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 Remedy Decisions Branch 

Office of Superfund Remediation 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 ..............................................................................................................................16

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

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Dewey 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 releases of hazardous substances, pollutants, or 

contaminants throughout the United States. An original National Priorities List (NPL) was promulgated 

on September 8, 1983 (48 FR 40658). CERCLA requires that EPA update the list at least annually. 

This document provides responses to public comments 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. 

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Dewey Loeffel Landfill NPL Listing Support Document March 2011 

Introduction 

This document explains the rationale for adding the Dewey Loeffel Landfill site in Nassau, New York, to 

the National Priorities List (NPL) of uncontrolled hazardous waste sites and provides responses to public 

comments received on this site listing proposal. The EPA proposed this site to the NPL on March 4, 2010 

(75 FR 9843). This site is being 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 Environmental 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 Pollution 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 guidelines and procedures needed to respond under 

CERCLA to releases and threatened releases of hazardous 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 releases 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 the known releases or threatened releases of hazardous 

substances, pollutants, or contaminants throughout the 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 listing 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 also 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). 

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Dewey Loeffel Landfill NPL Listing Support Document March 2011 

Development of the NPL 

The primary purpose of the NPL is stated in the legislative history of CERCLA (Report of the Committee 

on Environment and Public Works, Senate Report No. 96-848, 96th Cong., 2d Sess. 60 [1980]). 

The priority list serves primarily informational 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 government actions will be 

necessary in order to do so, and these actions will be attended by all appropriate 

procedural safeguards. 

The NPL, therefore, is primarily an informational and management tool. The identification of a site for 

the NPL is intended primarily to guide EPA in 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. 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 priority sites among the known releases or threatened 

release of hazardous substances, pollutants, or contaminants, 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 certain 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 information from initial, limited investigations -- the 

preliminary assessment and site inspection -- to assess the 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 information 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 highest 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/feasibility 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, based 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; 

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Dewey 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 (Sgw) 

- drinking water 

• Surface Water Migration (Ssw) 

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 (Ss) 

- resident population 

- nearby population 

- sensitive environments 

• Air Migration (Sa) 

- population 

- sensitive environments 

After scores are calculated for one or more pathways according to prescribed guidelines, they are 

combined using the following root-mean-square equation 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 which 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 

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Dewey 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 site-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 effect 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 Pollution Contingency Plan, 40 C.F.R. 

Part 300 

NPL National Priorities List, Appendix B of the NCP 

NWI National Wetlands Inventory 

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Dewey 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 compound
Dewey Loeffel Landfill NPL Listing Support Document March 2011 

1. List of Commenters and Correspondence 

EPA-HQ-SFUND-2010-0075-0004 Correspondence, 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 Comment, 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 attachment, 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 Comment, 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, dated April 13, 2010, from Dawne M. Kelly, 

Assistant to Supervisor Dowds, Town of Schodack 

EPA-HQ-SFUND-2010-0075-0010.1 Comment attachment, dated April 13, 2010, from Dawne 

M. Kelly, Assistant to Supervisor Dowds, Town of 

Schodack 

EPA-HQ-SFUND-2010-0075-0011 Comment, dated 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 Comment, dated April 25, 2010, from Catherine 

Sullivan, Public Commenter 

EPA-HQ-SFUND-2010-0075-0014 Comment, 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 

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Dewey 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, dated 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, dated May 01, 2010, from Anonymous Public 

Commenter 

EPA-HQ-SFUND-2010-0075-0021 Comment, dated 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 May 03, 2010, from Virginia Martin, 

Public Commenter 

EPA-HQ-SFUND-2010-0075-0025 Comment, dated 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, dated 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 Comment, 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 

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Dewey 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 May 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, Northeast/Midwest Regions, General 

Electric Company (GE) 

EPA-HQ-SFUND-2010-0075-0038.1 Comment attachment, 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 attachment, 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, dated 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 attachment, dated May 03, 2010, from Robert 

F. Zimmerman, Public Commenter 

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Dewey Loeffel Landfill NPL Listing Support Document March 2011 

EPA-HQ-SFUND-2010-0075-0041 Comment, dated May 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 May 11, 2010, from anonymous public 

commenter 

2. Site Description 

The Dewey Loeffel Landfill site (the “Site”) as scored in the HRS documentation record at proposal 

includes an inactive hazardous waste disposal area (the “Landfill”) and the releases from it into the former 

Mead Road Pond, Tributary T11A, Valatie Kill, Valley Stream, Smith Pond, and Nassau Lake (Mead 

Road Pond is referred to as “former” due to remediation and excavation of Mead Road Pond in 2001). In 

addition, there is ground water contamination associated with 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, Loeffel Waste Oil Removal and Service Company 

(“Loeffel”) operated the disposal facility for industrial hazardous wastes, including solvents, waste oils, 

polychlorinated biphenyls (PCB), scrap materials, sludges, and solids. The General Electric Company 

(GE) reported that approximately 37,530 tons of waste materials from GE manufacturing facilities were 

deposited at the facility. New York State Department 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, Inc.) 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. There are two probable points of entry (PPE) to surface 

water from the Dewey Loeffel Landfill facility: the northwest drainage-way running toward the former 

Mead Road Pond (PPE1) and southeast drainage-way 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 Kill, and on into Nassau Lake. Observed releases of 

PCBs are documented based on chemical analysis of sediments 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 New York State Department of Health, which issued 

“Eat No Fish” advisories) in the watershed and within the zone of contamination related to the Site. 

In 1968, after several years of citizen complaints, 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 drainage channels to control runoff. From 1974 to 1980, Loeffel 

continued to use four 30,000-gallon aboveground storage tanks (ASTs) at the facility for waste oil 

transfer. 

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Dewey 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, approximately 500 surface drums and the 30,000-gallon 

ASTs were removed from the Loeffel property, and a NYSDEC-approved slurry wall, clay cap, and 

leachate collection system were installed. 

Since 1985, NYSDEC has overseen operation, maintenance, 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 contamination 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 been 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 ground 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 NYSDEC requesting that EPA list the Site on the NPL, 

in June and August 2009 EPA conducted 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 the environmental threat would be sufficient alone to 

qualify the Site for NPL listing. 

3. Summary of Comments 

Thirty-eight commenters submitted comments in support 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 Michael S. Giannotto, Counselors at Law, Goodwin 

Procter LLP on behalf of General Electric Company (hereafter 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 requirements. 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 future, the Site does not pose any significant dangers to 

human health or the environment. GE argued that EPA had “understated” these actions. GE made 

several claims in support of this argument, including that: PCB concentrations are mainly below cleanup 

levels; 2009 sediment samples show no threat; PCB levels 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 the Site is only the “first step” in the NPL process in 

which EPA determines whether the Site poses any dangers. GE declared that listing the Site will not 

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Dewey Loeffel Landfill NPL Listing Support Document March 2011 

serve the public interest because the Site has been investigated for 30 years and any dangers present have 

been assessed. GE added that indeed “far from being 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 currently planned additional 

remedial action while EPA investigates the Site 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 and designs and then paid the State to implement the 

design in return for the State’s release of GE from any further liability related to the Landfill and any offsite areas that are affected by contaminants that migrated from the Landfill after execution of the 

agreement. GE claimed that the State’s primary “reason 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, groundwater-related remedial actions within the landfill which 

are in fact the responsibility of the State and for 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 the only other contributors to the alleged problems at 

the Site. GE stated that GE paid Dewey Loeffel and various 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 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 pathway 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 observed 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 credible evidence that there were observed releases in 

the watershed at the Site. Regarding the observed releases to Valatie Kill, GE 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 concentration 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 collect and analyze sufficient background sediment samples 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 argued that factors used to determine the extent of the 

zones of contamination for human food chain fisheries 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 areas 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 documentation record at proposal was incorrect, and 

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Dewey 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 and 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 associated 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, have undergone removal actions and concluded that 

these two areas should not be part of the measured wetland 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 2010 proposed listing of 

the Dewey Loeffel Landfill site. After consideration 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 comments in support of placing the Dewey Loeffel 

Landfill site on the NPL. Three of these commenters supported the cleanup of the Site in general, 

regardless of the method. Three of these commenters stated 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 individuals with contaminated ground water supply 

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

• Swimmers in Nassau Lake without 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 significance. Several commenters indicated that they 

knew people continued to eat fish from the Lake, and stressed 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. 

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Dewey Loeffel Landfill NPL Listing Support Document March 2011 

Several commenters also commented on or suggested possible post listing activities including 

remediation alternatives. 

One commenter in support of listing expressed concern that listing could have economic effects on 

property values and investment potential and that attention should be given to residents and property 

owners. One commenter stated that remediation should improve property values. 

Response: The Agency has added the Dewey Loeffel Landfill 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 result 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 any perceived or actual negative fluctuations in property 

values or development opportunities that may result 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 “work plan” for community relations activities that EPA 

will conduct during the entire cleanup process. In developing 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 ground water contamination at the facility 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 necessary at the Site (see also section 3.4, Other Possible 

Pathway Threats, of this support document). 

3.2 Listing Requirements and Threat 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 consider “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 eligible 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 the 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, the potential for contamination of drinking water 

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Dewey Loeffel Landfill NPL Listing Support Document March 2011 

supplies, the potential for direct human contact, the potential 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 statute, 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 threat 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. § 300.425(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 the 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 eligible for placement on the NPL. As stated in the 

preamble of the proposed rule to list the Dewey Loeffel Landfill site, “[a]s a matter of Agency policy, 

those sites that score 28.50 or greater on the HRS are 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 scoring 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 comment 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, and should continue to be, a mechanism that 

allows it to make objective decisions on national priorities. Because the HRS is intended 

to be a screening system, the Agency has never 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 was 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 that 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 

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Dewey 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 Landfill 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 and Reauthorization Act 

SARA, which provides that the President (through EPA) shall revise and republish the NCP to include: 

. . . (8)(A) criteria for determining priorities 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 priorities under this paragraph shall be based upon 

relative risk or danger to public health or welfare 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 the possible population at risk, the hazard potential of 

the hazardous substances at facilities, the potential for 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 site 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 contemplated that States would calculate HRS scores for 

sites within their jurisdiction and submit them to EPA for inclusion on the NPL. With that context in 

mind, it is important to consider the full excerpt of the preamble language cited by GE: 

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Dewey Loeffel Landfill NPL Listing Support Document March 2011 

The HRS was developed pursuant to section 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 potential 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 was 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 considered 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 factors 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 “other appropriate factors” occurs on a case-by-case basis 

depending on the circumstances. 

Based on the HRS documentation record for the Dewey Loeffel Landfill site, and contrary to GE’s 

assertions, it is clear in this case that EPA considered 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 consumption, 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 HRS documentation record at proposal consider 

parameters such as toxicity, persistence, and bioaccumulation in the evaluation of hazardous 

substances at the Site for the human food chain threat and environmental threat, respectively. 

These parameters are used to generate a waste characteristics factor category value for each 

threat, which is subsequently factored into the 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 drinking 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 proposal identifies threats to the environment—

specifically, wetlands identified within the zone of contamination. These wetlands are considered 

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Dewey 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 Conservation (NYDEC) and its October 13, 2009, 

letter to EPA Region 2 (docket ID EPA-HQ-SFUND-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 CERCLA 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 Agency has considered are not sufficient to place the 

Dewey Loeffel Landfill site on the NPL. 

Regarding related comments made by GE asserting that the 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 releases 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 Dewey Loeffel Landfill site does not pose any dangers to 

human health or the environment to warrant its inclusion 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 eligible 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 relevant 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. 

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Dewey Loeffel Landfill NPL Listing Support Document March 2011 

3.3 Danger to Human Health 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 substantial 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 substantial 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 Site 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 further 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, Dewey Loeffel Landfill Site, March 4, 2010); see also 55 

FR 51532 (Final Rule, Hazard Ranking System, December 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 priorities based on the “relative risk or danger to 

public health or welfare, or the environment.” The criteria 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 there is no unacceptable risk posed by the remaining release 

from the Dewey Loeffel Landfill site. The HRS evaluation 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 Dewey 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 investigations performed to characterize the Site will 

be evaluated for completeness, further information will 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 potential 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 

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Dewey 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 protective 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 Landfill 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 NYSDEC 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 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, 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 State of New York, at this site, concluded the removal 

of PCBs with levels in that range was “neither necessary nor desirable for the protection of human health 

or the environment.” 

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Dewey 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 process, site-specific conditions, including determination of 

exposure scenarios specific to the location, are used to develop site-specific cleanup criteria1

 based on 

risk. Therefore the 1 ppm level for PCBs in sediments cited by GE as set by EPA for some other sites 

will not necessarily apply to the Dewey Loeffel Landfill site. 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. Additionally, 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 Environs Remedial Investigation Interim Phase I 

Report (added as Reference 48 to the HRS documentation 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 cleanup level were determined to be 1 ppm for the Site, 

cleanup may still be required to remediate the 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 collected, 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 same location had an Aroclor concentration of 

0.22 J ppm, thereby calling into question the August result. 

• Sample DLL-SED34A, collected in August 2009, had 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 moisture 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, and 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 based on site-specific data gathered during the remedial 

investigation/feasibility study (RI/FS).” 

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Dewey Loeffel Landfill NPL Listing Support Document March 2011 

GE concluded that any contamination in the sediments 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 the specific issues GE expressed for specific samples in 

which PCBs were detected above 1 ppm, 

• The difference in the PCB concentration found in samples DLL-SED07A and DLL-SED12A and 

that in a sample at the same location months earlier 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—especially 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 multiple observed releases to the lake does not 

negate the observed release identified 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 considered 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 fishery is not relevant. This sample is part of the 

body of evidence used to identify observed releases to the watershed, which was performed 

correctly as explained in section 3.11.1 (Observed 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. That a fishery is subject to actual contamination 

is established by the fact that a closed fishery 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 exhibits 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 risk to human health remains in the Western 

Drainage. In fact it is clear that such a risk remains via consumption of human food chain organisms as 

shown in the decision by the State not to lift the “don’t eat” restrictions in Valatie Kill and Nassau Lake 

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Dewey Loeffel Landfill NPL Listing Support Document March 2011 

(see section 3.3.7, PCB Levels in Fish Tissue Are Declining, 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 contaminant 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 Drainageway ‘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 scoring because doing so would not change the site score, 

but contamination migrating from this location does pose a threat to downstream surface waters.” GE 

claimed this statement is unsubstantiated 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 stating 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 observed releases to either one. 

Response: That the HRS documentation record at proposal does not present information to show 

significant contamination in the Southern Drainageway does not change the possibility that prior releases 

from the Landfill could follow this route to Valley Stream, 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 Threats) of this support document, the threat from the 

Southern Drainageway described in the HRS documentation record 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). 

Though there is no evidence of current significant contamination currently affecting the Southern 

Drainageway beyond the observed release established 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 release 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 

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Dewey Loeffel Landfill NPL Listing Support Document March 2011 

were not the types of Aroclors found in the observed releases to the Western Drainage. 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 contaminants 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 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 associated with impacts of contaminants (PCBs & 

VOCs) on both the shallow overburden and bedrock aquifers beneath the site which has 

been used for human 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). 

Pages 6-7 of the State’s ROD recommended several elements “to eliminate or mitigate all significant 

threats to human health and/or the environment.” 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 (added as Reference 49 to the HRS documentation record at 

promulgation) provides evidence of historical and current continued ground water contamination at the 

Site (see Tables 2-3 and 2-4 of that document on pages 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 tissue have decreased significantly since remediation 

of the Site began in the mid-1980s. It asserted that 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 Tributary T11A have declined since remediation activities 

were conducted in 2002-2003. 

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Dewey 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 these locations were recorded in 2009. 

• There has been a significant decrease 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 declined, PCBs continue to pose an ongoing risk. 

Clear evidence for this is provided by the fact that the NYSDOH “don’t eat” advisories remain in place 

for fish in Nassau Lake and Valatie Kill between County Rt. 18 and Nassau Lake (see pages 19 and 20 of 

the NYSDOH Chemicals in Sportfish and Game, 2010-2011 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 Fish2

, added as Reference 51 to the HRS documentation 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 otherwise come to be located. . . .” Source 1 (the 

Landfill) and its related releases of hazardous materials—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 documentation 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 documentation record at proposal, there is no liner 

associated with the landfill leachate control system, and the Landfill is therefore not absolutely contained 

for the purposes of the HRS evaluation (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 presentation came largely from the 2009 Letter from GE consultant 

ARCADIS to NYSDEC, Subject: Loeffel Site Environs Operable 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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Dewey Loeffel Landfill NPL Listing Support Document March 2011 

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 significant 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 contaminated 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 impacted by releases of PCB from the 

site.’” GE also claimed that, with the exception of samples 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 was 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 which 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 wall) 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 continue to take, numerous 

actions to prevent any significant risk to human health or the environment from any contaminants that 

may have migrated from the Site in ground water. 

Response: The scoring of one migration/exposure pathway is sufficient for the HRS evaluation and NPL 

listing of a site if the score from that evaluation qualifies 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 subsequently determine what response, if any, is 

appropriate. The discussions in the HRS documentation record indicating that the Southern 

Drainageway3

 and the ground water pathway are contaminated were presented in the HRS documentation 

record to notify the public that while the contamination 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 Superfund 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 based 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, Loeffel Site Environs Remedial 

Investigation (Reference 10 of the HRS documentation record at proposal). 

 

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

proposal. 

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Dewey Loeffel Landfill NPL Listing Support Document March 2011 

Southeast Drainage

The HRS documentation record at proposal states that the southeast drainage ditch “. . . is not used in the 

site scoring because doing so would not change the site score, but contamination migrating from this 

location does pose a threat to downstream surface waters” (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 proposal 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 ditch 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 associated with impacts of contaminants 

(PCBs & VOCs) on both the shallow overburden and bedrock aquifers beneath 

the site which has been used for human 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 extends 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, NYSDEC describes the shallow bedrock ground water as 

“significantly contaminated” and mentions that three residential 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 environment.” 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. 

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Dewey 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 (added as Reference 49 to the HRS documentation record at 

promulgation) provides evidence of historical and current continued ground water contamination at the 

Site (see Tables 2-3 and 2-4 of that document on pages 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 maintenance of residential treatment systems by a GE 

consultant continues. 

Differing Aroclor Mixtures

Regarding GE’s claim that different Aroclors were 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 documented by NYSDEC as being “contaminated above Class GA 

groundwater standards for numerous chemicals, including 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 suggesting 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 facility to underlying aquifers, and it 

is not misleading to give the public notice that, although 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). Further investigations are needed to determine the 

significance of this finding. 

It is not necessary for EPA to completely describe all conditions at a site at the time of listing. The HRS 

is a screening tool that uses limited resources to determine whether a site should be placed on the NPL for 

possible Superfund response. EPA must balance the need 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) (Eagle Picher II). EPA would like to 

investigate each possible site completely and thoroughly prior to evaluating a site for proposal to the 

NPL, but it must reconcile the need for certainty before action with the need for inexpensive, expeditious 

procedures to identify potentially hazardous sites. The courts have found EPA's approach to solving this 

conundrum to be “reasonable and fully in accord with Congressional 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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Dewey Loeffel Landfill NPL Listing Support Document March 2011 

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 dangers 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 propose 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 cannot excuse its failure to show 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 possible 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 orderly 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 Agency responds to identified threats by issuing a 

Record of Decision that documents the Agency’s selection 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 remediate the Site. While EPA was aware of the Site, 

New York State was addressing Site risks and unless and 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 

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Dewey Loeffel Landfill NPL Listing Support Document March 2011 

a risk to human health and the environment, it requested 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 dangers that do not exist.” GE commented that: 

EPA’s involvement at the Site now, more than 30 years after the Agency first became 

aware of the Site and after 30 years of investigations 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 conducting 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 [operable 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, that 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 ongoing 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 orderly 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 

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Dewey 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 action 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 mentioned above. PRPs may undertake the RI/FS and/or 

remedial design/remedial action stages under EPA supervision and pursuant to appropriate agreements 

with EPA (under enforcement authorities of CERCLA). The listing process does not encumber or 

preclude PRPs from entering into these agreements. The 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 Landfill 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 areas 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 health or the environment. GE declared that: 

[T]he State’s primary, if not only, reason 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, groundwaterrelated remedial actions within the landfill which 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 listing 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 

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Dewey Loeffel Landfill NPL Listing Support Document March 2011 

for the work in the first instance or through cost recovery,” and specifically, because “under the 

CERCLA statute, the EPA may be able to involve the responsible parties in the on-site 

remediation which the State of New York forfeited 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 (GE exhibit 30) in support of this statement. 

GE noted that EPA was not a party to the agreement and thus did not expressly grant GE a release from 

liability for these operations. GE claimed that: 

 

The evidence shows that the State has requested 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 released 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 design 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 the 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 (unlike 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 that it agreed to undertake with respect to 

different areas (relating to the landfill itself 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 mechanism 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 commitments 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 properly utilize funds provided to it by GE and potentially 

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Dewey 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 and had expended considerable effort. 

GE noted that a result would be that PRPs would be hesitant 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 NPL, despite the fact that 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 abused 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 evaluation 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 selected for use in the evaluation. 

EPA is not a party to the 1980 Administrative Consent Order (Seven Sites Agreement) with New York 

and nothing precludes EPA from engaging in the CERCLA 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 Agreement repeatedly in an attempt to characterize that 

agreement as the underlying basis for the current listing. 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 throughout 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 decision 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 the Dewey Loeffel Landfill site and may not consider 

the State of New York’s alleged conduct under the Seven 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 this 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 relevant 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 and score above 28.50 represents EPA’s determination 

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Dewey Loeffel Landfill NPL Listing Support Document March 2011 

that the Site may pose a threat to human health and the environment and warrants further investigation 

under CERCLA; this determination alone is sufficient 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 liability 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 various 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 improperly managed the landfill.” GE stated that the 

State of New York and the United States wastes, including 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 pathway 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 maintenance of the Site until at least 1991. 

GE asserted that the statement in the HRS documentation 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 noted 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 implies the NYSDEC has only engaged in monitoring and 

maintenance because it has installed recovery wells and recovers ground water and 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 that, in fact, despite payments by GE, Bendix, and 

Schenectady to fund long-term monitoring and maintenance, the State did not remove any leachate from 

the Site until 1991, even though the State knew the leachate 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 further 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 responsibly 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 list 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 for the NPL is intended primarily to guide EPA in 

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Dewey 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. Identification 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 any 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, September 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, and 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 into 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 alleged 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 Nassau 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 considers egregious errors in other parts of this 

support document, and has revised the HRS documentation 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) 

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Dewey 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 description of fishery status of Nassau Lake and 

parts of the Valatie Kill) 

• 3.4 Other Possible Pathway Threats (addresses the presence of PCB as a DNAPL and the extent 

of PCB contamination in ground water) 

• 3.3 Danger to Human Health or the 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 Summary section of the HRS documentation record at 

promulgation to clarify background information regarding 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 observed release to Nassau Lake. It challenged 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. GE concluded that EPA should have 

resampled Nassau Lake sediments. It also claimed 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 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. 

• 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 establish 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 manmade substance (PCBs) that is not generally 

ubiquitous in the environment, and there is no indication 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 document 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 

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Dewey 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 qualified 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 the HRS itself nor the HRS Guidance Manual authorizes 

the use of qualified data in HRS scoring, but that the 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, however, trump the HRS itself and allow use of 

qualified data where the HRS does not. As such, EPA’s use of the J-qualified data for 

SED34A [the sediment sample used to establish 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 HRS 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 limitations that can be the consequence of problems during 

the analysis or just limitations in the analytical procedure. For analytical results, particularly those 

developed within the EPA Contract Laboratory Program (CLP), various analytical data qualifiers and 

codes (collectively termed “qualifiers”) may be attached to certain data by the laboratory conducting the 

analysis. Data qualifiers also may be added, modified, 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 the 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. 

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Dewey 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 exceeds the detection limit, an observed release 

is established when the sample 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 reasonably quantified given the limits of detection 

for the methods of analysis and sample characteristics 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 can be distinguished from the normal random 

“noise” of an analytical instrument or method. 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 release 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 the use of analytical data in the 

scoring of a site using the HRS when there were possible 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 regarding 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 degree of risk,’” [emphasis in original] 

and that “[i]t would hardly make sense for the courts 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 appropriate response is to review the deficiencies on a 

‘case–by-case’ basis to determine their impact on the ‘usability of the data.’” 

Also in this decision, the Court repeated a statement 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] relevant data and . . . articulated a rational explanation for its action.’” 

[clarification in original] 

 32 
Dewey 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 CLP. 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 documentation” (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 field 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 the 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 accurate—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, biased low, unknown bias, and no bias. Unknown bias is 

assigned when the quality control problem indicates a possible problem in the analysis but is not specific 

enough to indicate a direction. No bias is assigned when the qualifier is assigned to identify that some 

issue was noted but the quantitation of the concentration 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 observed 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 above the MDL and the result is biased high but 

the release sample is 3 times higher, the background sample result as is can be used because 

even if the true value were lower than the 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: 

 33 
Dewey 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 background 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 the 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 generated 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 observed 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 adjusted 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 content. GE pointed out that the analytical result for 

this sample was 1.7 ppm for the Aroclor mix 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; that the analytical result for this sample was assigned 

a qualifier indicating that a minor issue arose during the 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. 

 34 
Dewey Loeffel Landfill NPL Listing Support Document March 2011 

The “J”4

 qualifier applied to the Aroclor-1260 result (to indicate 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 qualifier 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 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 exceeds the detection limit, an observed release 

is established when the sample measurement is 3 times or more above the background 

concentration limit. 

As discussed in this support document in section 3.10.1.1, Use of Qualified Data, under some 

circumstances EPA’s use of qualified data in the establishment 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 HRS 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 unknown 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 documentation record at proposal 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 include 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 affected 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 analyte 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). 

 35 
Dewey 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 has 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 sample 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 this 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 does 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 Environment, 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 . . . 

 36 
Dewey 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 from the Site was not directly challenged by GE (while 

in its assertion that PCBs are ubiquitous in the area 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 greater 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-Qualified Data): they have a significant increase in 

concentration, and at least part of the significant increase is due to a release from the Site. 

Seven other locations sampled in Nassau Lake exhibited Aroclor-1260 concentrations significantly above 

background. Table 1 below lists these sample results (see Figure 1 of this support document for sample 

locations). 

 37 
Dewey 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 

(μg/kg) 

SQL (μg/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 

μg/kg – micrograms per kilogram. Note: 1 ug/kg equals 1 part 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 the reported value). Section 3.10.4 (Observed Release 

to Nassau Lake: Background Similarity) of this support document explains that the background level of 

47 μg/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 concentration 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 significantly greater than background levels in the area. 

Furthermore, there is substantial historical evidence 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 report 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 concentrations 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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Closed Fishery ('Eat No Fish' advisory)

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STREAM

VALATIE

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TRIBUTARY T11

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See Inset

MEAD ROAD POND

Valatie Kill

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('Eat No Fish' advisory)

LYONS LAKE

DLL-SED27/27A

DLL-SED12/12A DLL-SED11/11A

DLL-SED10/10A

DLL-SED13/13A

DLL-SED26/26A

DLL-SED25/25A

DLL-SED24/24A

DLL-SED21/21A

DLL-SED20/20A

DLL-SED19/19A

DLL-SED14/14A

DLL-SED15/15A

DLL-SED16/16A

DLL-SED17/17A

DLL-SED04/04A

DLL-SED03/03A

DLL-SED02/02A

DLL-SED22/22A

DLL-SED23/23A (Dup)

DLL-SED43A

DLL-SED45A

DLL-SED05/05A

DLL-SED18/18A

DLL-SED01/01A

DLL-SED28A DLL-SED29A

DLL-SED30A

DLL-SED31A

DLL-SED32A

DLL-SED33A

DLL-SED34A

DLL-SED35A

DLL-SED36A

DLL-SED37A

DLL-SED38A

DLL-SED39A

DLL-SED40A

DLL-SED41A DLL-SED42A

DLL-SED44A

DLL-SED46A (Dup)

Freshwater Forested/Shrub 

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Freshwater 

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Freshwater Emergent &

Forested/Shrub Wetland

Freshwater Forested/Shrub 

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Freshwater Forested/Shrub 

Wetland

Freshwater Forested/Shrub 

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DRAWING NUMBER: FIGURE #: CLIENT NAME:

PROJECT:

LEGEND: TITLE:

PROJECT MANAGER:

DATE:

DRAWN BY:

REVIEWED BY:

S. Poultney

G. Gilliland

G. Gilliland

Figure 1

Site Layout and Sample Locations

Dewey Loeffel Landfill HRS

US EPA January 2011 08830 1

.

!(

!(

!(

10 0 10 5 Feet

DLL-SED08/08A

DLL-SED06/06A

DLL-SED07/07A

 (Dup)

DLL-SED09/09A

Source:

1. Rensselaer County 2' Resolution Natural Color Ortho-imagery. NYS 

 Cyber Security & Critical Infrastructure Coordination. 

 http://www.nysgis.state.ny.us/gateway/mg/2007/rensselaer/. 11/01/2007

2. Weston Solutions, Inc. Region 2 Site Assessment Team 2, Site Logbook, 

 SAT2.20113.119.001, May-August 2009.

3. EPA CLP Data Packages, Dewey Loeffel Landfill. June-September 2009.

4. U.S Department of the Interior, Fish and Wildlife Service, St. Petersburg, 

 FL. National Wetlands Inventory, http://www.nwi.fws.gov. Date unknown; 

 downloaded April 2009.

5. NY State Department of Health, Chemicals in Sportfish and Game, 2008 

 -2009 Health Advisories. May 2008.

6. Weston Solutions, Inc. Site Logbook, DCN #1131-4E-AHLF. July 2010.

Tributary T11A

#*1

#*2

750 0 750 1,500 375

Feet

SCALE:

P:\SAT2\Dewey_Loeffel_Landfill_HRS\MXD\0710_GPS_Locs\08830_DLL_Site_Layout.mxd

!( Sediment sample location with observed release concentration(s)

!( Sediment sample location that meets significant increase

!( Sediment sample location with detected Aroclor concentration(s)

!( Background sediment location

!(GBackground sediment location results rejected due to percent moisture

!( Sediment sample location with no detected Aroclors

(! PCB analysis not completed (broken bottle during shipment)

Wetland Frontage

Zone of contamination with mile marker

Mapped Wetlands Along the Zone of Contamination

#*1

Valatie Kill

SCALE:

See Map
Dewey 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 guidance 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 documented. Qualified data should always be 

carefully examined by the Regions to determine the reasons for qualification before use 

in HRS evaluation. Resampling and/or reanalysis may be warranted if qualified data only 

marginally document an observed release. Whenever 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 context 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 additional information, if necessary,” and cited to the 

HRS guidance manual at page 26. GE asserted that: 

In this case, additional sampling was plainly 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 data’ 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 documented quality to establish an observed release to the 

Lake, resampling of the Lake was neither necessary nor 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 was 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 Releases) of this support document, the observed release 

to Nassau Lake was established in the HRS documentation 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 this 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 release in Nassau Lake. 

 40 
Dewey 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 compared to background samples from other lakes, but that 

EPA had found all its background lake sediment samples to be unusable. Rather than taking additional 

samples, EPA arbitrarily used as background, sediment samples taken from local streams which had 

different physical characteristics. 

Specifically, GE stated that after finding that background 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 Lake release sample in several significant ways. 

GE asserted that: 

• The background samples were taken 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 documentation 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 explanations 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 locations, 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, EPA 

notes 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 because moisture content exceeded 90%. If Lyons 

Lake is a suitable background location, EPA’s first statement that “there were no lakes or 

springs immediately upgradient of the release sample locations” from which to take 

background samples is plainly inaccurate. 

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Dewey 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 has 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 the 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 (surface water, sediment, soil, etc.). Also, background 

samples must be sufficiently similar to release samples 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 samples 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 which 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, there is no evidence that the differences in these parameters cannot be the 

cause of the increase in contaminant levels found between the background level and the release 

concentration. Finally, since PCBs are manmade chemicals 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, since 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 substance(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 – for example, compare surface 

water samples to surface water background concentrations 

[emphasis added]. 

The HRS addresses background only in the context of identifying 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 media significantly above the background level. 

The similarity in the physical properties of background 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. 

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Dewey 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 Dewey Loeffel Landfill facility, between sample 

location DLL-SED12 in the former Mead Road 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 facility, including the former Mead Road Pond, 

Tributary T11A, Valatie Kill, Valley Stream, Smith Pond, and Nassau Lake . . . The 

validated analytical results indicated the continuing presence of PCBs at concentrations 

significantly above background in sediment samples from the former Mead Road Pond, 

Tributary T11A, Valatie Kill, and Nassau Lake . . . The June and August 2009 sediment 

data document the observed release by chemical analysis to the surface water pathway. 

The background sample locations were chosen because they are representative of 

upgradient locations unaffected by site contamination [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 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). The background and release 

samples were handled the same procedurally 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 data were reviewed independently by EPA 

according to “SOP HW-37 (Revision 1), USEPA Region II Data Validation 

SOP for Statement of Work SOM01.2” dated 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 percent 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 release samples presented in Tables 1 and 2 

were all collected from small streams, with the exception of sample DLLSED34A, which was collected from Nassau Lake in August 2009. EPA 

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Dewey Loeffel Landfill NPL Listing Support Document March 2011 

collected background lake samples 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 unusable 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 moisture 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 materials (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 background and release analytical results are 

considered to be comparable. 

The purpose of background samples is to establish a background 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 sample5

, the HRS does not have strict requirements on the 

degree of physical similarity of observed release and background samples—it specifies only that they 

should be the same “type of sample” and gives the example of comparing “surface 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 DLL-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 deemed appropriate background 

samples for comparison with Nassau Lake observed release sample DLL-SED34A. 

 

5

The HRS documentation record will be revised at promulgation to indicate that in the Nassau Lake observed release 

sample the percent moisture, TOC, and percent silt, clay, and colloids levels do not overlap with those of 

background samples. 

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Dewey Loeffel Landfill NPL Listing Support Document March 2011 

Additionally, based on a comparison of detected Aroclor 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, which shows weak correlation coefficients of 0.231 

for Aroclor-1260 vs. TOC and 0.237 for 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, and DLL-SED27A to establish an appropriate 

background level for observed release sample DLL-SED34A. 

Furthermore, as explained in section 3.11.3 (Observed Release to Valatie Kill: Validity of Background 

Samples) of this support document, PCBs are manmade chemicals and are not ubiquitous in the 

environment. The various local samples in which Aroclors were not detected demonstrate the nonubiquitous nature of PCBs in the area (see samples listed 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 background levels than in cases involving naturally 

occurring hazardous substances. That is, because PCBs 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 documentation 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, DLL-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 text is not in contradiction with itself. 

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Dewey 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 sediment background samples and sampled Lyons Lake; but, as 

quoted above, the HRS documentation record at proposal 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 from 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 the 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 promulgation (the correct value is 9.6%), and the reference 

cited to support this value has also been corrected 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 release 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 concentration 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, Tributary 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 comments 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 sampling 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. 

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Dewey 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). The “UJ” qualifiers were incorrectly applied and 

have no effect on the usability of the samples for establishing background. 

The following subsections address these specific assertions 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 Tributary 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 would 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 substance(s) has increased significantly 

above the background concentration for the site for that type of sample 

(see section 2.3). 

9

9For benthic samples, limit comparisons to essentially sessile 

organisms. 

o Some portion of the significant increase must 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 comparisons to similar types of samples and background 
Dewey Loeffel Landfill NPL Listing Support Document March 2011 

contaminated sediments with no identified 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 this 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 direct observation of the release of a hazardous 

substance into the media being evaluated (for example, surface water) or by chemical 

analysis of samples appropriate to the pathway 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 substance in the media significantly above the 

background level. Further, some portion of the 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 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 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 Dewey 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. 

Tables 1 and 2 on pages 20-23 of the HRS documentation 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 background 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 record at proposal attributed some portion of the significant increase 

of hazardous substances to the Site by explaining that: 

• Hazardous materials were dumped at the 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 PCBs 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 

 48 
Dewey 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 samples in that water body meet observed release criteria 

and the observed releases in the watershed downstream of PPE1 in the former Mead Road Pond, 

Tributary T11A, Valatie Kill (and the northern portion 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 observed 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” and GE did not understand what the “C” qualifier 

meant; there was another sample from the same location 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 determining observed releases exist. 

Response: The analytical data used to establish observed releases to Mead Road Pond, Tributary 11A, 

and Valatie Kill were of known and documented quality sufficient to show that the criteria for 

establishing an observed release were met. The following 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 samples, 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 documentation record at proposal, and listed the following 

comparison: 

 49 
Dewey 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 dynamic environment. Differences between these data 

do not demonstrate that there was any error in the analysis or in the identification of observed releases. 

(Regarding GE’s referral to no “unqualified PCB levels” being used for sediments, as explained in other 

subsections of section 3.11 (Observed Release to Valatie Kill) of this support 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 pathway 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 Lake. The existence of related samples (whether 

locationally or temporally proximate) containing different levels of hazardous substances does not negate 

the establishment of an observed release. Differing contaminant 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 rationale 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 heterogeneous 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 sufficiently 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. 

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Dewey 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 concentration 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 problems, 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 conditions for the use of qualified data to establish an 

observed release. However, the data must be sufficiently qualitatively accurate to show a significant 

increase between the contaminant concentrations in the 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 established 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 reasoned 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 further described below, the "C" qualifier in question does 

not in any way affect the accuracy or imply 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 spectrometry].” In the Organic Data Validation Report, 

page 13 of Reference 17 of the HRS documentation record at proposal, further explained that “Aroclor 

1260 was confirmed by GC/MS for sample B5Q42 [DLL-SED12A] .” 

Page 18 of the HRS documentation record 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 carried out as specified in the Statement of Work for 

Organics Analysis, SOM0.1.2 (Attachment 4 to this 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 the 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 

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Dewey Loeffel Landfill NPL Listing Support Document March 2011 

thus GC/MS confirmation was carried out. As part 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 other cases the qualifiers reflect data quality issues. 

As described on page B-48 of SOM01.2, “C” is a descriptive qualifier that is applied to an Aroclor result 

when the identification of an analyte has been confirmed by GC/MS. 

Thus, the “C” qualifier was correctly applied to the 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 confidence 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 Reference 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 HRS 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 sampling in the documentation record at proposal was 

correctly established. Of the three background samples, only two analyses (DLL-SED08 and DLLSED18) are qualified; and as discussed below, these qualifiers were determined to have been incorrectly 

applied and thus have no impact on the accuracy of the resulting contaminant concentrations. 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 regarding 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 watershed downstream of PPE1 in the former Mead Road 

Pond, Tributary T11A, Valatie Kill and the northern portion of Nassau Lake were correctly established, 

consistent with the HRS. 

The HRS does not identify requirements or define conditions 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 observed release is established with confidence. 

Upon further inspection of the laboratory data package for these samples (added as Reference 42 of the 

HRS documentation record at promulgation), it was determined 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 Reference 42 added to the HRS documentation record at 

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Dewey Loeffel Landfill NPL Listing Support Document March 2011 

promulgation, pp. 86, 94, 169, and 170, for the related 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 validation 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 acceptable 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 promulgation to not-detected (“U”-qualified) at their 

related SQLs of 42 μg/kg and 44 μg/kg. 

Even if the “UJ” qualified background samples (DLL-SED08 and DLL-SED18) were ignored, a third 

sample DLL-SED27 could still be used to appropriately set the background level for June 2009 samples. 

In this case, any loss of range of physical characteristics 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 observed releases that exceed this background level. 

Additionally, the background level of 47 μg/kg established by the August 2009 background samples—at 

the same locations and only two months later—supports 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 concentrations 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-SED11, 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 DLL-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 differing 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 additional 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 proposal 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. 

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Dewey 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 and 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 background level with which to compare a release sample, this is not the case 

when the hazardous substances being considered are widespread 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 collected additional background samples at other locations 

to demonstrate the true background level was below the 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 purposes 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 watershed 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 proposal 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 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). The background and release 

samples were handled the same procedurally 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 

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Dewey 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 data were reviewed independently by EPA 

according to “SOP HW-37 (Revision 1), USEPA Region II Data Validation 

SOP for Statement of Work SOM01.2” dated 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 percent moisture content exceeded 

90% [Ref. 15, pp. 7-8; 17, pp. 33-35, 41, 44, 73, 81, 84]. 

• Water Body Type: Background and release samples presented in Tables 1 and 2 

were all collected from small streams, with the exception of sample DLLSED34A, which was collected from Nassau Lake in August 2009. EPA 

collected background lake samples 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 unusable 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 moisture 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 materials (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 background 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. 

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Dewey 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 background 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 documentation 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 used 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 fish throughout New York, this does not prove that 

PCBs are ubiquitous in the local area investigated for 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 several 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 are 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 Chain Threat Targets 

3.12.1 Zone of Contamination 

Comment: Several GE comments identified that not all samples collected from the 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-observed 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 confluence 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 was 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. Determine 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 target distance limit either for 15 miles along 

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Dewey 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 water 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 section 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. However, 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 contamination if they are between the probable point of 

entry (PPE) and the furthest downstream sample that 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 watershed: food chain individual 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 bioaccumulation 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 substance for which the fishery has been 

closed 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. 

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Dewey Loeffel Landfill NPL Listing Support Document March 2011 

• A hazardous substance is present in a tissue 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 Observed Release) of this support document, the observed 

releases to the Mead Road Pond, Valatie Kill, and Tributary T11A were established correctly, consistent 

with the HRS. Regarding the zone of contamination, 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 documentation record at proposal presented background 

sample and observed release sample concentrations. Figure 2 on page 11 of the HRS documentation 

record at proposal showed the locations of background and observed release samples, as well as the extent 

of the zone of contamination—that portion of the watershed 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-SD34A), 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 contamination and consideration of human food chain targets 

within the zone of contamination to be subject to actual 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. (Specific 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 Wetlands, of this support document.) 

Also, even if GE’s remediation actions were taken 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 frontage associated with the removal area were 

subtracted from the revised total frontage evaluated 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. 

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Dewey 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 closed. 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 watershed: food chain individual 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 substance for which the fishery has been 

closed 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. 

Page 26 of the HRS documentation 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 site-related PCB contamination; New York 

State Department of Health (NYSDOH) has issued “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 advisories, 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 site [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 closed 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 the target fishery is subject to Level II 

concentrations [Ref. 1, pp. 51592-51593, 51620-51621]. 

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

• 3.12.2.1 Presence of a Closed Fishery 

• 3.12.2.2 Cause of Closure 

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Dewey 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 closed fishery, and that the HRS Guidance Manual 

deems a fishery closed if it is closed or restricted by a government entity and such closure prohibits 

fishing for commercial, recreational, or subsistence 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 aquatic 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 population value, HRS Section 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 production 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 between County Route 18 and Nassau Lake are 

fisheries that have been closed due to the site-related PCB contamination; New York 

State Department of Health (NYSDOH) has issued “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 advisories, 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 site [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 

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Dewey Loeffel Landfill NPL Listing Support Document March 2011 

substance for which the fishery has been closed 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 the target fishery is subject to Level II 

concentrations [Ref. 1, pp. 51592-51593, 51620-51621]. 

Pages 13 and 17 of Reference 23 (the NYSDOH fishing health advisories) of the HRS documentation 

record at proposal, cited to support the closed fishery, 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 fishery 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 has a general advisory “applicable to every freshwater location in 

the state” limiting the amount of fish that can be consumed 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 sampling 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 only 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 site 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 substance releases for which the fishery has been closed 

must be attributed only to the site, only that the hazardous 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). 

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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 factor in determining an observed release of PCBs. 

Thus the comment that some portion of PCBs potentially 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, the more specific NYSDOH “Eat none” advisories applied 

to the portions of Nassau Lake and Valatie Kill (listed in Reference 23 of the HRS documentation record 

at proposal) within the zone of contamination are appropriately 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 consumption advisory (‘eat none’) could be relaxed” and the 

fishery would no longer be considered closed. GE stated 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 conducted 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 could be relaxed to allow limited consumption of certain fish species. 

GE also asserted that there was “every expectation that the PCB levels in fish tissue will continue to 

decline as natural recovery continues.” GE further noted that the State itself has concluded that the PCB 

levels in Nassau Lake have declined and that fish 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 (an “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 watershed: food chain individual 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: 

• .... 

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Dewey Loeffel Landfill NPL Listing Support Document March 2011 

• The fishery is closed, and a hazardous substance for which the fishery has been 

closed 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. 

Page 26 of the HRS documentation record 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 documentation 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 subject 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 identified 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 established in the HRS documentation record at proposal. 

As documented in section 3.12.1 (Zone of Contamination) of this support document, EPA’s delineation of 

the zone of actual contamination was performed strictly 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 sample. 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 observed release downstream of these samples means that the 

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Dewey 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 section 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 contamination. 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 documentation 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 criteria. 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 consumption, 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 therefore 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 adequately 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 within 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 documented 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 information 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 Contamination, 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: 

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Dewey 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 substance for which the fishery has been 

closed 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. 

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 between County Route 18 and Nassau Lake are 

fisheries that have been closed due to the site-related PCB contamination; New York 

State Department of Health (NYSDOH) has issued “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 advisories, but stopped consumption due to 

the PCB contamination [Ref. 24, pp. 1-50]. 

Thus, the HRS documentation record at proposal established 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 contamination if . . . A hazardous substance having a 

bioaccumulation 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). 

Therefore, because an observed release was appropriately established (see section 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. (While 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 questionnaire, these responses were not used in scoring of 

the Site and furthermore do not contradict the identification of a closed fishery. 

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Dewey 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 Chain 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 scoring the Site were not adequately determined. GE 

stated that using National Wetlands Inventory (NWI) maps to establish the existence of wetlands and 

associated wetland frontage measurements is insufficient 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 evaluation, 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 and 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 the hazardous substance migration path (that 

is, wetland frontage) in the area of Level II concentrations and assign a value from table 

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Dewey 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 wetland 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 wetlandsa

(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 eligible (jurisdictional) wetlands for HRS purposes. 

Figure 2 of the HRS documentation record has been revised 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 

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Dewey 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 wetlands 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, and 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 Guidance suggests that if a site would not score above 

28.50 unless the wetland areas are scored, further 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 HRS 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 chain threat score alone is sufficient to generate a 

site score above 28.50 and qualify the Site for the 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 described 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 out that the identification of eligible wetlands was 

based on maps prepared as part of the National Wetlands Inventory (NWI) and that these maps have no 

jurisdictional significance. GE argued that determining 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 Manual 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 chain threat score decreasing to zero, the Site scoring 

above 28.50 depends on the wetland delineation. GE pointed out that no wetland expert has sitespecifically delineated the wetlands being evaluated. 

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Dewey 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 determination of the boundaries where wetlands are present, while the wetland 

frontage is the total length of those delineated wetlands 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 the 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 wetland 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 proposal 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 frontage 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 HRS 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 Inventory should be supplemented with additional 

documentation is incorrect because, as explained in section 3.12 (Human Food Chain Threat Targets) of 

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Dewey 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 consideration 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 wetlands, 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 according 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 layer file GE suggested that only 1.4 miles of wetland 

frontage is present when using the NWI maps as a reference 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-SED03/03A 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 wetland 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 Valatie 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 substantial 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 accurate to assign the appropriate HRS factor value for 

wetland frontage. 

The instructions for determining 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 the 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 wetland 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. 

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Dewey Loeffel Landfill NPL Listing Support Document March 2011 

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

Total length of wetlandsa

 (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 been 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 (miles) 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 (Wetland Delineation and Wetland Frontage) of this support 

document, in response to GE’s comments, an up-to-date 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 traveled 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 with the techniques outlined by the United States 

Army Corps of Engineers (USACE). GPS coordinates 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 

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Dewey 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 used NWI maps to estimate wetland frontage and the 

new delineation that was completed by a wetland expert is that the wetland expert found the Valatie Kill 

actually splits into three branches for a portion of the 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 frontage 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 different than the path in Figure 2 of 

the HRS documentation record at proposal, the site score 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 measurement, 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 account 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 activities 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 potential 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 

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Dewey 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 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,... 

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 counted 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 downstream observed releases and these areas are within 15 

miles of the PPE. Wetland frontage in these removal 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 wetland 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 liability, 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. 

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Dewey Loeffel Landfill NPL Listing Support Document March 2011 

3.13.5 Actually Contaminated Wetlands 

Comment: GE contended that EPA had counted wetland frontage even when the wetlands were not in the 

zone of contamination for the Site. It first asserted 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 contamination for wetlands to be within. 

GE then asserted that even if EPA’s conclusions with respect to the observed releases were correct, the 

wetland frontage within the zone of contamination would be significantly less than that calculated by 

EPA. GE stated that the wetland with the largest frontage 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 scoring. 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 Drainage to determine if the ‘wetlands’ have been or 

could be impacted by PCBs in sediments.” 

Response: The identification of actually contaminated (Level 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 Wetland Frontage) and 3.13.3 (Measurement 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 correctly established consistent with the HRS at the 

time of proposal. 

HRS Section 4.1.1.1, Definition of hazardous substance migration 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 segment 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, 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,... 

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: 

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Dewey Loeffel Landfill NPL Listing Support Document March 2011 

 75 

An observed release by chemical analysis is documented along the surface water 

migration pathway downstream of the Dewey 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 the 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 Figure 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