47482 Federal Register / Vol. 75, No. 151 / Friday, August 6, 2010 / Rules and Regulations 

39324 (July 18, 2007)). That principle 

applies to the mepiquat objection 

because, as explained below, even if 

EPA retains the 10X children’s safety it 

would not change EPA’s safety 

determination. Thus, NRDC’s objection 

to the removal of the children’s safety 

factor, even if upheld, would not 

support the relief it requested - ‘‘that 

EPA refrain from establishing the new 

tolerances for . . .mepiquat . . . until the 

pesticide tolerances have been assessed 

and determined to be safe[,] consistent 

with the requirements of the FQPA.’’ 

(Ref. 6 at 22). 

An EPA decision to retain the 10X 

children’s safety factor has the effect of 

decreasing the ‘‘safe dose’’ or RfD/PAD 

by a factor of 10. Thus, if prior to 

application of the 10X children’s safety 

factor, the level of exposure from a 

particular pesticide constituted 5 

percent of the RfD/PAD, after 

application of the safety factor the level 

of exposure to the pesticide would rise 

by a factor of 10 to 50 percent of the 

RfD/PAD. Similarly, a pesticide which 

had an exposure level at 50 percent of 

the RfD/PAD before applying the 10X 

children’s safety factor, would have an 

exposure level of 500 percent of the 

RfD/PAD after application of the factor. 

Only in the latter case, would retention 

of the children’s safety factor raise a 

safety concern. Thus, for pesticides with 

sufficiently low risks, the decision on 

retention or removal of the children’s 

safety factor is not outcomedeterminative as to EPA’s safety finding. 

(71 FR 43906, 43916-43917 (August 2, 

2006)). 

Mepiquat is one of those low risk 

pesticides. As EPA noted in the 

challenged tolerance document, acute 

exposure to mepiquat from residues in 

food equaled 1.5 percent of the acute 

RfD/PAD and acute exposure to 

mepiquat in water was an infinitesimal. 

(67 FR at 3115; 65 FR 1790, 1793 

(January 12, 2000) (acute exposure to 

mepiquat in drinking water is 0.031 

percent of the allowable amount – i.e. 

the acute DWLOC was 6,000 ppb and 

estimated acute exposure level was 1.9 

ppb); see Unit III.B.1.d. (explaining how 

allowable amounts of pesticide residues 

in drinking water were calculated)). 

Similarly, chronic exposure to mepiquat 

from residues in food equaled 0.3 

percent of the chronic RfD/PAD and 

chronic exposure to mepiquat in water 

was also infinitesimal. (67 FR at 3115; 

65 FR at 1794 (chronic exposure to 

mepiquat in drinking water is 0.018 

percent of the allowable amount — i.e. 

the chronic DWLOC was 6,000 ppb and 

the estimated chronic exposure level 

was 1.1 ppb)). Retention of the 10X 

children’s safety would raise the 

percentage exposure to approximately 

15 percent of the acute RfD/PAD and 3 

percent of the chronic RfD/PAD. 

Because these exposure levels would 

still be well below the applicable RfD/ 

PADs, they would not change EPA’s 

determination that the petitioned-for 

mepiquat tolerances are safe. 

Accordingly, because NRDC’s objection 

to removal of the children’s safety factor 

does not justify its request for EPA to 

refrain from establishing the mepiquat 

tolerances, it is denied. 

VIII. Regulatory Assessment 

Requirements 

As indicated previously, this action 

announces the Agency’s final order 

regarding objections filed under section 

408 of FFDCA. The FFDCA specifically 

directs that objections be resolved by 

‘‘order,’’ and thus this action is an 

adjudication and not a rule. (21 U.S.C. 

346a(g)(2)(C)). The regulatory 

assessment requirements imposed on 

rulemaking do not, therefore, apply to 

this action. 

IX. Submission to Congress and the 

Comptroller General 

The Congressional Review Act, (5 

U.S.C. 801 et seq.), as added by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996, does not apply 

because this action is not a rule for 

purposes of 5 U.S.C. 804(3). 

X. References 

1. USEPA, A User’s Guide to 

Available EPA Information on Assessing 

Exposure to Pesticides in Food (June 21, 

2000). 

2. Office of Pesticide Programs, 

USEPA, Office of Pesticide Programs’ 

Policy on the Determination of the 

Appropriate FQPA Safety Factor(s) For 

Use in the Tolerance Setting Process 

(February 28, 2002). 

3. Office of Pesticide Programs, 

USEPA, Standard Operating Procedures 

(SOPs) for Residential Exposure 

Assessments (Draft December 19, 1997). 

4. Office of Pesticide Programs, 

USEPA, ‘‘Estimating the Drinking Water 

Component of a Dietary Exposure 

Assessment’’ (November 2, 1999). 

5. Office of Prevention, Pesticides and 

Toxic Substances, USEPA, 

Memorandum from Brenda Tarplee to 

Margarita Collantes, ‘‘Mepiquat 

Choloride – Report of the FQPA Safety 

Factor Committee’’ (November 1, 1999). 

6. NRDC, Objections to the 

Establishment of Tolerances for 

Pesticide Chemical Residues: 

Imidacloprid, Mepiquat, Bifenazate, 

Zeta-cypermethrin, and Diflubenzuron 

Tolerances (filed March 19, 2002). 

7. NRDC, Objections to the 

Establishment of Tolerances for 

Pesticide Chemical Residues: 

Isoxadifen-ethyl, Acetamiprid, 

Propiconazole, Furilazole, Fenhexamid, 

and Fluazinam Tolerances (filed May 

20, 2002). 

8. Petitioners’ Brief, NCAP v. EPA, 

Case Nos. 75255, 76807 (9th Cir. March 

6, 2006). 

9. Letter from Kent E. Hanson, U.S. 

Department of Justice to Cathy 

Catterson, Clerk of the Court, United 

States Court of Appeals, Ninth Circuit, 

Notice of Supplemental Authority in 

Northwest Coalition for Alternatives to 

Pesticides v. EPA, Nos. 05-75255 & 05- 

76807 (May 25, 2007). 

10. Letter from Aaron Colangelo, U.S. 

Department of Justice to Cathy 

Catterson, Clerk of the Court, United 

States Court of Appeals, Ninth Circuit, 

Response to EPA’s Notice of 

Supplemental Authority in Northwest 

Coalition for Alternatives to Pesticides 

v. EPA, Nos. 05-75255 & 05-76807 (May 

29, 2007). 

List of Subjects in 40 CFR Part 180 

Environmental protection, 

Administrative practice and procedure, 

Agricultural commodities, Pesticides 

and pests, Reporting and recordkeeping 

requirements. 

Dated: July 27, 2010. 

Steven Bradbury, 

Director, Office of Pesticide Programs. 

[FR Doc. 2010–19431 Filed 8–5–10; 8:45 am] 

BILLING CODE 6560–50–S 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 300 

[EPA–HQ–SFUND–2000–0006; FRL–9185–4] 

National Oil and Hazardous Substance 

Pollution Contingency Plan; National 

Priorities List: Deletion of the Peter 

Cooper Corporation (Markhams) 

Superfund Site 

AGENCY: Environmental Protection 

Agency. 

ACTION: Direct final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA), Region 2 is publishing a 

direct final notice of deletion of the 

Peter Cooper Corporation (Markhams) 

Superfund Site (Markhams Site) located 

in the Town of Dayton, Cattaraugus 

County, New York from the National 

Priorities List (NPL). 

The NPL, promulgated pursuant to 

section 105 of the Comprehensive 

Environmental Response, 


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Compensation, and Liability Act 

(CERCLA) of 1980, as amended, is an 

appendix of the National Oil and 

Hazardous Substances Pollution 

Contingency Plan (NCP). This direct 

final deletion is being published by EPA 

with the concurrence of the State of 

New York, through the Department of 

Environmental Conservation (NYSDEC), 

because EPA has determined that all 

appropriate response actions under 

CERCLA, other than operation, 

maintenance, and five-year reviews, 

have been completed. However, this 

deletion does not preclude future 

actions under Superfund. 

DATES: This direct final rule will be 

effective September 20, 2010 unless 

EPA receives adverse comments by 

September 7, 2010. If adverse comments 

are received, EPA will publish a timely 

withdrawal of the direct final deletion 

in the Federal Register informing the 

public that the deletion will not take 

effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID no. EPA–HQ– 

SFUND–2000–0006, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

on-line instructions for submitting 

comments. 

• E-mail: henry.sherrel@epa.gov. 

• Fax: 212–637–3966. 

• Mail: Sherrel Henry, Remedial 

Project Manager, U.S. Environmental 

Protection Agency, Region 2, 290 

Broadway, 20th Floor, New York, New 

York 10007–1866 

• Hand delivery: Superfund Records 

Center, 290 Broadway, 18th Floor, New 

York, NY 10007–1866 (telephone: 212– 

637–4308). Such deliveries are only 

accepted during the Docket’s normal 

hours of operation (Monday to Friday 

from 9 a.m. to 5 p.m.) and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID no. EPA–HQ–SFUND–2000– 

0006. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket 

All documents in the docket are listed 

in the http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in the hard copy. Publicly 

available docket materials are available 

either electronically in http:// 

www.regulations.gov or in hard copy at: 

U.S. Environmental Protection Agency, 

Region 2, Superfund Records Center, 

290 Broadway, Room 1828, New 

York, New York 10007–1866. (212) 

637–4308. 

Hours: Monday through Friday: 9 a.m. 

through 5 p.m. 

or 

Town of Dayton, Town Building, 9100 

Route 62, South Dayton, New York 

14138. (716) 532–9449. 

Hours: Monday through Friday: 9 a.m. 

through 5 p.m. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Sherrel D. Henry, Remedial Project 

Manager, U.S. Environmental Protection 

Agency, Region 2, 290 Broadway, 20th 

Floor, NY, NY 10007–1866, (212) 637– 

4273, e-mail: henry.sherrel@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Introduction 

II. NPL Deletion Criteria 

III. Deletion Procedures 

IV. Basis for Site Deletion 

V. Deletion Action 

I. Introduction 

EPA Region 2 is publishing this direct 

final Notice of Deletion of the Peter 

Cooper Corporation (Markhams) 

Superfund Site (Markhams Site) from 

the NPL. The NPL constitutes Appendix 

B of 40 CFR part 300, which is the 

National Oil and Hazardous Substances 

Pollution Contingency Plan (NCP), 

which EPA promulgated pursuant to 

section 105 of the Comprehensive 

Environmental Response, Compensation 

and Liability Act (CERCLA) of 1980, as 

amended. EPA maintains the NPL as the 

list of sites that appear to present a 

significant risk to public health, welfare 

or the environment. Sites on the NPL 

may be the subject of remedial actions 

financed by the Hazardous Substance 

Superfund (Fund). As described in 

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

from the NPL remain eligible for Fundfinanced remedial actions if future 

conditions warrant such actions. 

Because EPA considers this action to 

be noncontroversial and routine, this 

action will be effective September 20, 

2010 unless EPA receives adverse 

comments by September 7, 2010. Along 

with this direct final Notice of Deletion, 

EPA is co-publishing a Notice of Intent 

to Delete in the ‘‘Proposed Rules’’ 

section of the Federal Register. If 

adverse comments are received within 

the 30-day public comment period on 

this deletion action, EPA will publish a 

timely withdrawal of this direct final 

Notice of Deletion before the effective 

date of the deletion, and the deletion 

will not take effect. EPA will, as 

appropriate, prepare a response to 

comments and continue with the 

deletion process on the basis of the 

Notice of Intent to Delete and the 

comments already received. There will 

be no additional opportunity to 

comment. 

Section II of this document explains 

the criteria for deleting sites from the 

NPL. Section III discusses procedures 

that EPA is using for this action. Section 

IV discusses the Markhams Site and 

demonstrates how it meets the deletion 

criteria. Section V discusses EPA’s 

action to delete the Site from the NPL 

unless adverse comments are received 

during the public comment period. 

II. NPL Deletion Criteria 

The NCP establishes the criteria that 

EPA uses to delete sites from the NPL. 

In accordance with 40 CFR 300.425(e), 

sites may be deleted from the NPL 

where no further response is 

appropriate. In making such a 

determination pursuant to 40 CFR 

300.425(e), EPA will consider, in 

consultation with the State, whether any 

of the following criteria have been met: 

i. Responsible parties or other persons 

have implemented all appropriate 

response actions required; 

ii. All appropriate Fund-financed 

response under CERCLA has been 

implemented, and no further response 


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action by responsible parties is 

appropriate; or 

iii. The remedial investigation has 

shown that the release poses no 

significant threat to public health or the 

environment and, therefore, the taking 

of remedial measures is not appropriate. 

Pursuant to CERCLA section 121(c) 

and the NCP, EPA conducts five-year 

reviews to ensure the continued 

protectiveness of remedial actions 

where hazardous substances, pollutants, 

or contaminants remain at a site above 

levels that allow for unlimited use and 

unrestricted exposure. EPA conducts 

such five-year reviews even if a site is 

deleted from the NPL. EPA may initiate 

further action to ensure continued 

protectiveness at a deleted site if new 

information becomes available that 

indicates it is appropriate. Whenever 

there is a significant release from a site 

deleted from the NPL, the deleted site 

may be restored to the NPL without 

application of the hazard ranking 

system. 

III. Deletion Procedures 

The following procedures apply to 

deletion of the Site: 

(1) EPA consulted with the State of 

New York prior to developing this direct 

final Notice of Deletion and the Notice 

of Intent to Delete co-published today in 

the ‘‘Proposed Rules’’ section of the 

Federal Register. 

(2) EPA has provided New York State 

30 working days for review of this 

notice and the parallel Notice of Intent 

to Delete prior to their publication 

today, and the State, through the 

NYSDEC, has concurred on the deletion 

of the Site from the NPL. 

(3) Concurrently with the publication 

of this direct final Notice of Deletion, a 

notice of the availability of the parallel 

Notice of Intent to Delete is being 

published in a major local newspaper, 

Dunkirk Observer. The newspaper 

notice announces the 30-day public 

comment period concerning the Notice 

of Intent to Delete the Site from the 

NPL. 

(4) The EPA placed copies of 

documents supporting the proposed 

deletion in the deletion docket and 

made these items available for public 

inspection and copying at the Site 

information repositories identified 

above. 

(5) If adverse comments are received 

within the 30-day public comment 

period on this deletion action, EPA will 

publish a timely notice of withdrawal of 

this direct final Notice of Deletion 

before its effective date and will prepare 

a response to comments and continue 

with the deletion process on the basis of 

the Notice of Intent to Delete and the 

comments already received. 

Deletion of a site from the NPL does 

not itself create, alter, or revoke any 

individual’s rights or obligations. 

Deletion of a site from the NPL does not 

in any way alter EPA’s right to take 

enforcement actions, as appropriate. 

The NPL is designed primarily for 

informational purposes and to assist 

EPA management. Section 300.425(e)(3) 

of the NCP states that the deletion of a 

site from the NPL does not preclude 

eligibility for future response actions, 

should future conditions warrant such 

actions. 

IV. Basis for Site Deletion 

The following information provides 

EPA’s rationale for deleting the Site 

from the NPL: 

Site Background and History 

The Markhams Site, EPA ID No. 

NYD980592547, is located off Bentley 

Road, in the Town of Dayton, 

Cattaraugus County, New York. The Site 

is approximately 103 acres in size and 

is bordered to the northwest by Bentley 

Road; to the northeast by a wooded 

property and farm field; to the southeast 

by a railroad right-of-way; and to the 

southwest by hardwood forest. Site 

access is restricted by a locked cable 

gate at the Bentley Road entrance. 

Surrounding property is rural, 

consisting of small farm fields, open 

meadow and forests. 

The Site was used for the disposal of 

wastes remaining after the 

manufacturing process from the Peter 

Cooper Corporation (PCC), a former 

animal glue and adhesives plant located 

in Gowanda, New York. Materials 

disposed at the Site were reported to 

consist of ‘‘cookhouse sludge,’’ residue 

pile material and vacuum filter sludge. 

Cookhouse sludge was so named 

because of a cooking cycle that occurred 

just prior to extraction of the glue. It was 

derived primarily from chrome-tanned 

hides obtained from tanneries and 

leather finishers. Residue pile material 

is described as air-dried cookhouse 

sludge, which was stabilized to a dry, 

granular form. Vacuum filter sludge 

reportedly was produced during 

dewatering of cookhouse sludge. The 

waste material has been shown to 

contain elevated levels of chromium, 

arsenic, zinc, and several organic 

compounds. 

PCC purchased the Site in 1955 and 

sold the Site, among other assets 

including its corporate name, in 1976 to 

a foreign company, Rousselot Gelatin 

Corporation, and its parent, Rousselot, 

S.A. of Paris, France. Rousellot Gelatin 

subsequently changed its name to the 

Peter Cooper Corporation. From 

approximately 1955 until September 

1971, it was reported that approximately 

9,600 tons of waste material from the 

Gowanda plant were placed at the Site 

over an approximately 15-acre area. 

In addition, PCC transferred 

approximately 38,600 additional tons of 

waste materials from the Gowanda plant 

to the Site pursuant to a New York State 

Supreme Court Order (8th J.D. 

Cattaraugus County) dated June 1971. 

PCC arranged the material into several 

waste piles approximately 20 feet high 

and covering a total of approximately 

seven acres, mostly in the original 

disposal area. 

The NYSDEC completed preliminary 

site investigations in 1983 and 1985 and 

identified the presence of arsenic, 

chromium and zinc in soil samples. 

At that time, the Site did not meet the 

New York State statutory definition for 

an inactive hazardous waste disposal 

site and NYSDEC could not use State 

funds to implement a remedial program. 

Consequently, the NYSDEC removed the 

Site from its Registry of Inactive 

Hazardous Waste Disposal Sites and 

transferred the Site to EPA for further 

evaluation. 

In 1993, EPA conducted a Site 

Sampling Inspection, which included 

the collection and analysis of soil and 

surface water samples from the Site. 

Chromium and arsenic were detected in 

soils above background concentrations 

within the waste piles. In 1999, EPA 

determined a Hazard Ranking System 

score for the Site so that it could be 

evaluated for potential listing on the 

National Priorities List (NPL). The Site 

was proposed to the NPL on April 23, 

1999 (64 FR 19968) and subsequently 

added on February 4, 2000 (65 FR 5435). 

Remedial Investigation and Feasibility 

Study (RI/FS) 

On September 29, 2000, EPA issued a 

Unilateral Administrative Order (UAO) 

to several potentially responsible parties 

(PRPs) to perform the RI/FS for the Site, 

subject to EPA oversight. The RI 

characterized the physical properties of 

the soil fill piles, soils around the 

perimeter of the fill piles (perimeter 

surface soils), native subsurface soils, 

wetland sediments, groundwater, and 

soil gas. 

The PRPs, through their consultants, 

Benchmark Environmental Engineering 

and Science PLLC (Benchmark) and 

Geomatrix Consultants, performed the 

Remedial Investigation (RI) from 

November 2000 to December 2003 and 

the final RI report was submitted to EPA 

in February 2005. The chemicals of 

concern (COCs) in site media included: 

arsenic, total chromium and hexavalent 


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chromium (metal COCs). The results of 

the RI suggest that low concentrations of 

metal COCs can leach from the waste 

fill. However, the data from native soil 

samples (non-waste fill) collected below 

the waste fill indicate that metals have 

not migrated substantially in native soil. 

Arsenic and total chromium 

concentration detected in the surface 

soil samples from the cover of the fill 

piles were above soil criteria. Soil 

testing below the fill piles identified 

decreasing concentrations of metal 

COCs with depth. Metal COCs were 

reported to exceed the NYS 

Groundwater Quality Standards and 

Guidance Values (GWQS/GVs) in one 

groundwater monitoring well MW–2S 

for arsenic, chromium, zinc and 

benzene (with benzene only slightly 

above the GWQS/GVs). In the RI report, 

difficulties in obtaining representative 

samples from monitoring well MW–2S 

were identified. Suggested possible 

explanations for these difficulties were 

the age of the well and construction 

materials. The report concluded that the 

groundwater analytical results collected 

from well MW–2S during the first and 

second sampling events might not be 

representative of Site groundwater. To 

address the limitations of the sampling 

from monitoring well MW–2S, the ROD 

required that any groundwater 

monitoring program at the Site include 

replacing well MW–2S and conducting 

analytical sampling for metals. 

Monitoring well MW–2S was 

decommissioned by the PRPs contractor 

in September 2008. MW–2S was found 

to be constructed of steel casing and 

screen, and was found to be visibly 

rusted/rotted on removal. MW–2S was 

replaced with a new PVC replacement 

well (MW–2SR). Site data indicate that 

transport of metal COCs and organic 

compounds is not considered significant 

at the Site. 

The RI concluded that all 

groundwater from the Site ultimately 

discharges to Wetland F before reaching 

the southwestern property boundary 

located more that 500 feet across the 

wetland. Site-related chemicals in the 

overburden groundwater are transported 

beneath the Site to the southwest in the 

direction of Wetland F. Water quality 

data indicate subsurface conditions are 

not conducive to transport of metal 

COCs. Although chromium was widely 

detected in soils across the Site, 

chromium concentrations were not 

elevated in groundwater (except in 

monitoring well MW–2S). Hexavalent 

chromium was detected at a low 

concentration in one of 18 samples 

analyzed: the detection was not 

confirmed in the second sampling 

event. The lack of hexavalent chromium 

in groundwater suggests conditions are 

not suitable for the oxidation of 

chromium (Cr∂3) to hexavalent 

chromium (Cr∂6). The slightly alkaline 

subsurface soil conditions and relatively 

low concentrations of manganese inhibit 

reactions that can produce hexavalent 

chromium. These results are indicative 

that the area of groundwater 

contamination is limited to a relatively 

small area, under the waste piles. 

Based on the results of the RI report 

a risk assessment was performed for the 

Site. The risk assessment determined 

that if infiltration of rainwater through 

the waste/fill material is not curtailed, 

then the quality of Site groundwater 

would continue to degrade, resulting in 

a potential future risk from groundwater 

ingestion. 

A Feasibility Study (FS) was then 

completed by the PRPs and submitted to 

EPA in August 2006. The FS Report 

identified and evaluated effective 

remedial alternatives for the Site, 

consistent with the guidelines presented 

in ‘‘Guidance for Conducting Remedial 

Investigations and Feasibility Studies 

under CERCLA.’’ The FS evaluated five 

alternatives, including no action, 

institutional controls, two containment 

alternatives and an excavation/off-site 

disposal remedies. The remedial 

alternatives were developed to satisfy 

the Remedial Action Objectives (RAO) 

for the Site: 

• Minimize or eliminate contaminant 

migration from contaminated soils to 

the groundwater. 

• Prevent direct contact with waste 

fill materials. 

• Mitigate erosion and migration of 

waste material from the exposed 

surface. 

Selected Remedy 

Based upon the results of the RI/FS, 

a Proposed Plan, and a Public Meeting, 

a Record of Decision (ROD) was signed 

in December 2006. The major 

components of the selected remedy 

included consolidation of various 

waste/fill piles into a single waste/fill 

area, followed by capping with a lowpermeability soil cover. Specifically, the 

ROD called for: 

• Consolidating the waste/fill piles 

into seven acres or less, followed by 

capping the consolidated wastes with a 

low permeability soil cover, consistent 

with the requirements of 6 NYCRR Part 

360, including seeding with a seed 

mixture to foster natural habitat, and 

replacement of waste piles moved 

during consolidation with native soil. 

• Imposing institutional controls in 

the form of an environmental easement/ 

restrictive covenant filed in the property 

records of Cattaraugus County that will 

at a minimum require: (a) Restricting 

activities on the Site that could 

compromise the integrity of the cap; and 

(b) restricting the use of groundwater as 

a source of potable or process water 

unless groundwater quality standards 

are met. 

• Developing a site management plan 

that provides for the proper 

management of all remedy components 

post-construction, such as institutional 

controls, and also includes: (a) 

Monitoring of groundwater to ensure 

that, following the soil consolidation 

and capping, the contamination is 

attenuating and groundwater quality 

continues to improve; (b) an inventory 

of any site use restrictions; (c) necessary 

provisions for ensuring the easement/ 

covenant remains in place and is 

effective; (d) provision for any operation 

and maintenance required of the 

components of the remedy; and (e) the 

owner/operator or entity responsible for 

maintenance of the Site to complete and 

submit periodic certifications 

concerning the status of the institutional 

and engineering controls for the Site. 

• Evaluating site conditions at least 

once every five years to ensure that the 

remedy continues to protect public 

health and the environment. 

Response Actions 

In 2008, EPA concluded Consent 

Decree negotiations with the PRPs 

related to the performance of the design 

and implementation of the remedy 

called for in the ROD. On February 19, 

2008, the Consent Decree was entered in 

United States District Court (approved 

by the Judge). On March 12, 2008 

Benchmark Environmental Engineering 

and Science PLLC (Benchmark) was 

approved as the supervising contractor 

to conduct the remedial design and 

construction work at the Site. 

The PRPs prepared a Remedial Design 

(RD) Report which was approved by 

EPA on July 3, 2008. The RD report 

outlined the following remedial 

construction measures: mobilization, 

site preparation, waste/fill consolidation 

and grading, and cover system (barrier 

layer material placement and 

compaction, topsoil and seeding, and 

passive gas venting). 

Zoladz Construction Company, Inc. 

was approved as the subcontractor for 

the Remedial Action (RA) and 

mobilized to the site on July 30, 2008. 

Site preparation work included clearing, 

grubbing and access improvements 

required for consolidation and covering 

work. Vegetation was stripped from the 

surface of the waste fill where cover 

soils were placed. 


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Waste/fill consolidation involved 

relocation of the various waste/fill piles 

located at various areas across the center 

of the site into a single area. Regraded 

and consolidated waste/fill were placed 

in maximum 12-inch lifts and 

compacted with rollers to 90% modified 

density. 

A total of approximately 40,000 cubic 

yards of waste/fill were consolidated 

and compacted. The waste fill 

consolidated area has a footprint of 

approximately four acres, with an 

average peak elevation (including cover 

soil) of 14 feet above surrounding grade. 

Landfill Cap Construction 

The final landfill cap meets the 

grading requirements of 6 NYCCR Part 

360–2.13(q)2(ii) which requires that the 

barrier component of the cap have a 

slope of no less than 4 percent to 

promote positive drainage and no more 

than 33 percent to minimize erosion. 

Cover System 

The final cover system was 

constructed to function with minimum 

maintenance, promote drainage, and 

minimize erosion. The cover system was 

designed with an 18-inch thick 

recompacted low permeability (less than 

1 × 10¥6 cm/sec) soil barrier layer and 

6 inches of topsoil. 

Barrier Layer 

Barrier soil was placed and 

compacted to provide a thickness of 18 

inches across the final waste surface. 

Barrier layer soil was compacted with 

rollers. Smooth drum rollers were used 

for temporary sealing of the lifts and for 

the stockpiled soils. 

Topsoil, Seeding and Tree Planting 

Following the final grading and 

compaction of the barrier layer, topsoil 

was placed to a depth of six inches 

(after placement and rolling). Topsoil 

was placed and graded to a smooth, 

even surface and was rolled and raked 

to remove ridges and fill in depressions, 

ruts and low spots. A conservation seed 

mixture was used to foster a natural 

habitat and minimize maintenance 

requirements. Fifty trees, including 25 

hardwood trees, 13 poplars and 12 birch 

trees were replanted at various locations 

across the Site to provide shelter for the 

wildlife and stimulate repopulation of 

the wooded areas outside of the 

consolidated area. 

Cleanup Goals 

Results of subsurface soil data 

indicated that metal COCs have not 

migrated into native soils beneath the 

waste fill piles. The consolidated waste 

piles were removed and underlying 

native soils were scraped and 

consolidated into one central area. As a 

result, contaminated-specific soil 

cleanup values for the Site were not 

developed. Groundwater is being 

monitored through post-remedial 

groundwater and surface water 

sampling. The primary objectives of the 

remedy are to reduce or eliminate any 

direct contact threat associated with the 

contaminated soils/fill and minimize or 

eliminate contaminant migration from 

contaminated soils to the groundwater. 

Operation and Maintenance 

The primary components at the Site to 

be monitored and maintained include 

groundwater and surface water quality, 

the waste/fill consolidation area cover 

system (the Cap), and gas vents. These 

goals are being met through the 

Operation, Maintenance and Monitoring 

(OM&M) Plan that describes personnel 

requirements, responsibilities, duties, 

and specifics post-construction 

sampling, analysis, and monitoring to be 

conducted to monitor the effectiveness 

of the remedy. 

The OM&M plan requires 

groundwater and surface water 

sampling to be conducted on a 

semiannual (spring and fall) basis for 

the first two years of monitoring; 

sampling may be reduced to annually if 

the data support the reduction. The 

semiannual samples were collected 

starting in June and December 2009. 

Results indicate that the cover system 

has minimized contaminant migration 

from contaminated soils to the 

groundwater. In addition, the total 

metals concentrations reported from 

both sampling events for the metal 

COCs arsenic, total chromium, and 

hexavalent chromium were 

nondetectable or below NYSDEC 

Groundwater Quality Standards and 

Guidance Values (GWQS/GVs). 

As per the OM&M plan, semiannual 

inspection of the landfill was conducted 

concurrently with the sampling 

described above. Inspection reports 

submitted on February 5, 2010, 

indicated that the final cover system 

appears to be in good condition, with 

the gas-venting system intact and 

operational. Semiannual inspections 

will continue as part of the OM&M plan. 

The ROD requires the implementation 

of institutional controls (ICs). The ICs 

involve filing of an Environmental 

Easement to restrict the use of on-site 

groundwater as a source of potable or 

process water (unless groundwater 

quality standards are met) and to restrict 

activities on the Site that could 

compromise the integrity of the cap. 

The owner of record of the Site, Peter 

Cooper Corporation (PCC) is an inactive 

Delaware Corporation. A search for 

potential corporate successors was 

conducted and none were found. The 

PRPs consistent with the obligation to 

use reasonable best efforts to implement 

the ICs: Commenced an action in 

Supreme Court, Cattaraugus County, 

against the Peter Cooper Corporation to 

secure an Order from the court to 

provide the PRPs with access to the Site 

and to give permission to implement the 

ICs by filing the Easement in the Office 

of the Clerk of Cattaraugus County. The 

Court granted legal access to the Site on 

July 1, 2008. The ICs were filed with the 

Clerk’s office on July 13, 2008 and a 

stamped copy was sent to EPA. 

Five-Year Review 

Hazardous substances remain at this 

Site above levels which would allow for 

unlimited use and unrestricted 

exposure. Pursuant to the 

Comprehensive Environmental 

Response, Compensation, and Liability 

Act, Section 121(c), EPA must conduct 

five-year reviews. The first Five-Year 

Review Report will be completed prior 

to July 2013, which is five years from 

the initiation of construction for the 

remedy. 

Community Involvement 

Public participation activities for this 

Site have been satisfied as required in 

CERCLA § 113(k) and Section 117. As 

part of the remedy selection process, the 

public was invited to comment on 

EPA’s proposed remedies. All other 

documents and information which EPA 

relied on or considered in 

recommending this deletion are 

available for the public to review at the 

information repositories identified 

above. 

Public participation activities for this 

Site have been satisfied as required in 

CERCLA Section 113(k), 42 U.S.C. 

9613(k), and Section 117, 42 U.S.C. 

9617. The ROD was subject to a public 

review process. All other documents 

and information that EPA relied on or 

considered in recommending this 

deletion are available for the public to 

review at the information repositories. 

Determination That the Site Meets the 

Criteria for Deletion in the NCP 

One of the three criteria for site 

deletion is when responsible parties or 

other persons have implemented all 

appropriate response actions required 

(40 CFR 300.425(e)(1)(I)). EPA, with the 

concurrence of the State of New York 

through NYSDEC, has determined that 

all required and appropriate response 

actions have been implemented by the 

responsible parties. 


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Federal Register / Vol. 75, No. 151 / Friday, August 6, 2010 / Rules and Regulations 47487 

V. Deletion Action 

The EPA, with concurrence of the 

State of New York, has determined that 

all appropriate responses under 

CERCLA have been completed, and that 

no further response actions, under 

CERCLA, other than O&M and five-year 

reviews, are necessary. Therefore, EPA 

is deleting the Site from the NPL. 

Because EPA considers this action to 

be noncontroversial and routine, EPA is 

taking it without prior publication. This 

action will be effective September 20, 

2010, unless EPA receives adverse 

comments by September 7, 2010. If 

adverse comments are received within 

the 30-day public comment period, EPA 

will publish a timely withdrawal of this 

direct final notice of deletion before the 

effective date of the deletion and it will 

not take effect, and EPA will prepare a 

response to comments and continue 

with the deletion process on the basis of 

the notice of intent to delete and the 

comments already received. There will 

be no additional opportunity to 

comment. 

List of Subjects in 40 CFR Part 300 

Environmental protection, Air 

pollution control, Chemicals, Hazardous 

waste, Hazardous substances, 

Intergovernmental relations, Penalties, 

Reporting and recordkeeping 

requirements, Superfund, Water 

pollution control, Water supply. 

Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 

9601–9657; E.O. 12777, 56 FR 54757, 3 CFR, 

1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 

3 CFR, 1987 Comp., p. 193. 

Dated: July 25, 2010. 

Judith A. Enck, 

Regional Administrator, Region 2. 

■ For the reasons set out in this 

document, 40 CFR part 300 is amended 

as follows: 

PART 300—[AMENDED] 

■ 1. The authority citation for part 300 

continues to read as follows: 

Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 

9601–9657; E.O. 12777, 56 FR 54757, 3 CFR, 

1991 Comp., p. 351; E.O. 12580, 52 FR 2923; 

3 CFR, 1987 Comp., p. 193. 

■ 2. Table 1 of Appendix B to part 300 

is amended by removing the entry for 

‘‘Peter Cooper Corporation (Markhams),’’ 

‘‘Winslow Township,’’ ‘‘NY.’’ 

[FR Doc. 2010–19417 Filed 8–5–10; 8:45 am] 

BILLING CODE 6560–50–P 

LEGAL SERVICES CORPORATION 

45 CFR Part 1611 

Income Level for Individuals Eligible 

for Assistance 

AGENCY: Legal Services Corporation. 

ACTION: Final rule. 

SUMMARY: The Legal Services 

Corporation (‘‘Corporation’’) is required 

by law to establish maximum income 

levels for individuals eligible for legal 

assistance. This document updates the 

specified income levels to reflect the 

annual amendments to the Federal 

Poverty Guidelines as issued by the 

Department of Health and Human 

Services. 

DATES: Effective Date: This rule is 

effective as of August 6, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Mattie Cohan, Senior Assistant General 

Counsel, Legal Services Corporation, 

3333 K St., NW., Washington, DC 20007; 

(202) 295–1624; mcohan@lsc.gov. 

SUPPLEMENTARY INFORMATION: Section 

1007(a)(2) of the Legal Services 

Corporation Act (‘‘Act’’), 42 U.S.C. 

2996f(a)(2), requires the Corporation to 

establish maximum income levels for 

individuals eligible for legal assistance, 

and the Act provides that other 

specified factors shall be taken into 

account along with income. 

Section 1611.3(c) of the Corporation’s 

regulations establishes a maximum 

income level equivalent to one hundred 

and twenty-five percent (125%) of the 

Federal Poverty Guidelines. Since 1982, 

the Department of Health and Human 

Services has been responsible for 

updating and issuing the Federal 

Poverty Guidelines. The figures for 2010 

set out below are equivalent to 125% of 

the current Federal Poverty Guidelines 

as published on August 3, 2010 (75 FR 

45628). 

In addition, LSC is publishing charts 

listing income levels that are 200% of 

the Federal Poverty Guidelines. These 

charts are for reference purposes only as 

an aid to grant recipients in assessing 

the financial eligibility of an applicant 

whose income is greater than 200% of 

the applicable Federal Poverty 

Guidelines amount, but less than 200% 

of the applicable Federal Poverty 

Guidelines amount (and who may be 

found to be financially eligible under 

duly adopted exceptions to the annual 

income ceiling in accordance with 

sections 1611.3, 1611.4 and 1611.5). 

LSC notes that these 2010 Income 

Guidelines are substantively unchanged 

from the 2009 Income Guidelines. This 

is because HHS’ Poverty Guidelines for 

the remainder of 2010 are unchanged 

from the 2009 Poverty Guidelines which 

have been in place since last year. 

List of Subjects in 45 CFR Part 1611 

Grant programs—Law, Legal services. 

■ For reasons set forth above, 45 CFR 

1611 is amended as follows: 

PART 1611—ELIGIBILITY 

■ 1. The authority citation for part 1611 

continues to read as follows: 

Authority: Secs. 1006(b)(1), 1007(a)(1) 

Legal Services Corporation Act of 1974, 42 

U.S.C. 2996e(b)(1), 2996f(a)(1), 2996f(a)(2). 

■ 2. Appendix A of part 1611 is revised 

to read as follows: 

Appendix A of Part 1611 

LEGAL SERVICES CORPORATION 2010 INCOME GUIDELINES * 

Size of household 

48 Contiguous 

states and the District of Columbia Alaska Hawaii 

1 ........................................................................................................................... $13,538 $16,913 $15,575 

2 ........................................................................................................................... 18,213 22,763 20,950 

3 ........................................................................................................................... 22,888 28,613 26,325 

4 ........................................................................................................................... 27,563 34,463 31,700 

5 ........................................................................................................................... 32,238 40,313 37,075 

6 ........................................................................................................................... 36,913 46,163 42,450 

7 ........................................................................................................................... 41,588 52,013 47,825 

8 ........................................................................................................................... 46,263 57,863 53,200 

For each additional member of the household in excess of 8, add: 4,675 5,850 5,375 

* The figures in this table represent 125% of the poverty guidelines by household size as determined by the Department of Health and Human 

Services. 


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