[Federal Register Volume 70, Number 146 (Monday, August 1, 2005)]
[Rules and Regulations]
[Pages 44063-44066]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-15151]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[FRL-7947-1]


National Oil and Hazardous Substances Pollution Contingency Plan; 
National Priorities List

AGENCY: Environmental Protection Agency.

ACTION: Direct final notice of deletion of the Rhinehart Tire Fire Dump 
Superfund Site from the National Priorities List.

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SUMMARY: The Environmental Protection Agency (EPA) Region III is 
publishing a direct final notice of deletion of the Rhinehart Tire Fire 
Dump Superfund Site (Site), located near Winchester (Frederick County), 
Virginia, from the National Priorities List (NPL).
    The NPL, promulgated pursuant to section 105 of the Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980, as 
amended (CERCLA), is Appendix B of 40 CFR part 300, which is the 
National Oil and Hazardous Substances Pollution Contingency Plan (NCP). 
This direct final notice of deletion is being published by EPA with the 
concurrence of the Commonwealth of Virginia, through the Virginia 
Department of Environmental Quality (VDEQ), because EPA has determined 
that all appropriate response actions under CERCLA have been completed 
and, therefore, further remedial action pursuant to CERCLA is not 
appropriate.

DATES: This direct final deletion will be effective September 30, 2005, 
unless EPA receives adverse comments by August 31, 2005. 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: Andrew Palestini, Remedial 
Project Manager, U.S. EPA Region III (3HS23), 1650 Arch Street, 
Philadelphia, PA 19103-2029, Palestini.andy@epa.gov, (215) 814-3233.
    Information Repositories: Comprehensive information about the Site 
is available for viewing and copying at the site information 
repositories located at: U.S. EPA Region III, Regional Center for 
Environmental Information (RCEI), 1650 Arch Street (2nd Floor), 
Philadelphia, PA 19103-2029, (215) 814-5254, Monday through Friday, 8 
a.m. to 5 p.m.; and, in Virginia, at the Handley Library, 100 West 
Piccadilly Street, Winchester, VA 22601, (540) 662-9041 ext. 23. Hours 
of operation are: Monday through Wednesday, 10 a.m. to 8 p.m. and 
Thursday through Saturday, 10 a.m. to 5 p.m.

FOR FURTHER INFORMATION CONTACT: Andrew Palestini, Remedial Project 
Manager, U.S. EPA Region III (3HS23), 1650 Arch Street, Philadelphia, 
PA 19103-2029, Palestini.andy@epa.gov, (215) 814-3233 or 1-800-553-
2509.

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

[[Page 44064]]

Rhinehart Tire Fire Dump 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 Sec.  300.425(e)(3) of the NCP, 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 September 30, 2005, 
unless EPA receives adverse comments by August 31, 2005, on this notice 
or the parallel notice of intent to delete published in the ``Proposed 
Rules'' section of today's Federal Register. If adverse comments are 
received within the 30-day public comment period on this notice or the 
notice of intent to delete, 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 Rhinehart Tire Fire Dump 
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 Site 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 Sec.  
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) EPA consulted with the Commonwealth of Virginia on the deletion 
of the Site from the NPL prior to developing this direct final notice 
of deletion.
    (2) The Commonwealth of Virginia has concurred with 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 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) 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 notice or the companion notice of intent to 
delete also published in today's Federal Register, EPA will publish a 
timely notice of withdrawal of this direct final notice of deletion 
before its effective date. 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.
    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 History and Characteristics

Land and Resource Use
    The Rhinehart Tire Fire Dump Site is approximately 10 acres in size 
and is located on a much larger residential parcel of land located in a 
sparsely populated rural area in western Frederick County, Virginia 
approximately six miles west of Winchester. The upland portion of the 
Site, where most of the Superfund response work took place, is 
approximately 5 acres in size. Title of the property which constitutes 
the Site, as well as the remaining portion of the Rhinehart Farm, is 
part of the Rhinehart estate. The Site includes the head waters of 
Massey Run which flows into Hogue Creek and then into the Potomac 
River.
History of Contamination/Response Actions
    Between 1972 and 1983, the operator (also the site owner) used the 
ravine behind his home as a tire storage area. During the course of his 
business, it is estimated that as many as twenty-five million tires 
were handled by the operator. Most of the tires were sold for re-tread 
and others for dock linings, etc. The remainder were stored in the 
ravine.
    On October 31, 1983, a fire broke out in the tire storage area, and 
engulfed an estimated 5 to 7 million tires that were being stored at 
the site at that time. Due to the magnitude of the fire, state 
officials requested assistance from EPA. The fire was brought under 
control within a few days, but continued to smolder for six months. An 
investigation revealed that the fire was caused by an arsonist.
    The burning of the tires caused a release of contaminants and the 
melting and pyrolysis of the tires produced a hot oily substance. 
Chemically, the oily tar contained benzene, ethylbenzene, toluene, 
anthracene, naphthalene, pyrene, cadmium, chromium, nickel,

[[Page 44065]]

and zinc. The fire posed an imminent and substantial threat to human 
health and the environment through the release of airborne 
contaminants, the release of hazardous substances to Massey Run, Hogue 
Creek, and the Potomac River, as well as the fire threat to the 
surrounding forest.
    Initially, EPA constructed a catch basin to trap the free-flowing 
oily substance as it began to seep out of the edge of the tire pile and 
into Massey Run. However, because of a higher than estimated flow rate, 
a second pond (later named Dutchman's Pond) was constructed down-slope 
from the burn area. Dutchman's Pond was constructed as a lined, 50,000 
gallon pond in mid-November 1983. Approximately 800,000 gallons of oil 
product were eventually collected, removed from the site, and recycled 
as fuel oil.
    To address the long-term cleanup, the site was placed on the 
National Priorities List (NPL) on June 10, 1986. EPA split the remedial 
activities into three operable units. The purpose of Operable Unit 1 
(OU-1) was to control the off-site migration of contaminants and to re-
stabilize the area. The purpose of OU-2 was to decommission Dutchman's 
Pond. The purpose of OU-3 was to address site-wide contamination.
    Aquatic toxicity was identified in the OU-1 Remedial Investigation 
as the principal environmental concern at the site. Contaminated runoff 
from the site was found to be the main contributor to the chronic and 
acute toxicity observed in surface water samples taken from locations 
downstream of the site. Zinc, detected at levels exceeding the ambient 
water quality, was thought to be the primary contributor of risk to 
aquatic life. EPA selected an interim remedy in the OU-1 Record of 
Decision (ROD) dated June 30, 1988, with the Remedial Action Objective 
(RAO) of reducing or eliminating the continued migration of 
contaminants off-site. The slopes were stabilized by covering them with 
shotcrete (a concrete-like substance) and storm sewers were constructed 
to transport the collected surface water to Rhinehart's Pond. The dam 
at the pond was raised ten feet to enable gravity settling of the 
collected water. A water treatment plant was installed when it was 
determined that gravity settling alone would not meet the effluent 
standards set by the Virginia Water Control Board.
    The RAO for OU-2 was to eliminate the immediate threat of release 
of contaminants from Dutchman's Pond to Massey Run. Dutchman's Pond 
posed an imminent threat to the aquatic life in Massey Run because only 
six inches of freeboard remained. Samples taken from the pond verified 
surface water and sediment contamination; Again, zinc was the primary 
contributor of aquatic risk. The remedy selected for OU-2, in the 
September 29, 1992 ROD, was clean closure of Dutchman's Pond, 
including: transporting the surface water to Rhinehart's Pond for 
eventual treatment; solidification of the sediment; and, off-site 
disposal of the solidified sediment, pond liner, and the soil 
surrounding the pond which exceeded 50 mg/kg zinc.
    Because the previous operable units focused on the immediate 
threats posed by the contamination at the site, EPA evaluated long-term 
threats as part of OU-3. The OU-3 Remedial Investigation consisted of 
site-wide sampling to characterize and identify potential ground water, 
soil, surface water, and sediment contamination from the fire. 
Residential well and spring samples analyses showed concentrations 
below Federal Maximum Contaminant Levels (MCLs). Sediment analyses 
showed numerous inorganics in Rhinehart's Pond (such as arsenic, 
cadmium, copper, lead, mercury, nickel, selenium, and zinc) and Massey 
Run and Hogue Creek (such as copper, cyanide, iron, and zinc). Although 
the results of the OU-3 human health risk assessment indicated a 
potential risk associated with exposure to inorganics in the surface 
soil, subsurface soil, and ground water, a background study indicated 
that the levels detected were statistically comparable to background 
levels. As such, these media did not require remediation and were not 
considered when remedial action objectives were developed. The only RAO 
developed for human health was the potential risk associated with 
ingestion of fish from Hogue Creek, due to potential noncancer hazards 
above recommended levels.
    An Ecological Risk Assessment was performed to determine the risk 
or harm to ecological resources from exposure to contaminants from the 
Site, including toxicity evaluation of the sediment in Rhinehart's Pond 
and Massey Run. Of all the metals calculated to pose a potential risk, 
zinc was determined to pose the highest risk to the ecological 
receptors at the Site, and was determined to be the driver of the 
ecological risk found at the Site. In summary, the potential adverse 
impacts on ecological receptors in Rhinehart's Pond and Massey Run is 
associated with zinc in the sediment and cyanide and iron in the 
surface water.
    The OU-3 ROD, issued on September 29, 2000, provided for the third 
and final phase of the long-term cleanup. The OU-3 RAOs were to: 
Prevent ecological exposure to levels of zinc exceeding 1,600 mg/kg; 
prevent migration and leaching of contaminants in the sediment that may 
contaminate the surface water in Rhinehart's Pond, Massey Run, and 
Hogue Creek; and, decommission the previously constructed facilities. 
This remedy consisted of: treating the remaining surface water in 
Rhinehart's Pond; solidification of the sediments in Rhinehart's Pond 
that exceeded 1,600 mg/kg zinc; removal of the sediments in Massey Run 
which exceeded 1,600 mg/kg zinc; offsite disposal of all sediments; 
and, decommissioning the previously constructed facilities, including 
covering the shotcrete with soil, removing the surface water collection 
system, the treatment plant, and the dam at Rhinehart's Pond, as well 
as re-grading and re-vegetating the site and restoring the stream where 
Rhinehart's Pond was located.
Cleanup Standards
    The remedial action cleanup activities at the Rhinehart Tire Fire 
Dump site are consistent with the objectives of the NCP and will 
provide protection to human health and the environment. The RAO for OU-
1 (reducing or eliminating the continued migration of contaminants off-
site) was met when EPA stabilized the site by placing shotcrete on the 
fire damaged slopes and diverted the surface water through construction 
of a collection sewer. Effluent limits set by the Virginia Water 
Control Board were met prior to discharge of the water to Massey Run, 
as evidenced by the effluent sampling forms, after construction of the 
water treatment plant.
    The RAO set for OU-2 was met through the clean closure of 
Dutchman's Pond. All of the surface water was diverted to Rhinehart's 
Pond for treatment through the water treatment system and the sediment 
was solidified prior to offsite disposal. During excavation of the soil 
surrounding the pond, EPA performed confirmatory sampling to determine 
whether the cleanup standard of 50 mg/kg of zinc was met. However, the 
soil removal had to be stopped when it was feared that any further 
excavation could undermine the dam at Rhinehart's Pond. EPA issued an 
Explanation of Significant Differences, with the concurrence of the 
Virginia Department of Environmental Quality, to formalize this 
decision to stop the excavation of soil.
    The OU-3 RAOs were to: Prevent ecological exposure to levels of 
zinc exceeding 1,600 mg/kg; prevent migration and leaching of 
contaminants in the sediment that may contaminate

[[Page 44066]]

the surface water in Rhinehart's Pond, Massey Run, and Hogue Creek; 
and, decommission the previously constructed facilities. These RAOs 
were met by treating the surface water in Rhinehart's Pond; removing, 
solidifying, and disposing of the sediment in Rhinehart's Pond which 
exceeded 1,600 mg/kg of zinc; removing and disposing of the sediment in 
Massey Run which exceeded 1,600 mg/kg of zinc; and decommissioning the 
facilities previously constructed. Monitoring was performed on the 
treatment plant discharge to ensure the effluent standards were met. 
Confirmatory sampling was performed to ensure that the cleanup level 
was achieved in Rhinehart's Pond. Confirmatory sampling was not 
performed for the sediment removal in Massey Run because EPA identified 
all of the stream pools in which sediment had to be removed and all of 
the sediment was removed in each of these pools.

Operation and Maintenance

    The facilities constructed under OU-1 were operated and maintained 
by EPA from 1992 to 2002. The Commonwealth of Virginia contributed its 
ten percent share of these operation and maintenance costs through a 
Superfund State Contract.
    All of the facilities constructed under OU-1 were decommissioned as 
part of the OU-3 Remedial Action, leaving nothing left to operate or 
maintain. In addition, re-vegetation of the site (performed as part of 
OU-3) was designed to return the site to a natural condition. The 
trees, bushes, and grass seed mixtures used were selected by the U.S. 
Fish & Wildlife Service because they are indigenous to the area. During 
the June 21, 2004 inspection, the U.S. Fish & Wildlife Service verified 
that significant plant and tree species had taken root within the 
stream area and along the stream banks, with good plant diversity and 
healthy condition.

Five-Year Review

    CERCLA requires a five-year review of all sites where the remedial 
action results in hazardous substances, pollutants or contaminants 
remaining at the site above levels that allow for unlimited use and 
unrestricted exposure. EPA has completed two Five-Year Reviews for this 
Site. The first was completed on September 12, 1997 (while clean-up was 
ongoing) and the second on November 6, 2002 (just at the end of the OU-
3 Remedial Action).
    Since all of the remaining contaminated media (surface water and 
sediment from Rhinehart's Pond and sediment from Massey Run) was 
removed from the Site as part of the OU-3 Remedial Action, there are no 
hazardous substances, pollutants or contaminants remaining at the Site 
above levels that allow for unlimited use and unrestricted exposure. 
Thus, no additional Five-Year reviews will be conducted. Further, there 
are no institutional controls needed for this Site.

Community Involvement

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

V. Deletion Action

    EPA, with the concurrence of the Commonwealth of Virginia through 
the Department of Environmental Quality, has determined that all 
appropriate responses under CERCLA have been completed at the Site, and 
that no further response actions 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 September 30, 2005, 
unless EPA receives adverse comments by August 31, 2005, on this notice 
or the parallel notice of intent to delete published in the ``Proposed 
Rules'' section of today's Federal Register. If adverse comments are 
received within the 30-day public comment period, EPA will publish a 
timely withdrawal of this direct final notice of deletion before the 
effective date of the deletion and it will not take effect and EPA will 
also 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: July 26, 2005.
Donald S. Welsh,
Regional Administrator, U.S. EPA Region III.

0
For the reasons set out in the preamble, 40 CFR part 300 is amended as 
follows:

PART 300--[AMENDED]

0
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]

0
2. Table 1 of Appendix B to Part 300 is amended under Virginia (``VA'') 
by removing the site name ``Rhinehart Tire Fire Dump.''

[FR Doc. 05-15151 Filed 7-29-05; 8:45 am]
BILLING CODE 6560-50-P