United States

Environmental Protection

Agency

1200 Pennsylvania Avenue, N.W. 

Washington, D.C. 20460 March 2012

Office of Solid Waste and Emergency Response

Support Document for the

Revised National Priorities List

Final Rule – Eighteenmile Creek
Support Document for the 

Revised National Priorities List 

Final Rule 

Eighteenmile Creek 

March 2012 

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
Eighteenmile Creek NPL Listing Support Document March 2012 

Table of Contents 

Table of Contents ............................................................................................................................................ ii 

Executive Summary ........................................................................................................................................ iii 

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

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

Development of the NPL ........................................................................................................................ iv 

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

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

Organization of this Document ............................................................................................................... vi 

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

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

2.0 Site Description .................................................................................................................................. 1 

3.0 Summary of Comments ..................................................................................................................... 3 

3.1 Support for Listing ....................................................................................................................... 3 

3.2 Request for Extension of Time for Comments/Delay of Listing Decision ................................... 4 

3.3 Extent of Site ............................................................................................................................... 4 

3.3.1 Definition of Site ................................................................................................................... 4 

3.3.2 Extent of Site at Proposal ..................................................................................................... 5 

3.4 Deferral to the Great Lakes Legacy Act (GLLA) Program .......................................................... 7 

3.5 Site Remediation ......................................................................................................................... 7 

3.6 Adequacy of Data ........................................................................................................................ 9 

3.7 Observed Release: Selection of Background Level ................................................................. 13 

4.0 Conclusion ....................................................................................................................................... 15

 

ii
Eighteenmile Creek NPL Listing Support Document March 2012 

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 the EPA update the list at least annually. 

This document provides responses to public comments received on the Eighteenmile Creek site, proposed on 

September 16, 2011 (76 FR 57702). This site is being added to the NPL based on an evaluation under the EPA’s 

Hazard Ranking System (HRS) in a final rule published in the Federal Register in March 2012. 

 

iii
Eighteenmile Creek NPL Listing Support Document March 2012 

Introduction 

This document explains the rationale for adding the Eighteenmile Creek site in Niagara County, New York, to the 

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

comments received on this site. The EPA proposed this site on September 16, 2011 (76 FR 57702). 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 2012. 

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, the 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 the 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), the 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. The EPA promulgated the HRS as Appendix A of the 

NCP (47 FR 31219, July 16, 1982). On December 14, 1990 (56 FR 51532), the 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 28.50 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 16, 

2011 (76 FR 57662). The Agency also has published a number of proposed rulemakings to add sites to the NPL. 

The most recent proposal was on September 16, 2011 (76 FR 57702). 

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]). 

iv
Eighteenmile Creek NPL Listing Support Document March 2012 

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 the 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 CERCLAfinanced remedial action(s), if any, may be appropriate. The NPL also serves to notify the public of sites the 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 the 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 the EPA to 

consider certain enumerated and other appropriate factors in doing so. Thus, as a matter of policy, the 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, the 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 the 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 the 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, the 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; 

• 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 

v
Eighteenmile Creek NPL Listing Support Document March 2012 

• 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; 

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

• The 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 the EPA responses to site-specific public comments received on the proposal of 

the Eighteenmile Creek site on September 16, 2011 (76 FR 57702). 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. 

vi
Eighteenmile Creek NPL Listing Support Document March 2012 

vii

Glossary 

The following acronyms and abbreviations are used throughout the text: 

Agency U.S. Environmental Protection Agency 

AOC Area of Concern 

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 

D.C. Cir U.S. Court of Appeals for the District of Columbia Circuit 

EPA U.S. Environmental Protection Agency, also USEPA 

FR Federal Register 

GLLA Great Lakes Legacy Act 

HAZCLEAN HAZCLEAN Environmental Consultants, Inc. 

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 

NCP National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. Part 300 

NPL National Priorities List, Appendix B of the NCP 

NYSBC New York State Barge Canal, or Erie Canal 

NYSDEC New York State Department of Environmental Conservation 

OSWER USEPA’s Office of Solid Waste and Emergency Response 

PCB Polychlorinated biphenyl 

RI Remedial Investigation 

RI/FS Remedial Investigation/Feasibility Study 

SARA Superfund Amendments and Reauthorization Act 

VanDeMark VanDeMark Chemical Inc. 
Eighteenmile Creek NPL Listing Support Document March 2012 

 

1.0 List of Commenters and Correspondence 

EPA-HQ-SFUND-2011-0650-0004 Correspondence dated June 30, 2011, from Joseph J. Martens, 

Commissioner, New York State Department of Environmental 

Conservation, requesting that the Eighteenmile Creek sediment site be 

nominated to the National Priorities List (NPL). 

EPA-HQ-SFUND-2011-0650-0005 Comment, not dated, from Victor DiGiacomo, Eighteenmile Creek 

Remedial Action Plan Coordinator, Niagara County Soil & Water 

Conservation District. 

EPA-HQ-SFUND-2011-0650-0006 Correspondence dated November 14, 2011, from David P. Flynn, 

Phillips Lytle LLP, on behalf of VanDeMark Chemical Inc. 

EPA-HQ-SFUND-2011-0650-0007 Correspondence dated November 10, 2011, from William R. Ross, 

Chairman, Niagara County Legislature. 

EPA-HQ-SFUND-2011-0650-0008 Correspondence dated November 29, 2011, from Douglas Ammon, Site 

Assessment and Remedy Decisions Branch, Office of Solid Waste and 

Emergency Response, U.S. Environmental Protection Agency (EPA). 

2.0 Site Description 

The Eighteenmile Creek site (the Site) in Niagara County, New York, is depicted in Figure 1 of this support 

document and, as described beginning on page 10 of the Site Summary section of the HRS documentation record 

at proposal, consists of contaminated sediments and water of Eighteenmile Creek above the contaminated 

sediments. The site as scored does not include the shoreline or areas beyond the shoreline. Eighteenmile Creek 

itself flows north from Lockport, New York, for approximately 15 miles and discharges to Lake Ontario in Olcott, 

New York. The zone of contamination for HRS scoring purposes, defined by contaminated sediment samples, 

extends for 12.71 miles, from the industrial and formerly industrial portion in Lockport immediately north of the 

New York State Barge Canal (NYSBC, or Erie Canal), known as the Eighteenmile Creek Corridor,1

 and 

identified as Reach 10 in Figure 1, to just south (i.e., upstream) of Burt Dam; Burt Dam is the northernmost 

landmark of the area identified as Reach 2 in Figure 1. Investigations have confirmed the presence of 

polychlorinated biphenyls (PCBs), metals and other contaminants throughout most of Eighteenmile Creek, but the 

specific sources of contamination in any particular part of the creek have not been definitively identified. 

The headwaters of Eighteenmile Creek originate southeast of Lockport in the Niagara County Park and Golf 

Course and flow aboveground to the west for approximately 1 mile, where they enter an underground pipe on the 

east side of Lockport. The creek then flows northwest under Lockport for approximately 3⁄4 mile, where it empties 

into a sluice located just southeast of the NYSBC. Water from the Canal is discharged through a spillway and 

flows east into the sluice. The headwaters of Eighteenmile Creek and NYSBC waters combine in the sluice and 

flow through a culvert under the NYSBC, exiting on the north side of the NYSBC and forming what is referred to 

as the East Branch of Eighteenmile Creek. The West Branch of Eighteenmile Creek originates in Upson Park on 

the north side of the NYSBC and also receives water from two underground flows from the south and southwest. 

The headwaters in the southeast portion of Lockport, as well as waters in the East and West Branches, were the 

locations of the most upstream background sediment samples collected and evaluated to document observed 

releases. 

1

 References 5 (pp. 10, 68 and 73) and 7 (pp. 16, 30 and 31) of the HRS documentation record at proposal describe and depict 

the location of the Eighteenmile Creek Corridor State Superfund site. 

1
!( 

 

 

 

 

 

 

 

 

 

 

P:/SAT2/Eighteenmile Creek HRS/MXD/2012_02_HRS/10830_ECHRS_Site_loc_2012_02.mxd 

!( !(

!(

!(

!(

!(

!(

!(

!(!(

!(

!(

!(

!(

!(

!(!(

!(

!(

!(

!(

!(

!( !(

!(

!(

!(

!(

!(

!(

!(

!(

!(

!(

!(

!(!(!(

!(!(

!(!(!(

!(

!(!(

!(

!(

!(

!(!(

!(!(

!(

!(!(

!(!(

!(

!(!(

!(!(

!(

!(!(

!(!(

!(

!(

!(!(!(

!(!(

!(

!(

!(!(!(!(!(!(

!(

!(!(

!(!(

!(

!(!(

!(!(

!(

!(

!(!(!(

!(!(

!(

!(

!(!(!(!(!(!(

!(

See Figure 2E 

See Figure 2D 

See Figure 2C 

See Figure 2B 

See Figure 2A 

Site Reference Point 

Burt Dam 

Burt Dam / Fisherman's Park Fishery 

Ide Road Fishery 

Newfane Dam 

Reach 1 

Mouth of Creek 

to Burt Dam 

Reach 2 

Burt Dam Impoundment 

Reach 3 

Confluence of Eighteenmile 

Creek with Upstream Extent 

of Burt Dam Impoundment 

Reach 4 

Bedrock/Gravel Channel 

Downstream of Newfane Dam 

Reach 5 

Newfane Dam 

Impoundment 

Reach 6 - Section 1 

Gravel Channel Upstream of 

Newfane Dam Impoundment 

Reach 6 - Section 2 

Gravel Channel Upstream of 

Newfane Dam Impoundment 

Reach 7 - Section 1 

Meandering Section with 

LWD* Downstream of 

Niagara Escarpment 

Reach 7 - Section 2 

Meandering Section with 

LWD* Downstream of 

Niagara Escarpment 

Reach 7 - Section 3 

Meandering Section with 

LWD* Downstream of 

Niagara Escarpment 

Reach 8 

Steep Gradient Run of 

the Escarpment 

Reach 9 

Short Run Downstream 

of Corridor Site 

Reach 10 

Eighteenmile Creek 

Corridor Site 

Farthest Downstream Sample: R2-001-V-Z3 

Farthest upstream sample: 18MC-L03W-S01-Z1 

CLIENT NAME: DRAWING NUMBER: FIGURE #:

PROJECT: 

SCALE: TITLE: 

PROJECT MANAGER: 

SCALE: 

DATE: 

DRAWN BY: 

Site Location Map REVIEWED BY:

Eighteenmile Creek HRS 

Niagara County, NY 

10830 1 

J. Lynes 

M. Capriglione 

G. Gilliland 

1" = 5,000' Eighteenmile Creek HRS 

EPA February 2012 ®

Note: 

1. The extent of Burt Dam / Fisherman's Park Fishery is 1,370' 

Sources: 

1. CH2M Hill, Ecology and Environment, Inc., Environmental Design International, Inc., 

and Teska Associates, Inc. Data Summary Report Site Characterization of the 

Eighteenmile Creek Area of Concern. Prepared for U.S. Environmental Protection 

Agency. March 2011. 

2. Ecology and Environment, Inc. Final Supplemental Remedial Investigation Report for

 the Eighteenmile Creek Corridor Site. Prepared for New York State Department of 

Environmental Conservation. July 2009. 

3. National Geographic TOPO! U.S. Geologic Survey (USGS). 7.5-Minute Series

 (Topographic) Quadrangles: Cambria, NY 1980; Lockport, NY 1980; Newfane, NY

 1978; and Wilson, NY 1979. 

Legend

!( Site Reference Point 

!( Background Sample Location 

!( Release Sample Location 

Zone of Contamination 

Reach Segment 

Reach Segment Endpoint 

Inset Box 

2,500 0 2,500 5,000 

Graphic Scale In Feet 

Pennsylvania 

New York 

Site Area 

"

Canada 

Lake Erie 

Lake Ontario 
Eighteenmile Creek NPL Listing Support Document March 2012 

The land within the Eighteenmile Creek watershed consists primarily of croplands and orchards, with residential, 

commercial and industrial areas located around Lockport, Newfane and Olcott Harbor. Fisherman’s Park, a public 

fishing area located within Eighteenmile Creek just downstream of Burt Dam, is a major fishing destination where 

species of fish including steelhead trout, salmon, walleye, perch and northern pike are caught and consumed. In 

addition, a consumption fishery is located on Eighteenmile Creek at Ide Road in Newfane, New York, within the 

zone of contamination. Eighteenmile Creek has been classified as an Area of Concern (AOC) by the EPA Great 

Lakes National Program Office (GLNPO), due to its natural resources value within the Lake Ontario watershed. 

Eighteenmile Creek and surrounding properties have been the focus of numerous investigations by the New York 

State Department of Environmental Conservation (NYSDEC) and the EPA since the late 1980s. The Eighteenmile 

Creek Corridor is the focus of a Remedial Investigation (RI) and Supplemental RI completed on behalf of the 

NYSDEC, which has produced two cleanup plans addressing the Eighteenmile Creek Corridor, but remedial 

actions have not been implemented. 

3.0 Summary of Comments 

Three commenters, Joseph J. Martens, Commissioner, New York State Department of Environmental 

Conservation, William R. Ross of the Niagara County Legislature and Victor DiGiacomo of the Niagara County 

Soil & Water Conservation District, wrote in favor of placing the Eighteenmile Creek site on the NPL. 

Additionally, the Niagara County Legislature requested that the proposed Eighteenmile Creek NPL site extend 

from the NYSBC to Lake Ontario. The Niagara County Legislature further requested that the EPA work closely 

with the NYSDEC during remediation, and, specifically, that the remediation take place in phases. After 

identifying the first phase, the Niagara County Legislature recommended that the first phase begin immediately. 

One commenter, David P. Flynn of Phillips Lytle LLP, on behalf of VanDeMark Chemical Inc. (VanDeMark), 

wrote to request a ninety (90) day extension of time in which to submit comments regarding the proposed listing 

of the Site on the NPL, and further requested that the EPA defer any listing decision pending receipt and 

consideration of comments from VanDeMark and others. VanDeMark provided three reasons to support its 

request: (1) the quantity of data to evaluate to prepare comments; (2) a recommendation to consider deferral of 

this site to the Great Lakes Legacy Act (GLLA) program; and (3) VanDeMark’s belief that, after preliminary 

review, the proposal to list the entire Eighteenmile Creek on the NPL was not adequately supported and was 

overbroad. VanDeMark provided these reasons as preliminary comments for consideration. 

Douglas Ammon, of the EPA’s Office of Solid Waste and Emergency Response, wrote that, after considering 

VanDeMark’s request for the extension of time to submit comments, the EPA denied the request. 

This support document is responding to comments submitted on the September 2011 proposed listing of the 

Eighteenmile Creek site. After consideration of these items, the HRS site score remains greater than 28.50, 

sufficient to qualify the Eighteenmile Creek site for the NPL, and the Site is being placed on the NPL. 

3.1 Support for Listing 

Comment: Three commenters, New York State Department of Environmental Conservation (NYSDEC), the 

Niagara County Legislature, and the Niagara County Soil & Water Conservation District wrote in favor of placing 

the Eighteenmile Creek site on the NPL. 

Response: The Eighteenmile Creek site has been added to the NPL. Listing makes a site eligible for remedial 

action funding under CERCLA, and at a different stage in the Superfund process, the site would be examined to 

determine the appropriate response action(s). Actual funding may not necessarily be undertaken in the precise 

order of HRS scores. In addition, upon more detailed investigation may not be necessary at all in some cases. 

The need for using Superfund monies for remedial activities is determined on a site-by-site basis, taking into 

account the NPL ranking, State priorities, further site investigation, other response alternatives and other factors 

3
Eighteenmile Creek NPL Listing Support Document March 2012 

as appropriate. Work at some sites will not stop to begin work at other, higher-scoring sites added to the NPL 

more recently. 

3.2 Request for Extension of Time for Comments/Delay of Listing Decision 

Comment: One commenter, VanDeMark, wrote to request a ninety (90) day extension of time in which to submit 

comments regarding the proposed listing of the site on the NPL, and further requested that the EPA delay any 

listing decision pending receipt and consideration of comments from VanDeMark and others. VanDeMark 

provided three reasons to support its request: (1) the quantity of data to evaluate to prepare comments; (2) a 

recommendation to consider deferral of this site to the Great Lakes Legacy Act (GLLA) program; and (3) 

VanDeMark’s belief that, after preliminary review, the proposal to list the entire Eighteenmile Creek on the NPL 

was not adequately supported and was overbroad. VanDeMark provided these reasons as preliminary comments 

for consideration. 

Response: The request for the extension was denied on November 29, 2011 (EPA-HQ-SFUND-2011-0650-0008). 

It is the EPA’s policy to extend the comment period only on a site-specific basis to address any procedural errors, 

such as incomplete or missing references in the public docket. This approach is consistent with the Administrative 

Procedure Act. No procedural errors were identified in this case. 

This approach for managing late comments is stated in the preamble of the proposed rule for the Eighteenmile 

Creek site (76 FR 57706, September 16, 2011): 

Generally, [the] EPA can guarantee only that it will consider those comments postmarked by the close of 

the formal comment period. [The] EPA has a policy of generally not delaying a final listing decision 

solely to accommodate consideration of late comments. 

3.3 Extent of Site 

Comment: The Niagara County Legislature requested that the proposed Eighteenmile Creek site extend from the 

NYSBC to Lake Ontario. VanDeMark requested that the EPA list only those portions of the Creek, specifically 

Reaches 1, 2, 5 and 10 of the Creek. 

Response: As explained in sections 3.3.1, Definition of Site, and 3.3.2, Extent of Site at Proposal, below, the Site 

was delineated consistent with the HRS definition of site as where the contamination has come to be located, and 

its boundaries, the boundaries of the PCB plume used in the HRS evaluation, were established consistent with 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. 

3.3.1 Definition of Site 

Comment: Both the Niagara County Legislature and VanDeMark requested clarification of the Site boundaries. 

Response: The Site is defined in the HRS documentation record at proposal consistent with the HRS definition of 

site. The Site includes only those portions of the Creek where contamination has come to be located. Section 1.1 

of the HRS (55 FR 51587, December 14, 1990) defines “site” as follows: 

Site: Area(s) where a hazardous substance has been deposited, stored, disposed, or placed, or has 

otherwise come to be located. Such areas may include multiple sources and may include the area 

between sources. 

As stated on page 10, Site Summary, of the HRS documentation record at proposal, “The Eighteenmile Creek site 

(CERCLIS ID No. NYN000206456) in Niagara County, New York consists of contaminated sediments and water 

4
Eighteenmile Creek NPL Listing Support Document March 2012 

of Eighteenmile Creek above the contaminated sediments. The site as scored presently does not include the 

shoreline or areas beyond the shoreline.” However, until the site investigation process has been completed and a 

remedial action (if any) selected, the EPA can neither estimate the extent of contamination at the Site, nor 

describe the ultimate dimensions of the Site. Even during a remedial action, the EPA may find that the 

contamination has spread further than previously estimated, and the site definition may be correspondingly 

expanded. See Washington State DOT v. EPA, 917 F.2d 1309, 1310 (D.C. Cir. 1990) (citing Eagle-Picher Indus. 

v. EPA, 822 F.2d 132, 144 (D.C. Cir. 1987)). 

On the same page, the HRS documentation record at proposal continues “[t]he zone of contamination, defined by 

samples documenting an observed release (18MC-L03W-S01-Z1 through R2-001-V-Z3) extends for 12.71 

miles.” These sample locations were depicted on Figures 2A and 2E, respectively, of the HRS documentation 

record at proposal and are depicted on Figure 1 of this support document. As explained on page 1 of the HRS 

documentation record at proposal, these areas are identified as part of the Site based on the screening information 

used to evaluate the Site for NPL listing. The focus of the listing is on the release, not precisely delineated 

boundaries. Generally, HRS scoring and the subsequent listing of a release merely represent the initial 

determination that a certain area may need to be addressed under CERCLA. Accordingly, the preliminary 

description of site boundaries at the time of scoring would be refined as more information is developed as to 

where the contamination has come to be located. 

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

3.3.2 Extent of Site at Proposal 

Comment: The Niagara County Legislature requested that the proposed Eighteenmile Creek NPL site extend 

from the NYSBC to Lake Ontario. VanDeMark requested that the EPA list only portions of the Creek, 

specifically Reaches 1, 2, 5 and 10. 

Response: The extent of the Eighteenmile Creek site for HRS scoring purposes is accurately depicted in the HRS 

documentation record at proposal as extending from the southern end of the Eighteenmile Creek Corridor (sample 

location 18MC-L03W-S01-Z1) to just south of (upstream of) Burt Dam (sample location R2-001-V-Z3), as 

depicted in Figure 1 of this support document. For HRS scoring purposes, the Site does not include the entire 

creek or all the reaches, but, as explained in section 3.3.1, Definition of Site, of this support document, the Site 

boundaries may be expanded during further investigation. 

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

states in part: “For sites that consist of contaminated sediments with no identified source, the hazardous substance 

migration path consists solely of the in-water segment specified in section 4.1.1.2.” HRS Section 4.1.1.2, Target 

distance limit, states in part: 

For sites consisting solely of contaminated sediments with no identified source, determine the 

target distance limit as follows: 

• If there is a clearly defined direction of flow for the surface water body (or bodies) containing 

the contaminated sediments, begin measuring the target distance limit at the point of observed 

sediment contamination that is farthest upstream (that is, at the location of the farthest 

available upstream sediment sample that meets the criteria for an observed release); extend 

the target distance limit either for 15 miles along the surface water or to the most distant 

downstream sample point that meets the criteria for an observed release to that watershed, 

whichever is greater. 

• If there is no clearly defined direction of flow, begin measuring the target distance limit at the 

center of the area of observed sediment contamination. Extend the target distance limit as an 

arc either for 15 miles along the surface water or to the most distant sample point that meets 

5
Eighteenmile Creek NPL Listing Support Document March 2012 

the criteria for an observed release to that watershed, whichever is greater. Determine the area 

of observed sediment contamination based on available samples that meet the criteria for an 

observed release. 

Note that the hazardous substance migration path for these contaminated sediment sites consists 

solely of the in-water segment defined by the target distance limit; there is no overland segment. 

As explained on page 35 of the HRS documentation record at proposal under the heading Attribution, sediments 

in Eighteenmile Creek are contaminated with PCBs, copper, lead, zinc and benzo(a)pyrene. Due to the presence 

of multiple possible sources, contamination in the Creek cannot be linked to any particular source location. 

Because the Eighteenmile Creek site consists of contaminated sediments with no identified source, the hazardous 

substance migration path documented on page 34 of the HRS documentation record at proposal consists solely of 

the in-water segment, which includes the sediments. 

Therefore, the extent of the Site for HRS purposes is defined by the location of the observed releases. Section 3.7, 

Observed Release: Selection of Background Level, of this support document provides a more detailed explanation 

of the HRS requirements for establishing an observed release as applicable to the Eighteenmile Creek site and 

how these requirements were met. 

As explained on page 35 of the HRS documentation record at proposal, in section 4.1.2.1.1, Observed Release, 

observed release by chemical analysis is documented in Eighteenmile Creek between just north of the NYSBC in 

Lockport (farthest upstream sample: 18MC-L03-S01-Z1) to just south of Burt Dam (farthest downstream sample: 

R2-001-V-Z3). In addition to those two sample locations, there are 73 other observed release samples taken from 

locations throughout the creek between these sample points. The 75 total observed release sample locations are 

shown in Figure 1 of this support document. Therefore, for HRS purposes, as indicated on page 10 in the Site 

Summary section of the HRS documentation record at proposal, the Site, as defined by samples documenting an 

observed release, extends from just north of the NYSBC in Lockport to just south of Burt Dam. 

Regarding the Niagara County Legislature’s request that the Site extend from the NYSBC to Lake Ontario, 

sampling evaluated for the HRS does not explicitly document that this further extent is contaminated for HRS 

scoring purposes. As depicted in Figure 1 of this support document, the Site for HRS scoring purposes begins 

near but downstream of the NYSBC. Furthermore, the Site also does not extend to Lake Ontario, but stops just 

south of Burt Dam. However, as discussed above in section 3.3.1, Definition of Site, of this support document, the 

Site definition may change if the EPA later finds that contamination has spread further than originally estimated. 

Regarding Reaches 1, 2, 5 and 10 of the Creek referred to by VanDeMark, Figure 1-2, Eighteenmile Creek AOC 

and Investigation Areas, in Data Summary Report Site Characterization of the Eighteenmile Creek Area of 

Concern (Reference 9 of the HRS documentation record at proposal), depicts 10 reaches delineated in a GLNPO 

investigation. For HRS purposes, the Site does not include all of these reaches, but as explained in this support 

document, the Site boundaries may expand upon further study. 

The reach boundaries, adapted from Reference 9 to the HRS documentation record at proposal, Figure 1-2, are 

shown in Figure 1 of this support document. Reach 1 is the area from the mouth of the creek (at Lake Ontario) to 

Burt Dam. The Eighteenmile Creek site as evaluated does not extend through Reach 1 to Lake Ontario. Reach 2 is 

the Burt Dam Impoundment. Although the zone of contamination does not extend to Burt Dam, most of Reach 2 

is included in the zone of contamination. The Reference 9 map provides the following definitions, also included in 

Figure 1 of this support document, for the remainder of the reaches: 

• Reach 3: Confluence of Eighteenmile Creek with Upstream Extent of Burt Dam Impoundment 

• Reach 4: Bedrock/Gravel Channel Downstream of Newfane Dam 

• Reach 5: Newfane Dam Impoundment 

• Reach 6: Gravel Channel Upstream of Newfane Dam Impoundment 

• Reach 7: Meandering Section with Large Woody Debris Downstream of Niagara Escarpment 

6
Eighteenmile Creek NPL Listing Support Document March 2012 

• Reach 8: Steep Gradient Run of the Escarpment 

• Reach 9: Short Run Downstream of Corridor 

• Reach 10: Eighteenmile Creek Corridor 

Observed release samples are located in all Reaches except Reaches 3 and 8. There are 17 observed release 

sample locations in Reach 2, and 3 observed release sample locations in Reach 4 (Table 2 of the HRS 

documentation record at proposal). According to page 46 of Reference 9 to the HRS documentation record at 

proposal, PCBs were detected in all but two (R3-021-V and R3-023-V) of the Reach 3 sampling locations; Table 

4-2a, Summary of Results for Reach 3 Sediment Samples, of Reference 9 contains the PCB concentrations 

detected in the Reach 3 samples. 

During the study described in Reference 9 of the HRS documentation record at proposal, Reaches 8, 9 and 10 

were not sampled. During the 2007 sampling event described in Reference 7 of the HRS documentation record at 

proposal, only Reaches 10 and 9 (the Eighteenmile Creek Corridor and the short run downstream of the Corridor, 

respectively, on Figure 1 of this support document) were sampled. Reach 8 may have been sampled during other 

studies. 

All reaches are part of the same watershed evaluated using the HRS. Observed release has been documented in 75 

samples essentially throughout Eighteenmile Creek, from close to the most downstream portion of Reach 2 (i.e., 

just south of Burt Dam) to Reach 10 (the Eighteenmile Creek Corridor in Lockport). All reaches from Reach 2 

through Reach 10, not merely Reaches 2, 5 and 10, are at least partly included in the zone of contamination and, 

therefore, in the Eighteenmile Creek site 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. 

3.4 Deferral to the Great Lakes Legacy Act (GLLA) Program 

Comment: VanDeMark requested that the EPA consider options and opportunities available under the GLLA 

prior to making other decisions such as listing this site on the NPL. VanDeMark stated that “GLLA was created 

specifically to address contaminated sediments at Great Lakes Areas of Concern (AOC) such as 18 Mile Creek.” 

Response: There are no provisions under CERCLA, the Federal Water Pollution Control Act (of which the GLLA 

is a part), or any EPA policy or regulation that require the EPA to defer listing a Site or to even evaluate whether 

to defer listing a Site from the NPL to the GLLA Program. The Eighteenmile Creek site meets criteria sufficient 

for placement on the NPL, including State support of the listing decision.

Furthermore, as stated in section 3.5, Site Remediation, of this support document, the need for any response 

action under CERCLA, GLLA or any other program is determined at a different stage in 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. 

3.5 Site Remediation 

Comment: Both the Niagara County Legislature and VanDeMark provided recommendations on the approach to, 

timing of and funding for remedial action at the Eighteenmile Creek site. The Niagara County Legislature 

submitted several comments regarding remediation of the Eighteenmile Creek site, requesting that the EPA work 

closely with the NYSDEC and build on the “tremendous amount of work that has been completed to date.” 

Furthermore, the Niagara County Legislature requested that the remediation project be divided into phases in 

response to public concerns and the threat of direct contact exposures for neighboring residents. Finally, the 

Niagara County Legislature requested the EPA implement the NYSDEC records of decision issued for six 

7
Eighteenmile Creek NPL Listing Support Document March 2012 

parcels, identified as operable units, in the Eighteenmile Creek Corridor State Superfund site in Lockport as soon 

as possible. 2

VanDeMark stated that “it is VanDeMark’s understanding that the listing of 18 Mile Creek on the NPL would 

make it ineligible for funding through the Great Lakes Legacy Act (GLLA)” and “it does not appear that either 

NYSDEC or USEPA has adequately explored GLLA funding for 18 Mile Creek.” 

Response: Considerations regarding remedy selection, implementation and funding are not factors in the decision 

to list a site on the NPL; these decisions are not made at the listing stage. These actions are addressed during 

separate stages of the Superfund process. Listing of a site simply informs the public that the site poses sufficient 

threat to human health and the environment to warrant further investigation. It does not predetermine the response 

actions or establish any funding mechanisms. The Superfund process offers numerous opportunities for public 

participation at NPL sites, in addition to commenting on site listing proposals, which are available to the 

commenters and all of the public. 

Placement of a site on the NPL identifies for the States and the public those sites that appear to warrant remedial 

action (56 FR 35842, July 29, 1991). The evaluation or remedial investigation/feasibility study (RI/FS) stage of 

the Superfund process involves on-site testing to assess the nature and extent of the public health and 

environmental risks associated with the site and to determine what CERCLA-funded remedial actions, if any, may 

be appropriate. After a period of public comment, the Agency responds to those threats by issuing a Record of 

Decision, which selects the most appropriate alternative. The selected remedy is implemented during the remedial 

design/remedial action stage. Finally, the site may be deleted from the NPL when the Agency determines that no 

further response is appropriate. 

Regarding the Niagara County Legislature comments, including those regarding phasing the remediation and 

those requesting that the EPA work closely with the NYSDEC and build on the work that has been completed to 

date, information from all studies will be considered when the need for remediation and the mechanism for 

remediation, if any, is determined in other stages of the Superfund process. 

Regarding VanDeMark’s comment on NPL listing and eligibility for GLLA funding, NPL listing does not make a 

site ineligible for GLLA funding. According to the Implementation of the Great Lakes Legacy Act of 2002 Final 

Rule and Notice of Implementation Policy (71 FR 25506, May 1, 2006), if enforcement, regulatory or CERCLA 

response actions are pending, but no settlement has been reached: 

GLNPO will work and coordinate with the applicable enforcement or regulatory program to 

determine the appropriate project delineation and cost distribution between the Legacy Act and 

the other program. The appropriate GLLA share for conducting a project that meets the 

combined objectives of the enforcement program and the Great Lakes Water Quality 

Agreement will be determined through discussions with the applicable enforcement authority. 

The non-Federal sponsor at these sites will be required to contribute at least 50%. 

The GLLA continues that if a decision document, or a settlement agreement under another applicable State or 

Federal authority has been signed: 

GLNPO may use GLLA funding for the portions of these sites not addressed by the Superfund 

decision document or settlement agreement where enforcement or regulatory actions are not 

anticipated. GLLA may be used to provide betterments or enhancements to the required elements of 

the decision document to address the U.S. Government’s commitment under the Great Lakes Water 

Quality Agreement. 

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

 

2

 References 7 (p. 24) and 8 (pp. 12 and 17) of the HRS documentation record at proposal describe and depict the six parcels 

or operable units constituting the Eighteenmile Creek Corridor State Superfund site. 

8
Eighteenmile Creek NPL Listing Support Document March 2012 

3.6 Adequacy of Data 

Comment: VanDeMark expressed concern regarding the magnitude of data and documentation available 

concerning the Eighteenmile Creek site that have been generated for a decade or more, including information that 

was relied on for the proposed NPL listing. VanDeMark also stated that, “based upon a preliminary review of the 

data and analysis, VanDeMark believes that USEPA’s proposal to list all of 18 Mile Creek on the NPL is not 

adequately supported and is overbroad given the available information.” 

Response: The data used to support statements of fact in the HRS documentation record at proposal were of 

sufficient quantity and type to make a listing decision. The HRS is a screening model that uses limited resources 

to determine whether a site should be placed on the NPL for possible Superfund response. A subsequent stage of 

the Superfund process, the remedial investigation, characterizes conditions and hazards at the site more 

comprehensively. Balancing the need to fully characterize a site with the limited resources available to collect and 

analyze site data is critical. For this reason, new data are generally not sought as long as the site qualifies for 

listing. However, any additional data characterizing site conditions could provide useful information during the 

remedial investigation. Investigating each possible site completely and thoroughly prior to evaluating the site for 

proposal to the NPL would be the ideal, but the need for certainty before action must be reconciled with the need 

for inexpensive, expeditious procedures to identify potentially hazardous sites. 

All data that were relied upon for the proposed NPL listing were included in the HRS documentation record 

references at proposal; however, all studies would be considered in performing other stages of the Superfund 

process. The commenter did not question any of the data used or provide any additional data or information that 

might call into question data used to make the listing decision. 

Regarding the assertion that the listing decision is not adequately supported and is overbroad, the HRS at Section 

2.1.3, Common Evaluations, states the following: 

Evaluations common to all four HRS pathways include: 

• Characterizing sources. 

. . . . 

• Scoring likelihood of release (or likelihood of exposure) factor category. 

. . . . 

• Scoring waste characteristics factor category. 

. . . . 

• Scoring targets factor category. 

. . . . 

Furthermore, HRS Section 4.1.1.3, Evaluation of overland/flood migration component [of the Surface Water 

Migration Pathway], states the following: 

Evaluate the drinking water threat, human food chain threat, and environmental threat for each 

watershed for this component based on three factor categories: likelihood of release, waste 

characteristics, and targets. 

In characterizing the source, section 3.3.2, Extent of Site at Proposal, of this support document demonstrates how 

the HRS was applied to determine this site is a contaminated sediment site. The following subsections address the 

adequacy of the data used in supporting the three factor categories defined in the HRS as quoted above—

likelihood of release, waste characteristics and targets. 

9
Eighteenmile Creek NPL Listing Support Document March 2012 

Likelihood of Release

Likelihood of release for the Eighteenmile Creek site was correctly documented and determined consistent with 

the HRS. Likelihood of release was evaluated in two threats in the surface water migration pathway: human food 

chain threat and environmental threat, as directed by HRS Section 4.1.1.3, Evaluation of overland/flood migration 

component. 

HRS Sections 4.1.3.1, Human food chain threat-likelihood of release, and 4.1.4.1, Environmental threatlikelihood of release, instructs the evaluator to use the same likelihood of release factor category value for the 

human food chain threat and the environmental threat, as assigned for the watershed for the drinking water threat 

according to HRS Section 4.1.2.1.3, Calculation of drinking water threat-likelihood of release factor category 

value. HRS Section 4.1.2.1.3 states that if an observed release is established for the watershed, the observed 

release factor value of 550 is assigned as the likelihood of release factor category value. 

Page 35 of the HRS documentation record at proposal, in section 4.1.2.1.1, Observed Release, establishes the 

observed release by chemical analysis as documented in Eighteenmile Creek between the Eighteenmile Creek 

Corridor in Lockport, also known as Reach 10 (farthest upstream sample: 18MC-L03-S01-Z1), to just south of 

Burt Dam (farthest downstream sample: R2-001-V-Z3) shown on Figure 1 of this support document. 

Tables 1 and 2 of the HRS documentation record at proposal provide analytical data for a total of 75 observed 

release sediment samples (containing PCBs, benzo(a)pyrene, copper, lead and/or zinc) collected from 

Eighteenmile Creek essentially throughout this area from just north of the NYSBC in Lockport to just south of 

Burt Dam, as shown on Figure 1 of this support document. The specific sample locations and associated 

concentrations of the relevant hazardous substances are shown on Figures 2A through 2E of the HRS 

documentation record at proposal. 

Because an observed release for the watershed was established and documented (see section 3.7, Observed 

Release: Selection of Background Level, of this support document), the likelihood of release factor value was 

correctly assigned as 550. 

VanDeMark did not challenge any aspect of likelihood of release except background, which is addressed in 

section 3.7, Observed Release: Selection of Background Level, of this support document, and did not challenge 

that a release had occurred. 

Waste Characteristics

Waste characteristic HRS scoring values for the Eighteenmile Creek site were correctly documented and assigned 

consistent with the HRS. Waste characteristics were evaluated in two threats in the surface water pathway: human 

food chain threat and environmental threat, as directed by HRS Section 4.1.1.3 quoted above. Specific HRS 

requirements for waste characteristics under each threat are cited below by threat. 

Human Food Chain Threat Waste Characteristics 

The HRS at Section 4.1.3.2, Human food chain threat-waste characteristics, instructs the evaluator to “[e]valuate 

the waste characteristics factor category for each watershed based on two factors: 

toxicity/persistence/bioaccumulation and hazardous waste quantity.” 

Regarding toxicity/persistence/bioaccumulation, the HRS at Section 4.1.3.2.1, 

Toxicity/persistence/bioaccumulation, instructs the evaluator to “[e]valuate all those hazardous substances eligible 

to be evaluated for toxicity/persistence in the drinking water threat for the watershed (see section 4.1.2.2).” The 

HRS further instructs that for each hazardous substance, there should be a toxicity factor value, a persistence 

factor value, and a combined toxicity/persistence factor value assigned (see HRS Section 4.1.2.2.1, 

Toxicity/persistence). HRS Sections 4.1.3.2.1.1, Toxicity, and 4.1.3.2.1.2, Persistence, provide instructions on 

10
Eighteenmile Creek NPL Listing Support Document March 2012 

determining the toxicity and persistence, respectively. HRS Section 4.1.3.2.1.3, Bioaccumulation potential, 

provides instruction on assigning a bioaccumulation potential factor value to each hazardous substance. HRS 

Section 4.1.3.2.1.4, Calculation of toxicity / persistence / bioaccumulation factor value, directs the assignment of 

both the toxicity/persistence factor value and the toxicity/persistence/bioaccumulation factor value. 

Regarding hazardous waste quantity, HRS Section 4.1.3.2.2, Hazardous waste quantity, instructs the evaluator to 

“[a]ssign the same factor value for hazardous waste quantity for the watershed as would be assigned in section 

4.1.2.2.2 for the drinking water threat.” HRS Section 4.1.2.2.2, Hazardous waste quantity, of the surface water 

migration pathway-specific portion of the HRS, cites HRS Section 2.4.2, Hazardous waste quantity, of the 

Overview portion of the HRS, which instructs in part to evaluate source hazardous waste quantity using the 

following four measures in the following hierarchy: hazardous constituent quantity; hazardous wastestream 

quantity; volume; and area. 

HRS Section 4.1.3.2.3, Calculation of human food chain threat-targets factor category value, establishes the 

human food chain threat-waste characteristic factor value by multiplying together the toxicity/persistence factor 

value and the hazardous waste quantity factor value for the watershed and assigning the factor value from HRS 

Table 2-7. 

The HRS documentation record at proposal, on page 40 identifies the hazardous substances eligible to be 

evaluated for toxicity/persistence: PCBs [Aroclor-1242, Aroclor-1248, Aroclor-1254 and Aroclor-1260], copper, 

lead, zinc and benzo(a)pyrene. 

The HRS documentation record at proposal on page 41 documents assigned toxicity/persistence/bioaccumulation 

factor values for the hazardous substances from HRS Table 4-16. PCBs and benzo(a)pyrene had the highest 

toxicity/persistence/bioaccumulation factor values at 5 x 108

. Page 32 of the HRS documentation record at 

proposal documents analysis of the four hazardous waste quantity measures and, in accordance with HRS Section 

2.4.2.1.5, Calculation of source hazardous waste quantity value, selected the highest of the values assigned to the 

source (the contaminated sediments). In the case of Eighteenmile Creek, this value is >0 based on the volume 

measure. Page 42 of the HRS documentation record at proposal documents the assignment of the human food 

chain threat waste characteristics factor category. 

VanDeMark did not challenge any aspect of waste characteristics evaluation under the human food chain threat. 

Environmental Threat Waste Characteristics 

The HRS at Section 4.1.4.2, Environmental threat-waste characteristics, instructs the evaluator to “[e]valuate the 

waste characteristics factor category for each watershed based on two factors: ecosystem 

toxicity/persistence/bioaccumulation and hazardous waste quantity.” 

Regarding ecosystem toxicity/persistence/bioaccumulation, HRS Sections 4.1.4.2.1.1, Ecosystem Toxicity, 

4.1.4.2.1.2, Persistence, and 4.1.4.2.1.3, Ecosystem bioaccumulation potential, direct the assignment of the 

ecosystem toxicity value, the persistence value and the ecosystem bioaccumulation potential value. The HRS at 

Section 4.1.4.2.1.4, Calculation of ecosystem toxicity/persistence/bioaccumulation factor value, directs the 

assignment of the ecosystem toxicity/persistence/bioaccumulation factor value. 

Regarding hazardous waste quantity, HRS Section 4.1.4.2.2, Hazardous waste quantity, instructs the evaluator to 

“[a]ssign the same factor value for hazardous waste quantity for the watershed as would be assigned in section 

4.1.2.2.2 for the drinking water threat.” HRS Section 4.1.2.2.2, Hazardous waste quantity, in the surface water 

migration pathway portion of the HRS, cites HRS Section 2.4.2, Hazardous Waste Quantity, in the Overview 

section of the HRS, which instructs in part to evaluate source hazardous waste quantity using the following four 

measures in the following hierarchy: hazardous constituent quantity; hazardous wastestream quantity; volume; 

and area. 

11
Eighteenmile Creek NPL Listing Support Document March 2012 

HRS Section 4.1.4.2.3, Calculation of environmental threat-waste characteristics factor value, establishes the 

human food chain threat-waste characteristic factor value by multiplying together the ecosystem 

toxicity/persistence factor value and the hazardous waste quantity factor value for the watershed and assigning the 

factor value from HRS Table 2-7. 

The HRS documentation record at proposal on page 40 identifies the hazardous substances eligible to be 

evaluated for ecosystem toxicity/persistence: PCBs [Aroclor-1242, Aroclor-1248, Aroclor-1254 and Aroclor1260], copper, lead, zinc and benzo(a)pyrene. The HRS documentation record at proposal documents on page 45 

assigned ecosystem toxicity/persistence/bioaccumulation factor values for the hazardous substances, as found in 

HRS Table 4-21. PCBs and benzo(a)pyrene had the highest ecosystem toxicity/persistence/bioaccumulation factor 

values at 5 x 108

. Page 32 of the HRS documentation record at proposal documents analysis of the four hazardous 

waste quantity measures and, in accordance with HRS Section 2.4.2.1.5, Calculation of source hazardous waste 

quantity value, selected the highest of the four values assigned to the source (the contaminated sediments). In the 

case of Eighteenmile Creek, this value is >0, based on the volume measure. Page 46 of the HRS documentation 

record at proposal documents the assignment of the environmental threat-waste characteristics factor category. 

VanDeMark did not challenge any aspect of waste characteristics evaluation under the environmental threat. 

Targets

The targets for the Eighteenmile Creek site were correctly documented and determined. Targets were evaluated in 

two threats in the surface water pathway: human food chain threat and environmental threat, as directed by HRS 

Section 4.1.1.3, Evaluation of overland/flood migration component, quoted above. Specific HRS requirements for 

targets under each threat are cited below. 

Human Food Chain Threat Targets 

The HRS at Section 4.1.3.3, Human food chain threat-targets, instructs the evaluator to evaluate two target 

factors for each watershed—food chain individual and population—and then for both factors, to determine 

whether the target fisheries are subject to actual or potential human food chain contamination. According to HRS 

Section 4.1.3.3, a fishery (or portion of a fishery) within the target distance limit of the watershed is subject to 

actual human food chain contamination if, among other things, a hazardous substance having a bioaccumulation 

potential factor value of 500 or greater is present in a 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 (or if the fishery is closed, 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). 

Furthermore, HRS Section 2.5, Targets, defines Level II contamination as including those situations where the 

hazardous substances present do not have applicable benchmarks. 

As documented on page 41 of the HRS documentation record at proposal, the bioaccumulation potential factor 

value for PCBs and benzo(a)pyrene is 50,000, exceeding the threshold of 500. The HRS documentation record at 

proposal on page 43 documents fishing for human consumption in Newfane, New York, in the area delineated by 

observed release samples per HRS Section 2.5. The HRS documentation record at proposal continues on the same 

page to document the target fishery at Fisherman’s Park just downstream of Burt Dam and beyond the zone of 

contamination. Page 43 of the HRS documentation record at proposal correctly scores Level II concentrations for 

food chain individual; page 44 of the HRS documentation record at proposal correctly scores Level II 

concentrations for food chain population; and page 44 of the HRS documentation record at proposal correctly 

scores potential contamination. 

Furthermore, in addition to evidence of fishing for human consumption at specific locations along Eighteenmile 

Creek, Eighteenmile Creek is closed to fishing, as documented on page 5 of Reference 36 (Chemicals in Sportfish 

12
Eighteenmile Creek NPL Listing Support Document March 2012 

and Game, Health Advisories) to the HRS documentation record at proposal; the entire Eighteenmile Creek is a 

closed fishery. The State’s Department of Health issued a “don’t eat” advisory for all fish due to PCB 

contamination. The hazardous substance for which the fishery has been closed and attributable to the 

Eighteenmile Creek site has been documented in the observed release to the watershed, and at least a portion of 

the fishery is within the boundaries of the observed release (i.e., zone of contamination). 

VanDeMark did not challenge any aspect of human food chain threat target evaluation. 

Environmental Threat Targets 

HRS Section 4.1.4.3, Environment threat-targets, instructs the scorer to “[e]valuate the environmental threattargets factor category for a watershed using one factor: sensitive environments.” HRS Section 4.1.4.3.1, Sensitive 

environments, instructs the evaluator to evaluate sensitive environments using ecological-based benchmarks 

rather than health-based benchmarks in determining the level of contamination from samples. 

HRS Section 4.1.4.3.1.2, Level II concentrations, instructs the evaluator to assign value(s) from HRS 

Table 4-23 to each sensitive environment subject to Level II concentrations and for wetlands, to assign an 

additional value from HRS Table 4-24 based on the total length of wetlands along the hazardous 

substance migration path (that is, wetland frontage). 

Page 47 of the HRS documentation record at proposal correctly explains that there are several HRS-eligible 

wetlands along the contaminated portion of Eighteenmile Creek and within the zone of actual contamination for 

the environmental threat. Therefore, actual contamination is documented, and the wetland frontage within this 

zone is evaluated as actually contaminated. No media-specific benchmarks were exceeded; therefore, the wetlands 

were evaluated as Level II concentrations, per HRS Section 2.5.2, Comparison to benchmarks. 

Page 48 of the HRS documentation record at proposal correctly documents the application of the HRS to 

information on the Eighteenmile Creek to document Level II concentrations at wetlands along Eighteenmile 

Creek in the zone of contamination. 

VanDeMark did not challenge any aspect of environmental threat target evaluation. 

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

3.7 Observed Release: Selection of Background Level 

Comment: In making a comment indicating that only those portions of Eighteenmile Creek with “significant 

levels of sediment impact above regional background” should be listed as the Site, VanDeMark questioned the 

adequacy of the background level used to establish the extent of the Site. 

Response: Sample-specific background levels for different sampling events were correctly applied in the 

evaluation of the Eighteenmile Creek site. For HRS purposes, site-specific (sample-specific) background is 

evaluated, as opposed to regional background information, so that it can be determined if the contamination can 

be attributed to any specific release. However, regional background information may be considered in other stages 

of the Superfund process, e.g., to determine the full extent of contamination in the vicinity of the Site. In 

performing an evaluation under the HRS, background is used to establish the presence or absence of upstream 

sources and also to determine significant increase in contamination, i.e., to determine observed release and the 

zone of contamination. HRS Section 4.1.2.1.1, Observed release, says in part that observed release by chemical 

analysis can be established when: 

• 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). 

13
Eighteenmile Creek NPL Listing Support Document March 2012 

− Limit comparisons to similar types of samples and background concentrations—for 

example, compare surface water samples to surface water background concentrations.... 

− Some portion of the significant increase must be attributable to the site to establish the 

observed release, except: when the site itself consists of contaminated sediments with no 

identified source, no separate attribution is required. [Emphasis added] 

HRS Section 4.1.3.1, Human food chain threat-likelihood of release, instructs that the likelihood of release factor 

category value (which includes observed release as a component) for the human food chain threat for the 

watershed be assigned as it would be for the drinking water threat, as described in HRS Section 4.1.2.1.3, 

Calculation of drinking water threat-likelihood of release factor category value. 

Furthermore, HRS Section 2.3, Likelihood of release, says in part to:

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. [Emphasis added]

As explained in HRS Section 2.3, Likelihood of release, establishing an observed release by chemical analysis 

involves demonstrating that the concentration of the hazardous substance in a release sample is significantly 

increased above background, and attributing some portion of the significant increase to the site. When other sites 

might be present in the vicinity of the site being evaluated and might have contributed to the significant increase 

(e.g., in highly industrialized areas), it is consistent with the HRS to obtain sufficient samples between the site 

being evaluated and other potential sites to demonstrate an increase in concentration attributable to the site above 

that level possibly due to other possible sites. Thus, background samples are used at this site both to establish a 

significant increase and to establish attribution. 

In the case of the Eighteenmile Creek site, background sample locations that would be outside the influence of the 

anticipated zone of contamination were selected. As stated on page 19 of the HRS documentation record at 

proposal, background samples were collected from Eighteenmile Creek and its tributaries; background sample 

locations are shown in Figure 1 of this support document. For the 2007 sampling event where Eighteenmile Creek 

in Lockport was sampled, Figure 2A of the HRS documentation record at proposal depicts that background 

samples were collected at the headwaters of Eighteenmile Creek southeast and outside the influence of the 

NYSBC as well as at the origins of the East and West Branches of Eighteenmile Creek immediately upstream of 

the Eighteenmile Creek Corridor. For the sampling event further downstream, which took place November 2009 

through June 2010, Figures 2B, 2C and 2D of the HRS documentation record at proposal more clearly depict 

background sample locations that were identified on various tributaries to Eighteenmile Creek in relatively nonindustrial portions of Niagara County. These sampling locations were chosen to screen out other possible sites and 

to establish the absence of upstream sources. 

The HRS documentation at proposal, in section 2.4.1, Hazardous Substances, explained the similarity between 

background sediment samples and sediment samples showing observed release, highlighting features such as 

physical setting, sample depth, sample description, sampling method, analytical method and level of total organic 

compounds. Additionally, the time frame of observed release sample collection was similar to that of the 

background samples used for the evaluation, in that the two distinct sampling events had identified their own 

background locations for sampling. 

VanDeMark did not question the location of the background samples and whether or not they would screen out 

other possible sources. Furthermore, VanDeMark did not specify that the “regional background” to which it 

referred had been established for sediment, which would be needed for comparison purposes. Moreover, 

14
Eighteenmile Creek NPL Listing Support Document March 2012 

15

VanDeMark did not specifically challenge any of the background level values specified in Tables 1 or 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. 

4.0 Conclusion 

The original HRS score for this site was 50.00. Based on the above response to comments, the Site score remains 

unchanged. The final scores for the Eighteenmile Creek site are: 

Ground Water: Not Scored 

Surface Water: 100.00 

Soil Exposure: Not Scored 

Air: Not Scored 

HRS Site Score: 50.00