in fish in Nassau Lake and Valatie Kill may still be at a level requiring some fish consumption advisories; the data show that PCB levels in fish are continuing to decline through natural recovery. GE had its consultant, ARCADIS, reevalute the existing NYSDOH advisories based on 2008-2009 data collected by GE under the State’s oversight. GE asserted that this reevalution was c onducted using two different methods. The first was the “Health Advisory Evaluation Process” that was used by the State in the late 1900s and early 2000s.
The second was what GE claimed the “more conservative Great Lakes Protocol (‘GLP’) that is considered by some state health departments.” GE submitted these analyses and argued that both indicated the consumption advisory c ould be relaxed to allow limited consum ption of certain fish species. GE also asserted that there was “every expectation th at the PCB levels in fish tissue will continue to decline as natural recovery continues.” GE further no ted that the State itself has concluded that the PCB
levels in Nassau Lake have declined and that fi sh taken from the Valatie Kill have “benefitted from the cleanup.”

Response : At the time of proposal and at promulgation of the Dewey Loeffel Landfill site, the fishery in the zone of contamination for the Site was closed (a n “eat none” advisory was active). Whether or not the advisory should be reconsidered is not relevant to the HRS scoring.

HRS Section 4.1.3.3, Human food chain threat-targets , states in the portion relative to the scoring of this
site:

Evaluate two target factors for each waters hed: food chain indivi dual and population. For both factors, determine whether the target fisheries are subject to actual or potential
human food chain contamination.

Consider a fishery (or portion of a fishery) within the target distance limit of the watershed to be subject to actual human food chain contamination if any of the following apply:

•

....

62Dewey Loeffel Landfill NPL Listing Support Document March 2011

• The fishery is closed, and a hazardous s ubstance for which the fishery has been
closed has been documented in an observe d release to the watershed from the site, and at least a portion of the fishery is within the boundaries of the observed release.

Page 26 of the HRS documentation reco rd at proposal, as quoted in section 3.12.2 (Closed Fishery) of this support document, established that fisheries within the zone of contamination are closed (by NYSDOH
issuance of “Eat none” advisories listed in Reference 23 of the HRS documentation record at proposal). See section 3.12.1 (Zone of Contamination) of this support document for further discussion of the zone of contamination. Additionally, the NYSDOH advisories remain in place for fish in Nassau Lake and Valatie Kill between County Rt. 18 and Nassau Lake as documented in the State’s current publication (see pages 19 and 20 of the NYS DOH Chemicals in Sportfish and Game, 2010-2011 Health Advisories,
added as Reference 50 to the HRS docum entation record at promulgation).

The HRS does not address possible reevaluation of a fishery closure; it only requires that the fishery “is closed” in order to consider that fishery as subj ect to actual contamination for the purposes of HRS scoring. The future status of a fishery is not relevant to the HRS evaluation.

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.

3.12.3 Fisheries at Observed Release Locations

3.12.3.1 Adequacy of Link of Observed Releases to Fishery Closure

Comment : GE commented that “even if these fisheries could be appropriately deemed ‘closed,’” the observed releases were limited to certain specific portions of the Nassau Lake and Valatie Kill. It claimed that the locations of the releases do not include the majority of the lake or about half of the Kill between Tributary 11A and the lake, and that EPA has not shown that the fisheries exist or previously existed in
the observed release locations. GE concluded that EPA had not adequately linked observed releases to a closed fishery.

GE noted that one observed release sample (DLL-SED12) was collected just outside of the Landfill and not in any area that constitutes a fishery. It id entified that even if it accepted the EPA zone of contamination, this zone did not include the southern portion of the lake and the part of the Valatie Kill between County Route 18 and Tributary 11A. GE stated that EPA did not identify observed releases in the portion of the Valatie Kill between samples DLL-SED03/03a and DLL-SED04/04A, which it claimed encompassed 50% of the length of the Kill between Tributary 11A and Nassau Lake.

Response : The presence of the closed fisheries within the zone of contamination based on observed release sample locations was correctly establishe d in the HRS documentation record at proposal.

As documented in section 3.12.1 (Zone of Contamination) of this support documen t, EPA’s delineation of the zone of actual contamination was performed stri ctly following the exact wording of HRS Sections 4.1.1.2, Target distance limit, and 4.1.3.3.1, Food chain individual , ) and is explained on page 18 of the HRS documentation record at proposal. The zone of contamination extends from the PPE to Tributary
11A to the furthest downstream observed release sa mple. The presence of samples DLL-SED03/03A and DLL-SED04/04A, which do not meet observed release criteria, does not remove the portion of Valatie Kill between these samples from being considered part of the zone of actual contamination. (EPA notes
that for the contamination to be found in an observe d release downstream of these samples means that the

63Dewey Loeffel Landfill NPL Listing Support Document March 2011

contamination must have at some time passed through the currently cleaner portion of the stream in which samples 03/03A and 04/04A were collected.)

In addition, as explained in secti on 3.12.2 (Closed Fishery) of this support document, a portion of the closed fishery need only be in this zone to consider that fishery subject to actual contamination for the purposes of HRS scoring; the score for the presence of an actually contaminated fishery is assigned the same value regardless of the size of the zone of contam ination. Thus, it is not relevant to the HRS score whether all or part of the stream is in the zone of contamination as long as there is a fishery in the zone of contamination. The score remains the same as at proposal.

Furthermore, page 26 of the HRS doc umentation record at proposal stated that “Nassau Lake and the Valatie Kill between County Route 18 and Nassau Lake are fisheries that have been closed due to the siterelated PCB contamination.” Figure 2 on page 11 of the HRS documentation record at proposal showed locations of samples meeting observed release criteri a. Though not required by the HRS, because the continuous stretch of Valatie Kill between County Route 18 and Nassau Lake and the entire Nassau Lake itself are listed as closed to fishing for consumpti on, the exact points of established observed release locations in these water bodies are overlapping with a fishery.

Regarding the portion of Valatie Kill between County Route 18 and Tributary 11A, and the southern portion of Nassau Lake, EPA has not identified these areas as part of the zone of actual contamination in the HRS evaluation; the related comments are therefor e irrelevant. However, the southern portion of
Nassau Lake is still considered within the 15-mile target distance limit (TDL).

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.

3.12.3.2 Fisheries Not Adequately Linked to Observed Releases

Comment : GE next claimed that the information presented regarding the extent of the previous (and now restricted) human food chain fisheries is not adequate ly linked to the observed release locations, and that EPA had not compiled independent evidence of the areal extent of the fisheries in the water bodies. GE asserted that EPA relied solely on a set of 24 responses to a brief questionnaire sent by the NYSDEC to residents about their past and present fishing habits in the Kill between County Route 18 and the lake, and in the lake itself. GE argued that only a portion of the responses indicated the respondents fished in these water bodies and that given the limited locations w ithin these water bodies in which EPA found observed releases, these questionnaires were too general to allow EPA to conclude that fishing occurred or occurs
at the locations where observed releases were found.

Response : Since closed fisheries were appropriately docum ented within the zone of contamination in the HRS documentation record at proposal, the HRS does not require that human consumption be
demonstrated in the zone of contamination. The results of the questionnaires were not relied upon to score the Site; they were included as supporting informa tion to confirm that the closure was performed to protect human health.

HRS Section 4.1.1.2, Target distance limit , specifies that the zone of contamination extends from the PPE to the location of the observed release samples when using observed release by chemical analysis (as further discussed in section 3.12.1, Zone of Contamin ation, of this support document). The HRS does not restrict the zone of contamination to the precise location of observed release samples.

HRS Section 4.1.3.3, Human food chain threat-targets , states in part to:

64Dewey Loeffel Landfill NPL Listing Support Document March 2011

[c]onsider a fishery (or portion of a fishery) within the target distance limit of the watershed to be subject to actual human food chain contamination if any of the following apply:

•

....

• The fishery is closed, and a hazardous s ubstance for which the fishery has been
closed has been documented in an observe d release to the watershed from the site, and at least a portion of the fishery is within the boundaries of the observed release.

There is no requirement that the fishery be established at the observed release sample locations, only between the PPE for the site and the sample locations (the zone of contamination) to establish the presence of an actually contaminated fishery.

Page 26 of the HRS documentation record at proposal stated that:

Nassau Lake and the Valatie Kill betw een County Route 18 and Nassau Lake are
fisheries that have been closed due to th e site-related PCB contamination; New York State Department of Health (NYSDOH) has i ssued “Eat No Fish” advisories [Figure 2; Ref. 8, pp. 21, 26; 23, pp. 13, 17, 21]. Local residents occasionally ate fish from both water bodies prior to implementation of the a dvisories, but stopped consumption due to the PCB contamination [Ref. 24, pp. 1-50].

Thus, the HRS documentation record at proposal establis hed that the fisheries in Nassau Lake and Valatie Kill were closed for PCB contamination by NYSDOH advisories and that the presence of the closed fisheries in the parts of these water bodies within the zone of contamination was correctly established in the HRS documentation record at proposal.

Additionally, one public commenter gave an account of people who continue to fish from Nassau Lake and transport the fish away (see docket ID EPA-HQ-SFUND-2010-0075-0039/0039.1). HRS Section 4.1.3.3, Human food chain threat-targets , states to:

Consider a fishery (or portion of a fishery) within the target distance limit of the watershed to be subject to actual human food chain contamina tion if . . . A hazardous substance having a bioaccumulation potential factor value of 500 or gr eater is present either in an observed release by direct observation to the watershed or in a surface water or sediment sample from the
watershed at a level that meets the criteria for an observed release to the watershed from the site, and at least a portion of the fishery is within th e boundaries of the observed release (that is, it is located either at the point of direct observation or at or between the probable point of entry and the most distant sampling point establishing the observed release).

Therefore, because an observed release was appropr iately established (see se ction 3.10.2, Observed Release to Nassau Lake: Number of Releases, of this support document), even if the fish advisory were lifted and the fisheries reopened, there would still be evidence of fishing for human consumption in
Nassau Lake. This would be sufficient to document a site score above 28.50 even if the fishery in the Lake were outside the zone of contamination. (W hile the food chain individual score would drop from 45 to 20, the Level II concentrations score would drop to zero, and the human food chain threat score would drop to 42.66, the surface water migration pathway score would remain 100.00 [see HRS Section 4.1.3.3.1, Food Chain Individual , and HRS Section 4.1.3.3.2.2, Level II concentrations ]).

Regarding the 24 responses to the NYSDEC questionnair e, these responses were not used in scoring of
the Site and furthermore do not contradict the identification of a closed fishery.

65Dewey Loeffel Landfill NPL Listing Support Document March 2011

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.

3.12.4 Fishery in Mead Road Pond and Tributary TllA

Comment : GE commented that the Mead Road Pond area and Tributary T11A are too small for recreational fishing and to support fish large enough for human consumption. It stated that of the hundreds of fish samples taken from 2004 to 2009, there have been hundreds of brook trout collected, yet only one captured was 6 inches or over.

Response : As explained in section 3.12 (Human Food Ch ain Threat Targets) of this support document and its subsections, closed fisheries in Valatie Kill and Nassau Lake were appropriately scored in the HRS documentation record at proposal. Fisheries in Tributary T11A and former Mead Road Pond were not discussed or evaluated for the proposed listing.

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.



### 3.13 Environmental Threat Targets: Wetlands

Comment : GE claimed that EPA had not established that the Site is adversely affecting jurisdictional wetlands. GE defined jurisdictional wetlands as those that are covered by the Clean Water Act Section 404 administered by the Army Corps of Engineers. GE argued that the wetland delineations and the associated wetland frontage measurements used in scori ng the Site were not adequately determined. GE stated that using National Wetlands Inventory (NW I) maps to establish the existence of wetlands and associated wetland frontage measurements is insuffi cient and instead EPA should have an expert delineate the wetlands and measure wetland frontage. GE stated that the determination of the existence and boundaries of jurisdictional wetlands is critical because the human food chain threat score should be zero and the entire score given for the environmental threat is based on the existence of 1.7 miles of jurisdictional wetland frontage between the Landfill and Nassau Lake including any wetlands abutting Valatie Kill, the Mead Road Pond Area, or Tributary T11A. GE stated that two sections of the stream, Tributary T11A and Area 28 of the Valatie Kill, have undergone removal actions and GE has been released from any further liabilities by the State in those locations. Finally, GE commented that no observed releases were in the wetlands so they should not be considered in the zone of contamination.

Response : The wetlands were delineated based on the information obtained by EPA at the time of proposal, and the scoring of the wetlands was consistent with the HRS. However, in response to GE’s comments and to insure the accuracy of the eval uation, the wetlands along Valatie Kill have been
redelineated. This redelineation does not result in a decrease in the wetlands score or the overall site score. (See section 3.13.2, Wetland Delineation a nd Wetland Frontage, of this support document for details of the redelineation).

HRS Section 4.1.4.3, Environmental Threat Targets , in subsection 4.1.4.3.1.2, Level II concentrations, directs how wetland frontage is to be measured for HRS purposes. It states:

For those sensitive environments that are wetlands, assign an additional value from Table

4-24.

Estimate the total length of wetlands along th e hazardous substance migration path (that is, wetland frontage) in the area of Level II concentrations and assign a value from table

66Dewey Loeffel Landfill NPL Listing Support Document March 2011

4-24 based on this total length. Estimate this length as specified in section 4.1.4.3.1.1, except: for an isolated wetland or for a wetla nd where the probable point of entry to the surface water is in the wetland, use the perimeter of that portion of the wetland subject to Level II (not Level I) concentrations as the length.

HRS Section 4.1.4.3.1.1, Level I concentrations , states:

For rivers, use the length of the wetlands contiguous to the in-water segment of the hazardous substance migration path (that is, wetland frontage).

Table 4–24—Wetlands Rating Values for Surface Water Migration Pathway

Total length of wetlands a (miles) Assigned

value

Less than 0.1 0

0.1 to 1 25

Greater than 1 to 2 50

Greater than 2 to 3 75

Greater than 3 to 4 100

Greater than 4 to 8 150

Greater than 8 to 12 250

Greater than 12 to 16 350

Greater than 16 to 20 450

Greater than 20 500

a Wetlands as defined in 40 CFR section 230.3.

As cited in the footnote to Table 4-24, 40 CFR 230.3 provides the following definition:

The term wetlands means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar

areas.

Thus, wetlands meeting this definition are eligib le (jurisdictional) wetlands for HRS purposes.

Figure 2 of the HRS documentation record has been re vised at promulgation to use the most recent data
available from the new wetlands delineation. This figure is used and discussed in the wetland redelineation described in this support document in section 3.13.2, Wetland Delineation and Wetland Frontage.

GE’s specific comments are addressed in the following subsections:

• 3.13.1 Jurisdictional Wetlands

• 3.13.2 Wetland Delineation and Wetland Frontage

• 3.13.3 Measurement of Wetland Frontage

• 3.13.4 Consideration of Removal Actions

67Dewey Loeffel Landfill NPL Listing Support Document March 2011

• 3.13.5 Actually Contaminated Wetlands

3.13.1 Jurisdictional Wetlands

Comment : GE routinely refers to HRS eligible wetla nds as jurisdictional wetlands. GE states that jurisdictional wetlands subject to the Clean Water Act Section 404 program administered by the Army Corps of Engineers may be considered by the EPA, an d for a wetland to be considered jurisdictional, it must fall within the definition of wetlands in 40 CFR Section 230.3. GE then states that NWI maps included in the HRS documentation package at the time of proposal are insufficient to establish the presence of jurisdictional wetlands. GE noted that the HRS Guidance Manual allows use of NWI maps in establishment of wetland frontage, but that the Guidan ce suggests that if a site would not score above 28.50 unless the wetland areas are scored, furt her documentation may be needed.

Response : The HRS uses the same definition (40 CFR 230.3) to define eligible wetlands as GE does to define jurisdictional wetlands. Footnote “a” to HR S Table 4-24 notes that when assigning a wetlands rating value the wetlands eligible for HRS scoring are those “as defined in 40 CFR section 230.3.” Thus wetlands meeting this definition are eligible (jurisdictional) wetlands for HRS purposes.

Regarding NWI maps, these are generally sufficient to identify wetlands at a site; in the inspection of wetlands identified at a site, the HRS simply restricts the use of wetlands classes identified by NWI maps to those meeting the 40 CFR Section 230.3.

Regarding the HRS Guidance Manual information cited by GE, the wetlands score at this site does not significantly impact the Site score, as the human food ch ain threat score alone is sufficient to generate a site score above 28.50 and qualify the Site for th e NPL. Therefore, per the HRS Guidance Manual recommendations cited by GE, there was no need for further documentation to be provided in the HRS documentation record at proposal that the wetlands scored met HRS eligibility requirements (and the 40 CFR 230.3 definition).

Additionally, during the wetlands redelineation d escribed in section 3.13.2 (Wetland Delineation and Wetland Frontage) of this support document, the NWI maps were not relied upon to identify wetlands or determine frontage measurements.

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.

3.13.2 Wetland Delineation and Wetland Frontage

Comment : GE asserted that the wetland frontage measurement used in the scoring of the Site was based on an inadequate wetland delineation. GE pointed ou t that the identification of eligible wetlands was based on maps prepared as part of the National We tlands Inventory (NWI) and that these maps have no jurisdictional significance. GE argued that de termining the existence and boundaries of actual jurisdictional wetlands would necessitate the collection of site-specific information on soils, hydrology, and vegetation. GE stated that the HRS Guidance Ma nual allows the use of NWI maps in some instances to support reasonable estimates of the presence and boundary of wetlands, but it also says that “[w]hen wetlands may significantly impact the site score (i.e., result in a site score greater than 28.50), further documentation may be needed . . .” and that “[d] elineation by a recognized wetlands expert may be necessary.” GE explained that with the human food ch ain threat score decreasing to zero, the Site scoring above 28.50 depends on the wetland de lineation. GE pointed out that no wetland expert has sitespecifically delineated the wetlands being evaluated.

68Dewey Loeffel Landfill NPL Listing Support Document March 2011

Response : To ensure the wetland delineation was correctly performed based on the most up-to-date
information and that the HRS score reflects this information, the wetland delineation in the HRS evaluation has been updated at promulgation.

Wetland delineation is the determina tion of the boundaries where wetlands are present, while the wetland frontage is the total length of those delineated wetl ands that are present along the hazardous substance migration path.

HRS Section 4.1.4.3, Environmental Threat Targets , in subsection 4.1.4.3.1.2, Level II concentrations, directs how wetland frontage is to be measured for HRS purposes. It states:

For those sensitive environments that are wetlands, assign an additional value from Table 4-24.

Estimate the total length of wetlands along th e hazardous substance migration path (that is, wetland frontage) in the area of Level II concentrations and assign a value from table 4-24 based on this total length. Estimate this length as specified in section 4.1.4.3.1.1, except: for an isolated wetland or for a wetla nd where the probable point of entry to the surface water is in the wetland, use the perimeter of that portion of the wetland subject to Level II (not Level I) concentrations as the length.

HRS Section 4.1.4.3.1.1, Level I concentrations, states:

For rivers, use the length of the wetlands contiguous to the in-water segment of the hazardous substance migration path (that is, wetland frontage).

Page 30 of the HRS documentation record at propos al contains the explanation of how the wetland frontage had been initially delineated. It stated:

There are 1.7 miles of wetland frontage located within the zone of contamination [Figure 2; Ref. 25, p. 1; 38, pp. 1-2]. Therefore, Actual Contamination is documented, and the target sensitive environment is evaluated for Actual Contamination. There are no media-specific benchmarks for sediment, so the target sensitive environment is subject to Level II concentrations [Ref . 1, pp. 51592-51593, 51624-51625].

The wetland delineation at the time of proposal was completed consistent with the HRS based on the delineation information in the HRS package at proposal. However, the Agency agrees that the maps used
in this delineation could have been out of date. To ensure that the wetland frontage is accurately measured along the hazardous substance migration path, an additional wetland delineation has been completed to re-measure the wetland fr ontage using techniques outlined in the Corps of Engineers
Wetlands Delineation Manual Y-87-1 (January 1987) and the Interim Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Northcentral and Northeast Region , ERDC/ETL TR-09-19 (October 2009). The wetland frontage re-measurement was completed by a certified wetland scientist.
The HRS documentation record has been revised at promulgation accordingly, and the Wetlands Measurement Trip Report has been added to the HR S documentation package at promulgation and added
as Reference 45 to the HRS documentation record at promulgation. While the wetland frontage measurements slightly changed (increasing from 1.7 to 2.83 miles), this change in frontage does not impact the overall HRS environmental threat score.

GE’s assertion that the National Wetlands Invent ory should be supplemented with additional documentation is incorrect because, as explained in section 3.12 (Human Food Chain Threat Targets) of

69Dewey Loeffel Landfill NPL Listing Support Document March 2011

this support document, the human food chain threat score after consideration of the comments remains 96.06, and this threat score is sufficient without cons ideration of the wetlands to qualify the Site for the

NPL.

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.

3.13.3 Measurement of Wetland Frontage

Comment : GE next asserted that even if the wetlands were jurisdictional wetla nds, EPA had improperly measured the frontage as 1.7 miles when it should have been at most 1.4 miles. GE explained that it reviewed the length of the wetland frontage accordi ng to the HRS documentation record and found the
course of the Valatie Kill used in the EPA evaluation to be incorrect. GE asserted that a more recent GIS layer file (unspecified type of layer file) is available to plot the course of the Valatie Kill and can be obtained from Cornell University. Using this new laye r file GE suggested that only 1.4 miles of wetland frontage is present when using the NWI maps as a refe rence for wetland locations. GE stated that the actual course that the Valatie Kill takes runs along the southeastern boundary of the wetland that is immediately upstream from sampling point DLL-SED 03/03A instead of bisecting the wetland. GE suggested that this change results in approximately 1330 linear feet of wetland frontage that should not be counted because only one stream bank is actually in the wetland. Similarly, GE stated that another wetland immediately downstream of the Tributary T11A stream confluence with the Valatie Kill should only have 150 linear feet of wetland frontage in place of 375 feet used in the HRS documentation record.

GE also stated that most if not all of the wetla nd acreage in question appears to be associated with small lateral tributaries of the Valatie Kill, such that the wetlands could not have been impacted by any contamination that might exist in the Va latie Kill, and that 35 acres (83%) of the total wetland area identified by EPA fronting on the Kill are associated with two large wetlands on either side of a sampling location (DLL-SED03/03A). GE asserted that the complex shapes of these two large wetlands indicate that a substan tial portion of these wetlands is not associated with the Valatie Kill, but rather with small tributaries. GE concluded that because these wetlands are upstream of the Valatie Kill, it is unlikely that any significant portion of them could have been affected by PCB contamination from the Landfill.

Response : The wetland frontage measured in the HRS documentation record at the time of proposal was consistent with the HRS and was sufficiently accura te to assign the appropriate HRS factor value for wetland frontage.

The instructions for determin ing wetland frontage are contained in HRS Section 4.1.4.3, Environmental Threat Targets, in subsection 4.1.4.3.1.2, Level II concentrations :

For those sensitive environments that are wetlands, assign an additional value from Table 4-24.

Estimate the total length of wetlands along th e hazardous substance migration path (that is, wetland frontage) in the area of Level II concentrations and assign a value from table 4-24 based on this total length. Estimate this length as specified in section 4.1.4.3.1.1, except: for an isolated wetland or for a wetla nd where the probable point of entry to the surface water is in the wetland, use the perimeter of that portion of the wetland subject to Level II (not Level I) concentrations as the length.

70Dewey Loeffel Landfill NPL Listing Support Document March 2011

Table 4–24—Wetlands Rating Values for Surface Water Migration Pathway

Total length of wetlands a (miles) Assigned

value

Less than 0.1 0

0.1 to 1 25

Greater than 1 to 2 50

Greater than 2 to 3 75

Greater than 3 to 4 100

Greater than 4 to 8 150

Greater than 8 to 12 250

Greater than 12 to 16 350

Greater than 16 to 20 450

Greater than 20 500

a Wetlands as defined in 40 CFR section 230.3.

HRS Section 4.1.4.3.1.1, Level I concentrations , states:

For rivers, use the length of the wetlands contiguous to the in-water segment of the hazardous substance migration path (that is, wetland frontage).

Page 30 of the HRS documentation record at proposal stated:

There are 1.7 miles of wetland frontage located within the zone of contamination [Figure 2; Ref. 25, p. 1; 38, pp. 1-2]. Therefore, Actual Contamination is documented, and the target sensitive environment is evaluated for Actual Contamination. There are no media-specific benchmarks for sediment, so the target sensitive environment is subject to Level II concentrations [Ref . 1, pp. 51592-51593, 51624-51625].

Regarding GE’s assertion that wetland frontage has b een improperly measured and should only measure
1.4 miles instead of the 1.7 miles used in the HRS documentation record at proposal, even if the GE measurement were used, it would not change the HRS scoring. As Table 4-24 (above) states, total length of wetlands in the category of Greater than 1 to 2 (mil es) results in an assigned value of 50 for either the
1.4 miles or the 1.7 miles measurement.

Furthermore, as discussed in section 3.13.2 (Wetla nd Delineation and Wetland Fr ontage) of this support document, in response to GE’s comments, an up-to-d ate wetland delineation has been completed. This redelineation resulted in 2.83 miles of wetland frontage being identified along tributary T11A and the
Valatie Kill. The onsite wetland redelineation was performed by a certified wetland scientist using the United States Army Corps of Engineers (USACE) techniques and definitions. EPA has accordingly updated the Figure 2 map in the HRS documentation record at promulgation.

In the redelineation, the certified wetland scientist travel ed the extent of Tributary T11A and the Valatie
Kill between the PPE and Nassau Lake to document wetlands on the basis of hydrophytic vegetation, hydric soils, and wetland hydrology in accordance wi th the techniques outlined by the United States Army Corps of Engineers (USACE). GPS coordinate s were recorded (using a Trimble receiver with sub meter accuracy) at upstream and downstream points along each stream bank and used to plot the location

71Dewey Loeffel Landfill NPL Listing Support Document March 2011

of the wetlands on the new wetlands map in Figure 2 of the HRS documentation record at promulgation; Figure 2 includes the updated stream path of the Valatie Kill.

The major difference between the delineation that u sed NWI maps to estimate wetland frontage and the new delineation that was completed by a wetland expert is that the wetland expe rt found the Valatie Kill actually splits into three branches for a portion of th e stream reach and then rejoins between Tributary
T11A and Nassau Lake. All three of the branches are fronted by eligible wetlands, and including them in
the measurement results in 2.83 miles of wetland fr ontage that are measured along tributary T11A and Valatie Kill (see page 4 and Figure 1 of Reference 15 of the HRS documentation record at proposal, Wetlands Measurement Trip Report, of this support document).

In addition, during this survey, the wetland scientist only included those wetlands that were directly along the streams and greater than 10 feet in width; an overly conservative technique. Wetlands do not need to be 10 feet wide to be eligible for HRS scoring, and therefore more wetland frontage is likely present at the
Site.

Thus, this new study provides further support for the original HRS wetland frontage evaluation. Although the path of tributary T11A and Valatie Kill may be slightly diffe rent than the path in Figure 2 of the HRS documentation record at proposal, the site scor e did not decrease as a result of this re-evaluation. As shown in HRS Table 4-24, as quoted in section 3.13.2 (Wetland Delineation and Wetland Frontage) of this support document, wetland frontage greater than 1 mile receives no less than a score of 50 under the sensitive environments threat. In fact, this new delineation results in a wetland score of 75 as 2.83 miles falls in the greater than 2 to 3 miles category in Table 4-24.

Furthermore, if the frontage measurement does not include the frontage on all three branches and instead only one branch is included in the frontage measurem ent, then the frontage measurement would be 1.85 miles, which according to HRS Table 2-24 would be assigned the same wetland factor value of 50 as assigned at proposal.

Regarding the small lateral tributaries, frontage in these tributaries was not included in the wetlands frontage measurement used in the HRS evaluation.

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.

3.13.4 Consideration of Removal

Comment : GE mentioned throughout its comments that it has completed removal actions on two separate portions of the stream leading to Nassau Lake. GE stated that by completing these removal actions, the state has released GE from any further clean-up liabilities except under very limited circumstances that are not present in this situation. GE asserted that the two remediated areas, including Tributary T11A and Area 28 of the Valatie Kill, should not be part of the measured wetland frontage, and they should not be responsible for further clean-up actions.

Response : The HRS does not have a mechanism to acc ount for removal actions in determining wetland frontage if the removal actions are only within part of a zone of contamination between observed release sample locations. However, prior removal activiti es in Tributary T11A and Area 28 along the Valatie Kill have not removed these stream sections from the migration path of hazardous chemicals. Although local PCB concentrations have decreased, the potentia l for wetland contamination has not been eliminated from PCBs migrating from upstream of these areas and it is correct to include these sections in the

72Dewey Loeffel Landfill NPL Listing Support Document March 2011

wetland frontage measurement. However, eliminating these sections from the wetland frontage measurement would only decrease the frontage value by 0.19 miles and would not change the site score.

HRS Section 4.1.1.2, Target distance limit , states:

If a target is located, partially or wholly, either at or between the probably point of entry and any sampling point that meets the criteri a for an observed release to the watershed or at a point that meets the criteria for an observed release by direct observation, evaluate that target as subject to actual contamination,...

Page 30 of the HRS documentation record at proposal stated:

There are 1.7 miles of wetland frontage located within the zone of contamination [Figure 2; Ref. 25, p. 1; 38, pp. 1-2].

GE’s assertion that a portion of the wetland frontage c ounted may be located in a segment of the stream that has already been subject to remedial actions and therefore should not be counted is incorrect. According to the HRS, the zone of contamination extends from the PPE to either the most distant sample point downstream that meets observed release criteria or for 15 miles, whichever is greater. These
removal actions have not eliminated the downstr eam observed releases and these areas are within 15 miles of the PPE. Wetland frontage in these rem oval areas has not been removed from the hazardous substance migration path and is correctly included in the total wetland frontage measurements.

However, even if these segments were not included in the wetland frontage calculations, 2.64 miles of wetland frontage would still be present along the Valatie Kill, and the environmental threat-targets factor category value would not change. A table of all possible wetland frontage calculations is presented below. Even using the most conservative measurements, the wetland frontage does not change the site score. According to HRS Table 4-24, the Site receives at a minimum 50 points from wetland frontage, and 75 points if more than 2 miles of wetland frontage are counted. This has no effect on the pathway score or the site score as the Site scored 50 points for wetla nd frontage at proposal and the pathway reached the maximum score of 100.0. A revised wetland factor value of 75 points would not change the pathway score because it is already at the maximum.

Table 3: Wetland Frontage – Potential Scoring Scenarios

Scoring
scenarios: Tributary T11A and
Valatie Kill as Measured by the Wetland Scientist Valatie Kill stream divergence - Measuring

only one of the three paths for wetland frontage Not including prior
removal action areas along Tributary T11A or
the Valatie Kill Scoring one path along the Valatie
Kill and no removal

areas

Wetland Frontage (Miles): 2.83 1.85 2.64 1.66

Regarding aspects of GE’s comments involving liabi lity, see section 3.8 (Liability/Responsibility for Cleanup) of this support document.

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.

73Dewey Loeffel Landfill NPL Listing Support Document March 2011

3.13.5 Actually Contaminated Wetlands

Comment : GE contended that EPA had counted wetland fr ontage even when the wetlands were not in the
zone of contamination for the Site. It first asserte d that as discussed previously in its comments there were no observed releases in the Mead Road Pond area, Tributary T11A, or the Valatie Kill, therefore
there could be no zone of contamina tion for wetlands to be within.

GE then asserted that even if EPA’s conclusions w ith respect to the observed releases were correct, the wetland frontage within the zone of contamination w ould be significantly less than that calculated by EPA. GE stated that the wetland with the largest fr ontage is between two sampling points that EPA did not identify as observed release samples, and as such this wetland does not fall within a zone of
contamination and should not have been used in the scor ing. GE also claimed that four of the other five wetlands were between sampling points of which EPA had concluded only one was an observed release.

GE said its conclusions were “buttressed by the fact that EPA has collected no samples from any of the
‘wetlands’ or from their interface with the Western Drai nage to determine if the ‘wetlands’ have been or could be impacted by PCBs in sediments.”

Response : The identification of actually contaminated (L evel II) wetlands was correct at proposal. While the wetland frontage has been revised and rescored based on a reevaluation, as explained in sections 3.13.2 (Wetland Delineation and Wetla nd Frontage) and 3.13.3 (Measure ment of Wetland Frontage) of this support document, this redelineation has not resulted in a change in the zone of contamination or the
identification of Level II wetlands. As established in section 3.11.1 (Observed Release to Valatie Kill: Continuity of the Observed Release) of this support document, observed releases in the Mead Road Pond area, Tributary T11A, and the Valatie Kill were all co rrectly established consistent with the HRS at the time of proposal.

HRS Section 4.1.1.1, Definition of hazardous substance migr ation path for overland/flood migration

component , states:

The hazardous substance migration path includes both the overland segment and the inwater segment that hazardous substances would take as they migrate away from the sources at the site: ... Begin the in-water segme nt at this probably point of entry. For rivers, continue the in-water segment in the direction of flow (including any tidal flows) for the distance established by the target distance limit (see section 4.1.1.2)

HRS Section 4.1.1.2, Target Distance Limit, states:

If a target is located, partially or wholly, eith er at or between the probable point of entry and any sampling point that meets the criteri a for an observed release to the watershed or at a point that meets the criteria for an observed release by direct observation, evaluate that target as subject to actual contamination,...

As directed in HRS Section 4.1.4.3.1.2, Level II concentrations , Level II contamination is established in HRS Section 2.5, Targets , where it states that if the hazardous substance does not exceed the
environmental benchmark then consider the location to be subject to Level II concentrations for that pathway.

Page 18 of the HRS documentation record at proposal stated:

74Dewey Loeffel Landfill NPL Listing Support Document March 2011

75 An observed release by chemical analys is is documented along the surface water migration pathway downstream of the Dewe y Loeffel Landfill facility, between sample
location DLL-SED12 in the former Mead Road Pond and sample location DLLSED34A in Nassau Lake, approximately 3.4 miles downstream [Figure 2].

Observed releases were correctly identified as discussed in section 3.11.1 (Observed Release to Valatie Kill: Continuity of the Observed Release) of this support document. Removal actions have not removed
all the releases of PCBs between the PPE for the Site and the furthest downstream observed release location. The HRS as quoted above specifies that any target located between the probable point of entry and any sampling point downstream that meets th e observed release criteria is subject to actual contamination. According to the HRS, all of the wetland frontage located on tributary T11A and Valatie Kill between the PPE and sample DLL-SED34A on Figur e 2 in the HRS documentation record is subject
to actual contamination.

This comment results in no change to the HRS score and no change in the decision to place the Site on the

NPL.



## 4. Conclusion

The original HRS score for this site was 50.00. Based on the above responses to public comments,
revisions have been made to the HRS documentation record at promulgation, but the site score remains unchanged. The final scores for the Dewey Loeffel Landfill site are:

Ground Water: NS
Surface Water: 100.00 Soil Exposure: NS Air Pathway: NS

HRS Score: 50.00