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###### Environmental Protection Agency

          - 40 CFR Part 300 
          - [FRL-6956-2] 

# AGENCY:

Environmental Protection Agency. 

# ACTION:

Direct final deletion of the Cleveland Mill Superfund Site from the National Priorities List. 

# SUMMARY:

The Environmental Protection Agency (EPA) Region 6 is publishing a direct final deletion of the Cleveland Mill Superfund Site (the “Site”), located in Grant County, New Mexico, from the National Priorities List (NPL). 

The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is appendix B of 40 CFR part 300, which is 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 Mexico, through the New Mexico Environment Department (NMED) because EPA has determined that all appropriate response actions under CERCLA have been completed at the Site and, therefore, further remedial action pursuant to CERCLA is not appropriate. 

# DATES:

                        This direct final deletion will be effective July 23, 2001 unless EPA receives adverse comments by June 21, 2001. 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:

Comments may be mailed to: Ms. Beverly Negri, Community Involvement Coordinator (6SF-PO), U.S. EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, (214) 665-8157 or 1-800-533-3508. 

*Information Repositories:*                         Comprehensive information about the Site is available for viewing and copying at the Site information repositories located at: U.S. EPA Region 6 Library, 12th Floor, 1445 Ross Avenue, Suite 12D13, Dallas, Texas 75202-2733, (214) 665-6424, Monday through Friday 7:30 a.m. to 4:30 p.m.; Silver City Public Library, 5151 West College Avenue, Silver City, New Mexico 88061, (505) 538-3672, Monday and Thursday 9:00 a.m. to 8:00 p.m., Tuesday and Wednesday 9:00 a.m. to 6:00 p.m., Friday 9:00 a.m. to 5:00 p.m., and Saturday 9:00 a.m. to 1:00 p.m.; New Mexico Environment Department Library, 1190 St. Francis Drive, Santa Fe, New Mexico 87502, (505) 827-2844, Monday through Friday 8:30 a.m. to 5:30 p.m.                     

# FOR FURTHER INFORMATION CONTACT:

Ms. Kathleen Aisling, Remedial Project Manager (6SF-LT), U.S. EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, (214) 665-8509 or 1-800-533-3508. 

# 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 6 is publishing this direct final notice of deletion of the Cleveland Mill Superfund Site from the NPL. 

The EPA identifies sites that appear to present a significant risk to public health or the environment and maintains the NPL as the list of those sites. As described in the NCP at 40 CFR 300.425(e)(3), sites deleted from the NPL remain eligible for remedial actions if conditions at a deleted site warrant such action. 

                    Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication of a notice of intent to delete. This action will be effective July 23, 2001 unless EPA receives adverse comments by June 21, 2001 on this document. If adverse comments are received within the 30-day public comment period on this deletion, EPA will publish a timely withdrawal of this direct final 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                           ( print page 28097)                        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 Cleveland Mill Superfund 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 

Section 300.425(e) of the NCP provides that releases may be deleted from the NPL where no further response is appropriate. In making a determination to delete a release from the NPL, EPA shall 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 (Hazardous Substance Superfund Response Trust Fund) response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or 

iii. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate. 

Even if a site is deleted from the NPL, where hazardous substances, pollutants, or contaminants remain at the deleted site above levels that allow for unlimited use and unrestricted exposure, CERCLA section 121(c), 42 U.S.C. 9621(c), requires that a subsequent review of the site be conducted at least every five years after the initiation of the remedial action at the deleted site to ensure that the action remains protective of public health and the environment. If new information becomes available which indicates a need for further action, EPA may initiate remedial actions. 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) The EPA consulted with NMED on the deletion of the Site from the NPL prior to developing this direct final deletion. 

(2) The NMED concurred with deletion of the Site from the NPL. 

                    (3) Concurrently with the publication of this direct final deletion, a notice of the availability of the parallel notice of intent to delete published today in the “Proposed Rules” section of the                     **Federal Register**                     is being published in a major local newspaper of general circulation at or near the Site and is being distributed to appropriate federal, state, and local government officials and other interested parties; 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 deletion in the Site information repositories identified above. 

(5) If adverse comments are received within the 30-day public comment period on this document, EPA will publish a timely notice of withdrawal of this direct final 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: 

### A. Site Location 

The Site is located in Grant County, in southwestern New Mexico, approximately 5.5 miles northeast of Silver City, New Mexico. The Site includes approximately 4 acres in mountainous terrain and 14 acres which extend down a drainage area into the streambed of Little Walnut Creek. The surrounding property is located in a rapidly developing residential area that is adjacent to the Gila National Forest and private lands. The population within a 3-mile radius of the Site is estimated to be 1,200. 

### B. Site History 

The Site is a former ore processing mill area adjacent to the Cleveland Mine. The Cleveland Mine, located approximately 0.5 mile northeast of the mill area, is one of the Cleveland Group of Mines located in the West Pinos Altos Mining District. The first of the Cleveland Mining claims was staked in the early 1900s and included a milling operation at the Site. The milling operation employed a gravity separator until 1916, and a flotation process from 1916 until at least 1919. Approximately 125,000 tons of lead, zinc, and copper ore were produced from the Cleveland Mine during the period from about 1900 until 1919. After this time, the site was leased for mining and grazing. The tailings from the milling operations were deposited at the headwaters of the Little Walnut Creek and both the soil and the surface water were contaminated with Site-related hazardous substances. 

The Site was proposed for inclusion on the NPL on June 24, 1988, and inclusion was finalized on March 31, 1989, pursuant to section 105 of CERCLA, 42 U.S.C. 9605, identifying the Site as a priority for long-term remedial evaluation and response. 

#### Remedial Investigation and Feasibility Study (RI/FS) 

From August 1990 through March 1992, NMED, under an agreement with EPA, conducted a Remedial Investigation (RI) at the Cleveland Mill Superfund Site to determine the nature and extent of the problem presented by the release of hazardous substances, pollutants or contaminants at the Site. Hazardous substances were detected in soil and other surface materials at the site at concentration levels that exceed health-based standards: arsenic ranged from 4.1 to 3,020 milligrams per kilogram (mg/kg); beryllium ranged from 0.25 to 12.8 mg/kg; cadmium ranged from 0.15 to 376 mg/kg; lead ranged from 5.8 to 13,500 mg/kg; and zinc ranged from 57.3 to 122,000 mg/kg. The NMED also conducted a Feasibility Study (FS) on the Site, under an agreement with EPA. The primary objective of the FS, completed in March 1993, was to ensure that appropriate remedial alternatives were developed and evaluated such that relevant information concerning the remedial action options could be presented to a decision-maker (in this case the EPA Region 6 Regional Administrator) and an appropriate remedy selected. 

                    On April 9, 1993, the EPA released the RI and FS Reports. The RI concluded that if no action was taken at the Site, there would be a threat to human health because Site visitors may be exposed to dangerous concentrations of hazardous substances in tailings, sediment, and surface water at the Site. Moreover, there was a potential for the                           ( print page 28098)                        wells of nearby residents to become contaminated. These residents rely on ground water for drinking.                 

#### Record of Decision Findings 

On September 24, 1993, after consideration of public comments, the EPA, with the concurrence of the NMED, issued a Record of Decision (ROD) memorializing its selection of a remedy to address the contamination at the Site. The remedy was chosen in accordance with CERCLA and the NCP. The ROD was based on the administrative record for the Site. The overall Site remedy, as described in the 1993 ROD, called for excavation of the contaminated mill waste material, transportation of the waste material to a reprocessor for treatment, and disposal of the treatment residuals at the reprocessing facility in an area where other tailings and residuals from ore-processing were disposed. The remedy in the 1993 ROD did not include a remedy for the shallow on-site aquifer because the EPA believed that the contamination would attenuate once the source (i.e., the contaminated waste material) was removed. Therefore, the 1993 ROD included ground water monitoring, to ensure that the contamination did not worsen or spread to nearby residential wells prior to the excavation and removal of the source of the contamination, and to verify that the ground water quality improved once the source was removed. 

#### Removal Action 

In a June 1995, Consent Decree (CD), the participating companies agreed to implement the remedy specified in the 1993 ROD. However, the 1993 ROD remedy was not implemented because the search for an acceptable off-site disposal facility was ultimately unsuccessful, and because, during the search, unanticipated and powerful rainfall events caused hazardous substances from the Site to migrate in contaminated runoff. This unanticipated contaminant migration posed an immediate increased risk to human health and the environment. 

On July 11, 1997, to address the immediate risk, the EPA, with the concurrence of the NMED, issued an Action Memorandum that authorized a time-critical removal action to physically address the Site contamination and to restore affected surface areas at the Site. The participating companies agreed to implement this removal action through an EPA Administrative Order on Consent (AOC) which became effective on September 23, 1997. As described below, the removal action included the excavation of the contaminated material, and the placement of that material in an on-Site containment cell. The field activities required by the AOC were completed on November 19, 1998, the date on which the seeds of native plants were sown on the last area of the Site in order to provide vegetative cover. Completion of the final AOC requirement occurred on December 10, 1998, the date the participating companies submitted the Removal Action Final Report which was accepted by EPA. 

#### Cleanup Activities Performed 

The cleanup activities at the Site were conducted from September 1997 through December 1998 during the time-critical removal action. The time-critical removal action included: 
    - Excavation of 164,960 cubic yards of contaminated tailings and sediment from the mine area, the mill area, and the streambed;
    - Neutralization of the acidic excavated material through admixing with limestone;
    - Disposal of the neutralized material in a limestone cell constructed at the Site;
    - Covering of the cell with a multi-layered cap,
    - Construction of erosion control measures such as terraces; and
    - Reseeding of the disturbed areas of the Site and the disposal cell cap.

### C. Characterization of Risk 

Contaminated materials were removed from Site soils and sediments until concentrations of contaminants remaining on the Site met the health-based remediation goals specified in the 1993 ROD (these goals were referred to as “Remedial Action Goals” in the ROD) and incorporated into the Action Memorandum as soil and sediment “cleanup levels.” Cleanup levels for soil and sediment included: arsenic, 30 milligrams per kilogram in soil (mg/kg); beryllium, 4 mg/kg; cadmium, 140 mg/kg; lead, 500 mg/kg; and zinc, 82,000 mg/kg. At the conclusion of the time-critical removal action, confirmatory samples were taken at all excavated areas of the Site to verify that all soils (including tailings) and sediment with concentrations of contaminants higher than the cleanup levels (i.e., the remediation goals established in the ROD) had been removed. 

The environmental threat at the Site was addressed through this time-critical removal. As part of this removal, the waste material in the mill area and in the stream was excavated, the waste material was treated with limestone to neutralize its acidity, the treated material was disposed of in a limestone cell constructed at the Site, and the cell was covered by a multi-layered cap. 

The EPA issued an Amended ROD for the Site on September 20, 1999, stating that no further response action was necessary; however, as explained in the Amended ROD, the continuation of ground water and surface water monitoring, operation and maintenance (O&M) of the constructed remedy, and implementation of the existing institutional controls will continue. The O&M activities include inspections to ensure that erosion does not compromise the remedy and to ensure that the revegetation efforts are successful. Institutional controls include restrictive covenants warning against the use of ground water and advising future owners about the risks of disturbing the cover and/or the underlying material. 

The original selected remedy, the time-critical removal action and the remedy selected in the Amended ROD (collectively the “Site remedies”) are protective of public health and the environment, comply with federal and state requirements that are legally applicable or relevant and appropriate to the remedial action, and are cost effective. The Site remedies utilized permanent solutions to the maximum extent practicable for this Site. This Site meets all the completion requirements as specified in “Close Out Procedures for National Priorities List Sites,” OSWER Directive 9320.2-09A-P (2000), and in the June 16, 2000, Site Close Out Report prepared by the EPA Region 6 Superfund Division. 

### D. Future Activity 

                    Because the implementation of the Site remedies resulted in hazardous substances remaining on-site at concentration levels above levels that allow for unlimited use and unrestricted exposure (see 42 U.S.C. 9621(c), and 40 CFR 300.430(f)(4)(ii)), a review will be conducted at least every five years after commencement of the remedial action (which, at this Site for the purposes of the five-year review only, is considered to be the start of the time-critical removal action) to assure that human health and the environment are being protected by the response action. The five-year reviews will be conducted pursuant to “Structure and Components of Five-Year Reviews,” OSWER Directive 9355.7-02 (May 23, 1991) and “Supplemental Five-Year Review Guidance,” OSWER Directive 9355.7-02A (July 26, 1994) or other EPA guidance current at the time of the review. All response activities have                           ( print page 28099)                        been completed at the Site other than O&M and five-year reviews.                 

### E. Community Involvement 

Public participation activities have been satisfied as required by CERCLA section 113(k), 42 U.S.C. 9613(k), and CERCLA section 117, 42 U.S.C. 9617. Documents in the deletion docket which EPA relied on for its decision to delete the Site from the NPL are available to the public at the information repositories. 

## V. Deletion Action 

The EPA, with concurrence of the NMED, has determined that responsible parties have implemented all appropriate response actions required at the Site 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 of a notice of intent to delete. This action will be effective July 23, 2001 unless EPA receives adverse comments by June 21, 2001. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final 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

Dated: January 22, 2001.

Jerry Clifford,

Deputy Regional Administrator, Region 6.

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. 

## Appendix B—[Amended] 

2. Table 1 of Appendix B to Part 300 is amended by removing the site for Cleveland Mill, Silver City, NM. 

[FR Doc. 01-12705 Filed 5-21-01; 8:45 am] 

BILLING CODE 6560-50-P