Federal Register / Vol. 73, No. 179 / Monday, September 15, 2008 / Rules and Regulations 53143 

J. Executive Order 12898 (Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations) 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this final 

rule does not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

low-income populations because it does 

not affect the level of protection 

provided to human health or the 

environment. EPA approved 

Pennsylvania’s antidegradation policy, 

which is consistent with 40 CFR 

131.12(a) and provides the same level of 

protection as the federally promulgated 

antidegradation policy. This rule 

withdraws a redundant antidegradation 

policy. 

K. Congressional Review Act 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2) and will be 

effective on December 15, 2008. 

List of Subjects in 40 CFR Part 131 

Environmental protection, 

Antidegradation, Water quality 

standards. 

Dated: September 9, 2008. 

Stephen L. Johnson, 

Administrator. 

■ For the reasons set out in the 

preamble, title 40, chapter I of the Code 

of Federal Regulations is amended as 

follows: 

PART 131—WATER QUALITY 

STANDARDS 

■ 1. The authority citation for part 131 

continues to read as follows: 

Authority: 33 U.S.C. 1251 et seq. 

§ 131.32 [Removed and Reserved] 

■ 2. Section 131.32 is removed and 

reserved. 

[FR Doc. E8–21464 Filed 9–12–08; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 300 

[EPA–HQ–SFUND–1989–0011; FRL–8715–1] 

National Oil and Hazardous 

Substances Pollution Contingency 

Plan; National Priorities List 

AGENCY: Environmental Protection 

Agency. 

ACTION: Direct final Notice of Deletion of 

the Berks Landfill Superfund Site from 

the National Priorities List. 

SUMMARY: The Environmental Protection 

Agency (EPA) Region III is publishing a 

direct final Notice of Deletion of the 

Berks Landfill Superfund Site (Site), 

located in Spring Township, Berks 

County, Pennsylvania, 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 Commonwealth of Pennsylvania 

(Commonwealth), through the 

Pennsylvania Department of 

Environmental Protection (PADEP), 

because EPA has determined that all 

appropriate response actions under 

CERCLA, other than operation, 

maintenance and five-year reviews, 

have been completed. However, this 

deletion does not preclude future 

actions under CERCLA. 

DATES: This direct final deletion is 

effective November 14, 2008, unless 

EPA receives adverse comments by 

October 15, 2008. If adverse comments 

are received, EPA will publish a timely 

withdrawal of the direct final deletion 

in the Federal Register informing the 

public that the deletion will not take 

effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

SFUND–1989–0011, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

on-line instructions for submitting 

comments. 

• E-mail: matzko.kristine@epa.gov. 

• Fax: 215–814–3002, Attn: Kristine 

Matzko (3HS21) 

• Mail: EPA Region III, Attn: Kristine 

Matzko (3HS21), 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

• Hand delivery: EPA Region III, Attn: 

Kristine Matzko (3HS21), 1650 Arch 

Street, Philadelphia, Pennsylvania 

19103. Such deliveries are only 

accepted during business hours, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–SFUND–1989– 

0011. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

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

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in the 

hard copy. Publicly available docket 


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materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at: 

Regional Center for Environmental 

Information, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103, 215–814–5254. Business hours 

are Monday through Friday 8 a.m. to 5 

p.m. 

Township of Spring Municipal Office, 

2800 Shillington Road, Reading, 

Pennsylvania 19608, 610–678–5393. 

Business hours are Monday through 

Friday 8 a.m. to 5 p.m. 

FOR FURTHER INFORMATION CONTACT: 

Kristine Matzko, Remedial Project 

Manager, U.S. Environmental Protection 

Agency, Region III, (3HS21) 1650 Arch 

Street, Philadelphia, Pennsylvania 

19103, (215) 814–5719, e-mail 

matzko.kristine@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Introduction 

II. NPL Deletion Criteria 

III. Deletion Procedures 

IV. Basis for Site Deletion 

V. Deletion Action 

I. Introduction 

EPA Region III is publishing this 

direct final Notice of Deletion of the Site 

from the NPL. The NPL constitutes 

Appendix B of 40 CFR part 300, which 

is the NCP, which EPA promulgated 

pursuant to section 105 of CERCLA of 

1980, as amended. EPA maintains the 

NPL as the list of sites that appear to 

present a significant risk to public 

health, welfare, or the environment. 

Sites on the NPL may be the subject of 

remedial actions financed by the 

Hazardous Substance Superfund (Fund). 

As described in 40 CFR 300.425(e)(3) of 

the NCP, sites deleted from the NPL 

remain eligible for Fund-financed 

remedial actions if conditions warrant 

such actions. 

Because EPA considers this action to 

be noncontroversial and routine, this 

action will be effective November 14, 

2008, unless EPA receives adverse 

comments by October 15, 2008, on this 

document. Along with this direct final 

Notice of Deletion, EPA is co-publishing 

a Notice of Intent to Delete in the 

‘‘Proposed Rules’’ section of the Federal 

Register. If adverse comments are 

received within the 30-day public 

comment period on this deletion action, 

EPA will publish a timely withdrawal of 

this direct final Notice of Deletion 

before the effective date of the deletion, 

and the deletion will not take effect. 

EPA will, as appropriate, prepare a 

response to comments and continue 

with the deletion process on the basis of 

the Notice of Intent to Delete and the 

comments already received. There will 

be no additional opportunity to 

comment. 

Section II of this document explains 

the criteria for deleting sites from the 

NPL. Section III discusses procedures 

that EPA is using for this action. Section 

IV discusses the Site and demonstrates 

how it meets the deletion criteria. 

Section V discusses EPA’s action to 

delete the Site from the NPL unless 

adverse comments are received during 

the public comment period. 

II. NPL Deletion Criteria 

The NCP establishes the criteria that 

EPA uses to delete sites from the NPL. 

In accordance with 40 CFR 300.425(e), 

sites may be deleted from the NPL 

where no further response is 

appropriate. In making such a 

determination pursuant to 40 CFR 

300.425(e), EPA will consider, in 

consultation with the state, whether any 

of the following criteria have been met: 

i. Responsible parties or other persons 

have implemented all appropriate 

response actions required; 

ii. All appropriate Fund-financed 

response under CERCLA has been 

implemented, and no further response 

action by responsible parties is 

appropriate; or 

iii. The remedial investigation has 

shown that the release poses no 

significant threat to public health or the 

environment and, therefore, the taking 

of remedial measures is not appropriate. 

Pursuant to CERCLA Section 121(c) 

and the NCP, EPA conducts five-year 

reviews to ensure the continued 

protectiveness of remedial actions 

where hazardous substances, pollutants, 

or contaminants remain at a site above 

levels that allow for unlimited use and 

unrestricted exposure. EPA conducts 

such five-year reviews even if a site is 

deleted from the NPL. EPA may initiate 

further action to ensure continued 

protectiveness at a deleted site if new 

information becomes available that 

indicates it is appropriate. Whenever 

there is a significant release from a site 

deleted from the NPL, the deleted site 

may be restored to the NPL without 

application of the hazard ranking 

system. 

III. Deletion Procedures 

The following procedures apply to 

deletion of the Site: 

(1) EPA consulted with the 

Commonwealth prior to developing this 

direct final Notice of Deletion and the 

Notice of Intent to Delete co-published 

today in the ‘‘Proposed Rules’’ section 

of the Federal Register. 

(2) EPA has provided the 

Commonwealth with this notice and the 

parallel Notice of Intent to Delete for 

review prior to their publication today, 

and the Commonwealth, through the 

PADEP, has concurred on the deletion 

of the Site from the NPL. 

(3) Concurrently with the publication 

of this direct final Notice of Deletion, a 

notice of the availability of the parallel 

Notice of Intent to Delete is being 

published in a major local newspaper, 

Reading Eagle. The newspaper notice 

announces the 30-day public comment 

period concerning the Notice of Intent 

to Delete the Site from the NPL. 

(4) The EPA placed copies of 

documents supporting the proposed 

deletion in the deletion docket and 

made these items available for public 

inspection and copying at the Site 

information repositories identified 

above. 

(5) If adverse comments are received 

within the 30-day public comment 

period on this deletion action, EPA will 

publish a timely notice of withdrawal of 

this direct final Notice of Deletion 

before its effective date and will prepare 

a response to comments and continue 

with the deletion process on the basis of 

the Notice of Intent to Delete and the 

comments already received. 

Deletion of a site from the NPL does 

not itself create, alter, or revoke any 

individual’s rights or obligations. 

Deletion of a site from the NPL does not 

in any way alter EPA’s right to take 

enforcement actions, as appropriate. 

The NPL is designed primarily for 

informational purposes and to assist 

EPA management. Section 300.425(e)(3) 

of the NCP states that the deletion of a 

site from the NPL does not preclude 

eligibility for future response actions, 

should future conditions warrant such 

actions. 

IV. Basis for Site Deletion 

The following information provides 

EPA’s rationale for deleting the Site 

from the NPL: 

Site Background and History 

The Site is located in the Township 

of Spring, Berks County, Pennsylvania, 

about seven miles southwest of the City 

of Reading. The Site is several miles 

north of Route 222 between Wheatfield 

and Chapel Hill Roads. 

Originally, the Berks Landfill property 

was an iron ore mine, and then the 

property was used for waste disposal. 

The Berks Landfill was in operation 

from the 1950s to the 1980s. The Site 

consists of a 49-acre eastern landfill and 

a 19-acre western landfill. Initially, the 

western landfill was used for disposal, 

and then the eastern landfill was used 


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for disposal. There were two additional 

disposal areas referred to as the 

northern disposal area and the area 

behind the equipment building. These 

areas were used when access to the 

eastern or western landfill was not 

available. 

In 1975, the eastern landfill was 

granted a solid waste permit by the 

Pennsylvania Department of 

Environmental Resources (PADER) to 

accept municipal and demolition refuse. 

In 1986 landfilling operations ended, 

and both the eastern and western 

landfills were closed. 

Immediately adjacent to the landfills, 

and within the Site boundary, is a 

property formerly used to weigh the 

disposal trucks. After this function was 

no longer required, an auction business, 

Zerbe’s Auction House, used one of the 

buildings. Presently, there are garages 

on the property used to store large 

equipment, and another building is used 

as an office. Also, north of the landfills 

is a former residential property that is 

now vacant. 

Sampling of on-site groundwater 

wells in the late 1980s detected volatile 

organic compounds (VOCs) at 

concentrations above their respective 

drinking water standards or Maximum 

Contaminant Levels (MCLs), 

promulgated at 40 CFR Part 141 

pursuant to the Safe Drinking Water 

Act, 42 U.S.C. Section 1412. 

EPA listed the Site on the NPL on 

October 4, 1989, because of the Site’s 

potential to negatively affect residential 

well water (54 FR 41015). 

From 1990 to 1993 a series of 

protective measures were installed at 

the Site including the following: A fence 

was erected around the eastern landfill; 

the existing cap on the eastern landfill 

was repaired; and a pumping station 

was constructed to convey the leachate 

from the ponds to the local wastewater 

treatment plant. 

Remedial Investigation and Feasibility 

Study (RI/FS) 

In 1991 EPA entered into an 

Administrative Order on Consent with a 

group of responsible parties (RPs) to 

conduct a Remedial Investigation and 

Feasibility Study. The Remedial 

Investigation (RI) involved extensive 

programs of subsurface exploration, 

field testing, sampling, chemical 

analyses, geotechnical analyses, and 

data evaluation conducted between 

December 1991 and January 1994. The 

RI defined the geology, hydrogeology, 

construction of the existing landfill 

caps, and other features of the Site; 

assessed wetlands, and aquatic and 

terrestrial habitats; determined the 

nature and extent of constituents 

detected at the Site; and determined the 

potential fate mechanisms and transport 

pathways available to these 

constituents. The results of the RI were 

presented in the Remedial Investigation 

Report, which was submitted to EPA on 

March 13, 1995, and approved by EPA 

on March 29, 1996. 

The results of the RI showed that 

VOCs were present in on-site 

groundwater. The groundwater was 

shown to discharge to the surface water 

drainageways and the Cacoosing Creek 

tributary system; however, these VOCs 

were not detected in surface water. The 

most important geologic feature 

identified during the RI was an intrusive 

diabase mass which almost entirely 

encircles the Site and lies beneath the 

Site in a bowl-like configuration. As a 

result of its orientation, low 

permeability and higher hydraulic 

pressures at depth, the diabase exhibits 

significant control over the groundwater 

flows at the Site. 

A Feasibility Study (FS) was 

conducted between April 1996 and 

February 1997 to develop and evaluate 

appropriate remedial alternatives. The 

objectives of the FS were to prevent 

exposure to on-site groundwater via 

potable use, to monitor the 

groundwater, to repair the existing caps, 

and to repair the leachate management 

system. The Final Baseline Risk 

Assessment was submitted to EPA on 

July 1, 1996, and approved by EPA on 

November 27, 1996. The FS Report was 

approved by EPA on February 19, 1997. 

Record of Decision Findings 

A proposed plan that set forth EPA’s 

preferred remedial alternative for the 

Site was released for public comment in 

May 1997. A Record of Decision (ROD) 

dated July 22, 1997 identified EPA’s 

selected remedy for the Site. The 

remedy in the ROD consisted of the 

following components: Institutional 

controls to prevent future consumption 

of on-site groundwater, to restrict future 

development at the Site and to limit 

future earth moving activities at the 

Site; long-term monitoring including 

installation of a sentinel monitoring 

well cluster, sampling of residential 

wells and monitoring on-site wells, 

combustible landfill gases, and the 

adjacent aquatic habitat; operation and 

maintenance of the leachate 

management system; and repair of the 

landfill cap for the eastern landfill and 

maintenance of the eastern and western 

landfill caps. The groundwater remedy 

set forth in the ROD was natural 

containment and natural attenuation 

with long-term monitoring. 

The remedial action objectives set 

forth in the ROD were the following: 

The prohibition of future consumption 

of on-site groundwater; long-term 

monitoring to ensure that MCLs or 

Maximum Contaminant Level Goals 

(MCLGs) continue to be maintained at 

the point of compliance; continued 

effective collection of site leachate; and 

repair and maintenance of the existing 

landfill caps. 

The prohibition on groundwater 

consumption is limited to the point of 

compliance. The boundaries for the 

point of compliance are the eastern, 

western, and southern Site property 

boundaries and the northern boundary 

is Wheatfield Road. 

Response Actions 

In 1998 EPA issued a Unilateral 

Administrative Order (Docket No. III– 

98–071–DC) (UAO) to eighteen parties 

(Respondents) ordering them to design 

and construct the remedy described in 

the ROD. In accordance with the UAO, 

a subgroup of the Respondents 

developed a remedial design for the 

repair of the landfill cap and leachate 

collection system. 

The Remedial Design Work Plan, 

submitted to EPA on July 1, 1998, 

provided the framework, schedule, and 

process that would be utilized to 

complete the design for the remedy in 

the ROD. 

The Final Remedial Action Design 

Report was submitted to EPA on 

September 15, 1999, and included the 

design drawing package, technical 

specifications, the Operation, 

Maintenance, and Monitoring (OM&M) 

Plan including a Sampling and Analysis 

Plan, the Institutional Control Plan, 

Permit Requirements, Access Plan, the 

Construction Quality Assurance Plan 

(CQAP), and the Soil Erosion and 

Sediment Control Plan. EPA approved 

this final remedial design on September 

30, 1999. 

Following the approval of the 

remedial design, the Remedial Action 

Work Plan (RAWP) provided the 

methodologies, plans, and schedules of 

activities required to be completed prior 

to initiating construction of the 

Remedial Action (RA). The RAWP was 

submitted to EPA on January 7, 2000, 

and was approved by EPA on January 

13, 2000. 

The Remedial Action Construction 

Bidding Documents were issued by the 

Respondents, which included the 

CQAP, the RAWP, and the Health and 

Safety Plan. A pre-bid meeting was held 

at the Site on February 8, 2000. Bids 

were received on February 29, 2000, and 

the Remedial Action Contractor (RAC) 

was selected on March 16, 2000. 

The Revised Construction 

Management Plan (CMP) and the RAC’s 


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Health and Safety Plan were submitted 

to EPA on May 9, 2000, and approved 

by EPA on May 25, 2000. A preconstruction meeting was held at the 

Site on May 23, 2000, followed by RAC 

mobilization to the Site between May 29 

and June 5, 2000. The RA construction 

activities commenced on June 5, 2000. 

EPA and its contractor, the U.S. 

Department of Interior’s Bureau of 

Reclamation, as well as PADEP, 

provided oversight of the construction 

of the remedy. 

The components of the RA 

construction activities included 

construction and repair of access roads 

including laying of 7,000 feet of 

inspection trails on the western landfill, 

removal of surface debris, removal of 

existing tree and shrub vegetation, 

mowing of vegetation, clearing and 

grubbing of construction areas, repair of 

an area with exposed waste, repair of 

erosional features, repair of bare spots, 

repair of existing slopes, repair of the 

existing leachate management system 

including relining the 3 leachate ponds 

for a total volume of 1.5 million gallons, 

installation of the sentinel monitoring 

well, decommissioning of five 

groundwater monitoring wells, 

installation of nine gas monitoring 

probes, planting of 300 wetland trees, 

and revegetation of disturbed areas. The 

RA construction activities were 

substantially completed on October 31, 

2000. 

EPA conducted a pre-final inspection 

of the Site on October 31, 2000. A list 

of uncompleted minor items was 

identified during the pre-final 

inspection and was completed by the 

RAC by November 10, 2000. EPA 

completed its final inspection on 

November 14, 2000 and issued a 

Preliminary Project Close Out Report 

(PCOR) on December 22, 2000. The 

PCOR concluded that the Respondents 

had constructed the remedy in 

accordance with the Remedial Design 

plans and the performance-based 

specifications, and had initiated 

activities necessary to achieve 

performance standards and site 

completion. 

The final Remedial Action 

Completion Report was submitted to 

EPA on July 27, 2001. The Remedial 

Action Construction Report documented 

that the RA construction at the Site was 

completed in accordance with the UAO 

and the Remedial Design, and met the 

performance standards in the ROD. 

Cleanup Standards 

The ROD established a natural 

containment and natural attenuation 

groundwater remedy. The results of the 

groundwater sample analyses have 

continued to demonstrate the 

effectiveness of the natural groundwater 

containment system and that the ROD 

performance standards are being met. 

VOCs detected on-site have not been 

detected in either the off-site sentinel or 

residential wells which demonstrates 

the containment of the groundwater. 

Detections of cis-1,2-dichloroethene 

(cis-1,2-DCE) and vinyl chloride (VC) in 

on-site groundwater monitoring wells in 

the eastern landfill indicate that natural 

biological attenuation of the chlorinated 

ethene compounds (i.e., trichloroethene 

(TCE)) is occurring. Further, the TCE 

concentrations have been declining in a 

well in the eastern landfill. 

The sentinel well was installed in 

order to monitor the natural 

containment and natural attenuation 

groundwater remedy set forth in the 

ROD. The sentinel well, located on a 

property northwest of the Site, is 

downgradient of the Site in the 

direction of groundwater flow at the 

point where groundwater discharges to 

the Cacoosing Creek tributary. The 

sentinel well is sampled for VOCs and 

metals. There have been no exceedances 

of MCLs for VOCs in the sentinel well. 

Three metals (aluminum, iron, and 

manganese) were previously detected in 

the sentinel well above their respective 

MCLs. Currently, aluminum results are 

within the range of its secondary MCL 

and iron and manganese are less than 

their respective MCL. Since the Site was 

historically an iron-ore mine, the 

presence of some concentrations of 

metals is a naturally occurring event. 

EPA and the Respondents have 

sampled the groundwater the residents 

use as their drinking water. The 

residents selected for the sampling are 

downgradient of the Site in the general 

direction of groundwater flow. 

Residential groundwater is sampled for 

VOCs and total metals. None of the 

residents have treatment systems on 

their groundwater as a result of site 

conditions. There have been no 

detections of VOCs related to the Site in 

the residential wells and metals are 

either not detected or detected below 

the MCLs. 

The ROD performance standards for 

groundwater off-site have been 

achieved. The performance standard for 

groundwater states that there shall be no 

exceedances of MCLs off-site. The VOCs 

detected on-site above MCLs are not 

detected in the off-site sentinel well or 

residential wells, thereby demonstrating 

compliance with the performance 

standard. The metals detected on-site 

above MCLs are detected in the off-site 

sentinel well within the range of the 

secondary MCL or below the MCL, 

thereby also demonstrating compliance 

with the performance standard. 

Three VOCs are detected above the 

MCL in on-site wells: cis-1,2-DCE, TCE, 

and VC. These VOCs detected in the onsite wells above MCLs are not detected 

in the off-site wells. One well (well 

C3D) on the eastern landfill shows 

declining concentrations of cis-1,2-DCE, 

TCE, and VC. The two other wells are 

at the base of the eastern landfill: One 

well (G–5) shows consistent levels of VC 

and the second well (MP–18S) shows 

declining TCE concentrations and 

consistent levels of cis-1,2-DCE and VC. 

The remaining wells in the groundwater 

monitoring system have either no 

detections or low-level detections of 

VOCs. 

Three on-site wells (C7S, G5, G12) 

have detections of metals (aluminum, 

iron, and manganese) above their 

respective MCLs. In most cases, the 

concentrations of these metals in the onsite wells are decreasing over time. The 

metals detected on-site above MCLs are 

detected in the off-site sentinel well 

within the range of the secondary MCL 

for aluminum or below the MCL for iron 

and manganese. Since the Site was 

historically an iron-ore mine, the 

presence of some concentrations of 

metals is a naturally occurring event. 

Landfill gas is monitored for 

combustible gases, carbon monoxide, 

hydrogen sulfide, and oxygen. The 

landfill gas monitors are located 

between the edge of the eastern landfill 

and the perimeter of the northeast 

corner of the Site and also near two 

buildings (closed auction house and the 

equipment building). As part of the 

remediation, passive landfill gas vents 

were installed in the eastern landfill. 

There have been detections of 

combustible gases near the closed 

auction house and equipment building. 

In response to the detections, there is 

ambient air monitoring being conducted 

inside the buildings and continuous 

monitors for combustible gases have 

been installed in the buildings. The 

interior monitors have not detected 

landfill gases in the buildings. Landfill 

gases will continue to be monitored 

around these buildings and any other 

future structures. 

Vapor intrusion is not considered a 

pathway of concern based on site 

conditions and monitoring results. The 

sentinel well and residential wells have 

not detected VOCs. The diabase 

naturally contains the groundwater and 

discharges the groundwater to the local 

stream prior to the residential 

properties, so there is no hydraulic 

connection to the Site. The landfills are 

covered, the on-site groundwater 

concentrations have demonstrated 


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degradation and declining levels, there 

are restrictions on use of the property, 

and landfill gases are monitored inside 

and outside the buildings on-site. 

Operation and Maintenance 

Operation, maintenance, and 

monitoring commenced in December 

2000. The OM&M Plan included with 

the Remedial Action Design Report was 

modified based on as-built conditions 

following RA construction activities. An 

updated OM&M Plan was submitted to 

EPA on May 4, 2001, and approved by 

EPA on September 24, 2001. The 

OM&M Plan included operations, 

maintenance, and monitoring 

requirements for the first five calendar 

years following the completion of the 

RA construction (i.e. 2001 to 2005). The 

OM&M Plan described specific 

monitoring procedures to be 

implemented to meet the performance 

standards, including regular 

groundwater monitoring of existing onsite monitoring wells, off-site residential 

wells, and a sentinel well; routine 

monitoring of combustible gas levels 

adjacent to on-site buildings and at the 

landfill perimeter; and periodic 

monitoring of surface water, sediment 

and benthic macroinvertebrates within 

adjacent streams. On July 28, 2006 EPA 

approved a new monitoring and 

inspection schedule for the next five 

calendar years (i.e. 2006 to 2010). 

The OM&M Plan specifies an annual 

frequency of monitoring the 

groundwater wells, the residential 

wells, and the sentinel well for VOCs, 

metals, field parameters, natural 

attenuation parameters, and 

groundwater levels. The monitoring 

schedule also includes an annual 

frequency for monitoring landfill gas. 

Fourteen groundwater and landfill gas 

monitoring events have been conducted 

since the completion of the RA 

construction in accordance with the 

EPA-approved monitoring schedules, 

including events during calendar years 

2000 through 2007. Results of each 

monitoring event are presented in an 

Operation, Maintenance, and 

Monitoring Report, and submitted to 

EPA. Following each monitoring event, 

letters are sent to residents regarding the 

sampling results of their wells and a 

letter is sent to the local sewer authority 

regarding the results of the leachate 

sampling. 

Two aquatic habitat assessments 

(sampling of surface water, sediment, 

and macroinvertebrates) have been 

conducted in accordance with the 

monitoring schedule since the 

completion of the RA construction, 

including one event in 2001 and one 

event in 2004. The results of these 

assessments were presented in an 

Aquatic Habitat Assessment Report 

following each event, and compared 

with the aquatic habitat assessment 

conducted in 1999 prior to the RA 

construction. The results of the aquatic 

habitat assessments have demonstrated 

good surface water and sediment quality 

at locations downstream of the Site, and 

that in general, the aquatic habitats at 

the downstream locations are healthy 

and productive, supporting a relatively 

diverse and pollution intolerant 

population of macroinvertebrate 

species. 

In addition to the monitoring 

schedule, the OM&M Plan describes 

specific operation and maintenance 

procedures to be implemented to meet 

the performance standards set forth in 

the ROD including inspection, repair (as 

necessary), and continued operation and 

maintenance of the leachate collection 

system (collection piping, ponds and 

pumping station); and long-term 

maintenance of the forested and nonforested portions of the eastern and 

western landfill caps and adjacent 

disposal areas (northern disposal area 

and the area behind the equipment 

building). The operations and 

maintenance schedule specifies routine 

inspections of the Site access controls, 

landfill caps, leachate management 

system, groundwater monitoring well 

network, and landfill gas monitoring 

probe network. The leachate collection 

system is inspected monthly. The 

eastern landfill cap and surface water 

management features are inspected 

annually. The eastern landfill is mowed 

once a year. 

The historical results of the 

monitoring events and an analysis of the 

data trends, along with the results of the 

inspection and maintenance events, are 

presented in the Annual Report 

completed after each calendar year of 

OM&M, and submitted to EPA. The 

Annual Reports have documented that 

the performance standards for the 

operation and monitoring of the 

leachate management system and 

landfill cap continue to be met. 

The remedy for the Site includes 

institutional controls. Institutional 

controls refer to non-engineering 

measures, such as legal controls, 

intended to limit human activity in such 

a way as to prevent or reduce exposure 

to hazardous substances and protect a 

remedy. The institutional controls 

selected by EPA in the ROD call for the 

placement of legal controls to prevent 

future consumption of on-site 

groundwater, to restrict future 

development at the Site, and to limit 

future earth moving activities at the 

Site. 

In the ROD EPA selected six 

performance standards for institutional 

controls. Three of the performance 

standards provide specific restrictions 

on groundwater use in order to prevent 

drinking water uses and to protect the 

natural containment and attenuation 

remedy. One performance standard 

restricts earth moving activity in 

specified areas. The remaining two 

performance standards state that title 

restrictions, along with other 

appropriate means, shall be used to 

implement the first four performance 

standards and that the title restrictions 

should be recorded with the Berks 

County Recorder of Deeds. 

In the UAO EPA ordered that specific 

restrictions be placed on four parcels, 

named as Parcel A, Parcel B, Parcel C, 

and Parcel D, (Section VIII of the UAO— 

Access To and Use of the Site). Parcel 

A is the parcel with the two landfills 

and the leachate lagoons. Parcel B is the 

parcel with the closed auction house, 

equipment building, and the portion of 

the landfill referred to as the ‘‘area 

behind the equipment building.’’ Parcel 

B also provides access to the landfills, 

Parcel A. Parcel C is the former 

residential property which is now 

vacant. Parcel D is the property that 

contains the sentinel well. The UAO 

tailored the restrictions for each parcel 

based on the appropriate uses of each 

parcel, the necessary institutional 

control, and the performance standards 

in the ROD. 

The use restrictions required in the 

UAO for Parcel A include restrictions 

on limiting the use of the property, 

restrictions on groundwater use, 

restrictions on land disturbance, and 

restrictions on activities such as 

hunting, fishing, and tree removal. A 

notice containing a recitation of the 

restrictions in the UAO for Parcel A was 

filed by the parcel owner with the Berks 

County Recorder of Deeds as an 

additional institutional control on 

February 19, 2007. 

An 11-acre portion of Parcel B that is 

on the south side of Wheatfield Road 

directly adjacent to the landfills was 

purchased by the current owner in 2005. 

Prior to the 2005 sale, EPA issued a 

comfort letter to the prospective 

purchaser. EPA also sent a letter to 

Township of Spring on the acceptable 

uses of the 11-acre portion of Parcel B, 

information about the remedy, and 

protections that were necessary to 

maintain the remedy. The current owner 

uses the 11-acre portion of Parcel B for 

his business and plans to add a storage 

unit business. The other portion of 

Parcel B, which is a residential area, is 

on the north side of Wheatfield Road 

and is not considered part of the Site. 


jlentini on PROD1PC65 with RULES
53148 Federal Register / Vol. 73, No. 179 / Monday, September 15, 2008 / Rules and Regulations 

A deed dated March 18, 2005 contains 

the appropriate use restrictions for the 

11-acre portion of Parcel B. The 

restrictions listed in the deed include 

restrictions on groundwater use, 

restrictions limiting the use of the 

property, restrictions on land 

disturbance, and limitations on 

activities to protect the remedy. The 

deed with the use restrictions are 

institutional controls. 

For Parcel C the current owner of the 

11-acre portion of Parcel B also bought 

Parcel C to maintain the property as 

open space. Parcels B and C are adjacent 

to one another. A deed dated July 10, 

2006 contains restrictions on the use of 

the parcel consistent with the UAO. The 

restrictions listed in the deed include 

restrictions on groundwater use, 

restrictions limiting the use of the 

property, restrictions on land 

disturbance, and limitations on 

activities to protect the remedy. The 

deed with the use restrictions are 

institutional controls. 

Regarding Parcel D, the owner of 

Parcel D signed a letter agreement dated 

August 14, 2002 with the UAO 

Respondents granting the Respondents 

access to install a sentinel well and to 

collect groundwater samples. The letter 

agreement also provides for 

groundwater use restrictions and 

prohibitions on interfering with the 

well. The letter agreement is an 

institutional control. 

Five-Year Review 

Since the remedy for the Site utilized 

containment of the hazardous materials 

as a method to reduce risk, EPA will 

conduct five-year reviews to insure that 

the remedy is functioning as designed 

and preventing exposure to human 

health and the environment. EPA 

completed the first statutory Five-Year 

Review on August 2, 2005 and has 

determined that the remedy for Berks 

Landfill remains protective of human 

health and the environment. EPA plans 

to complete the next five-year review by 

August, 2010. 

Community Involvement 

To ensure that the community was 

well informed about activities at the 

Site, a series of outreach activities were 

performed. Public meetings at key 

points in the remedial process were 

held such as a meeting on the proposed 

remedy in 1997 and the construction of 

the remedy in 2000. Since then, in 2005 

as part of the five-year review, EPA 

placed an advertisement in the Reading 

Eagle and mailed a fact sheet notifying 

residents of the five-year review. In 

addition, residents whose water is 

tested receive annual information on 

their well water test results. As part of 

the deletion, EPA will place an 

advertisement in the local paper 

notifying the community of the public 

comment period, the process for 

submitting comments, and location of 

the deletion docket. 

Determination That the Site Meets the 

Criteria for Deletion in the NCP 

This Site meets all the requirements 

in the NCP and the criteria specified in 

OSWER Directive 9320.2–09–A–P, Close 

Out Procedures for National Priorities 

List Sites. Specifically, sampling 

performed during operation, 

maintenance, and monitoring verifies 

the Site has achieved the ROD remedial 

action objective that no site-related 

contaminants exceed MCLs off-site and 

that all components of the remedy 

selected by EPA in the ROD have been 

implemented. Operation, maintenance, 

and monitoring are, and will continue to 

be, performed by the Respondents 

pursuant to the 1998 UAO. 

V. Deletion Action 

The EPA, with concurrence of the 

Commonwealth through the PADEP, has 

determined that all appropriate 

response actions under CERCLA, other 

than operation, maintenance, and 

monitoring and five-year reviews, have 

been completed. Therefore, EPA is 

deleting the Site from the NPL. 

Because EPA considers this action to 

be noncontroversial and routine, EPA is 

taking it without prior publication. This 

action will be effective November 14, 

2008 unless EPA receives adverse 

comments by October 15, 2008. If 

adverse comments are received within 

the 30-day public comment period, EPA 

will publish a timely withdrawal of this 

direct final notice of deletion before the 

effective date of the deletion, and it will 

not take effect. 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: September 5, 2008. 

Donald S. Welsh, 

Regional Administrator, Region III. 

■ For the reasons set out in this 

document, 40 CFR part 300 is amended 

as follows: 

PART 300—[AMENDED] 

■ 1. The authority citation for part 300 

continues to read as follows: 

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

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

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

3 CFR, 1987 Comp., p. 193. 

■ 2. Table 1 of Appendix B to part 300 

is amended by removing the entry under 

Pennsylvania for ‘‘Berks Landfill’’, 

‘‘Spring Township’’. 

[FR Doc. E8–21305 Filed 9–12–08; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Office of the Secretary 

45 CFR Part 2 

Testimony by Employees and the 

Production of Documents in 

Proceedings Where the United States 

Is Not a Party 

AGENCY: Department of Health and 

Human Services. 

ACTION: Final rule. 

SUMMARY: This rule amends Part 2 of 

Title 45 of the Code of Federal 

Regulations, which provides that 

employees and former employees of the 

Department of Health and Human 

Services (HHS or Department) may not 

provide testimony as part of their 

official duties in litigation where the 

United States or a federal agency is not 

a party, without the approval of the 

head of the agency. The purpose of 

these amendments is to modify the 

definition of ‘‘employee’’ contained in 

45 CFR part 2. Under these 

amendments, the definition of employee 

will be revised to reflect changes in 

Medicare contracting, including changes 

brought about by the Medicare 

Prescription Drug, Improvement, and 

Modernization Act of 2003 (MMA) (Pub. 

L. 108–173). In addition, the definition 

of employee will be modified to include 

employees of a state agency performing 

survey, certification, or enforcement 

functions under Title XVIII of the Social 

Security Act or Section 353 of the 

Public Health Service Act. Further, the 

definition of employee with respect to 

employees of entities covered by the 


jlentini on PROD1PC65 with RULES