[Federal Register Volume 77, Number 129 (Thursday, July 5, 2012)]
[Notices]
[Pages 39771-39773]
[FR Doc No: 2012-16373]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-67294; File No. SR-PHLX-2012-68]

Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Order
Approving a Proposed Rule Change, as Modified by Amendment No. 1, To
Accept Inbound Orders From NASDAQ OMX BX's New Options Market

June 28, 2012.

I. Introduction

    On May 15, 2012, NASDAQ OMX PHLX LLC (``Exchange'' or ``PHLX'')
filed with the Securities and Exchange Commission (``Commission''),
pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ a proposed rule change to
accept inbound options orders routed by NASDAQ Options Services LLC
(``NOS'') from NASDAQ OMX BX (``BX'') on a one year pilot basis in
connection with the establishment of a new options market by BX. The
proposed rule change was published for comment in the Federal Register
on May 24, 2012.\3\ The Commission received no comment letters
regarding the proposed rule change. This order approves the proposed
rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 67026 (May 18,
2012), 77 FR 31053 (``Notice''). The Commission notes that on May
17, 2012, the Exchange submitted Amendment No. 1 to the proposed
rule change, to make technical amendments to Item 3.a of the Form
19b-4 and Item II of Exhibit 1.
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II. Background

    PHLX Rule 985(b) prohibits the Exchange or any entity with which it
is affiliated from, directly or indirectly, acquiring or maintaining an
ownership interest in, or engaging in a business venture with, an
Exchange member or an affiliate of an Exchange member in the absence of
an effective filing under Section 19(b) of the Act.\4\ NOS is a
registered broker-dealer that is a member of the Exchange, and
currently provides to members of the Exchange optional routing services
to other markets.\5\ NOS is owned by NASDAQ OMX Group, Inc. (``NASDAQ
OMX''), which also owns three registered securities exchanges--the
Exchange, BX, and the NASDAQ Stock Market LLC (``NASDAQ'').\6\ Thus,
NOS is an affiliate of these exchanges.\7\ Absent an effective filing,
PHLX Rule 985(b) would prohibit NOS from being a member of the
Exchange. The Commission initially approved NOS's affiliation with PHLX
and its affiliated exchanges in connection with NASDAQ OMX's
acquisition of PHLX and BX,\8\ and NOS currently performs certain
limited activities for each.\9\ With the current proposed rule change,
the Exchange seeks approval to permit NOS to perform a new function.
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    \4\ 15 U.S.C. 78s(b). PHLX Rule 985 also prohibits a PHLX member
from being or becoming an affiliate of PHLX, or an affiliate of an
entity affiliated with PHLX, in the absence of an effective filing
under Section 19(b). See PHLX Rule 958(b)(1)(B).
    \5\ See PHLX Rule 1080(m)(iii). See also Notice, supra note 3,
at 31054 n.5 and accompanying text.
    \6\ See Securities Exchange Act Release No. 58324 (August 7,
2008), 73 FR 46936 (August 12, 2008) (SR-BSE-2008-02; SR-BSE-2008-
23; SR-BSE-2008-25; SR-BSECC-2008-01) (order approving NASDAQ OMX's
acquisition of BX) (``BX Acquisition Order''); Securities Exchange
Act Release No. 58179 (July 17, 2008), 73 FR 42874 (July 23, 2008)
(SR-PHLX-2008-31) (order approving NASDAQ OMX's acquisition of PHLX)
(``PHLX Acquisition Order'').
    \7\ See id. See also Notice, supra note 3, at 31054.
    \8\ See PHLX Acquisition Order, supra note 6, at 42877; and BX
Acquisition Order, supra note 6, at 46944. See also Securities
Exchange Act Release No. 57478 (March 12, 2008), 73 FR 14521, 14532-
14533 (March 18, 2008) (SR-NASDAQ-2007-004 and SR-NASDAQ-2007-080)
(initially approving NASDAQ's affiliation with NOS in connection
with the establishment of the NASDAQ Options Market (``NOM'') (``NOM
Approval Order'').
    \9\ See, e.g., PHLX Rule 1080(m) (governing order routing by
PHLX); and Securities Exchange Act Release No. 65399 (September 26,
2011), 76 FR 60955 (September 30, 2011) (SR-PHLX-2011-111)
(approving routing of orders by NOS inbound to PHLX from NOM)
(``PHLX Routing Order'').
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    On May 1, 2012, BX filed a proposed rule change to establish a new
BX options market (``BX Options''), which will be an electronic trading
system that trades options.\10\ As part of its proposal, BX proposed
that NOS provide BX with outbound options routing services to other
markets, including its affiliate PHLX. On May 15, 2012, the Exchange
filed the instant proposal to allow the Exchange to accept such options
orders routed inbound by NOS from BX on a one year pilot basis subject
to certain limitations and conditions.\11\
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    \10\ See Securities Exchange Act Release No. 66983 (May 14,
2012), 77 FR 29730 (May 18, 2012) (SR-BX-2012-030) (notice of
propose rule change to adopt rules for the new BX options market)
(``BX Options Proposal'') On June 26, 2012, the Commission approved
the BX Options Proposal. See Securities Exchange Act Release No.
67256 (June 26, 2012) (``BX Options Approval'').
    \11\ See Notice, supra note 3.
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III. Discussion and Commission Findings

    After careful review, the Commission finds that the proposed rule
change is consistent with the requirements of the Act and the rules and
regulations thereunder applicable to a national securities
exchange.\12\ Specifically, the

Commission finds that the proposed rule change is consistent with
Section 6(b)(1) of the Act,\13\ which requires, among other things,
that a national securities exchange be so organized and have the
capacity to carry out the purposes of the Act, and to comply and
enforce compliance by its members and persons associated with its
members, with the provisions of the Act, the rules and regulation
thereunder, and the rules of the Exchange. Further, the Commission
finds that the proposed rule change is consistent with Section 6(b)(5)
of the Act,\14\ which requires, among other things, that the rules of a
national securities exchange be designed to prevent fraudulent and
manipulative acts and practices; to promote just and equitable
principles of trade; to foster cooperation and coordination with
persons engaged in regulating, clearing, settling, and processing
information with respect to, and facilitating transactions in
securities; to remove impediments to and perfect the mechanism of a
free and open market and a national market system; and, in general, to
protect investors and the public interest. Section 6(b)(5) also
requires that the rules of an exchange not be designed to permit unfair
discrimination among customers, issuers, brokers, or dealers.
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    \12\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition and
capital formation. 15 U.S.C. 78c(f).
    \13\ 15 U.S.C. 78f(b)(1).
    \14\ 15 U.S.C. 78f(b)(5).
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    NOS will operate as a facility of BX that provides outbound options
routing from BX Options to other market centers, subject to certain
conditions.\15\ The operation of NOS as a facility of BX providing
outbound routing services from BX Options will be subject to BX
oversight, as well as Commission oversight. BX will be responsible for
ensuring that NOS's outbound options routing service is operated
consistent with Section 6 of the Act and BX rules. In addition, BX must
file with the Commission rule changes and fees relating to BX's
outbound options routing services.
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    \15\ See BX Options Approval, supra note 10, at Section II.D.
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    Recognizing that the Commission has previously expressed concern
regarding the potential for conflicts of interest in instances where a
member firm is affiliated with an exchange of which it is a member, the
Exchange previously proposed, and the Commission approved, limitations
and conditions on NOS's affiliation with the Exchange.\16\ Also
recognizing that the Commission has previously expressed concern
regarding the potential for conflicts of interest in instances where a
member firm is affiliated with an exchange to which it is routing
orders, the Exchange proposed the following limitations and conditions
to NOS's affiliation with the Exchange to permit the Exchange to accept
inbound options orders that NOS routes in its capacity as a facility of
BX: \17\
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    \16\ See PHLX Acquisition Order, supra note 6, at 42887. See
also Notice, supra note 3, at 31054 n.10 and accompanying text. In
addition, the Exchange has authority to accept inbound orders that
NOS routes in its capacity as a facility of NASDAQ, subject to
certain limitations and conditions. See PHLX Routing Order, supra
note 9, at 60956.
    \17\ See Notice, supra note 3, at 31054.
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     First, the Exchange and the Financial Industry Regulatory
Authority (``FINRA'') will maintain a Regulatory Contract, as well as
an agreement pursuant to Rule 17d-2 under the Act (``17d-2
Agreement'').\18\ Pursuant to the Regulatory Contract and the 17d-2
Agreement, FINRA will be allocated regulatory responsibilities to
review NOS's compliance with certain PHLX rules.\19\ Pursuant to the
Regulatory Contract, however, the Exchange retains ultimate
responsibility for enforcing its rules with respect to NOS.
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    \18\ 17 CFR 240.17d-2.
    \19\ NOS is also subject to independent oversight by FINRA, its
designated examining authority, for compliance with financial
responsibility requirements.
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     Second, FINRA will monitor NOS for compliance with PHLX's
trading rules, and will collect and maintain certain related
information.\20\
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    \20\ Pursuant to the Regulatory Contract, both FINRA and the
Exchange will collect and maintain all alerts, complaints,
investigations and enforcement actions in which NOS (in its capacity
as a facility of BX routing orders to the Exchange) is identified as
a participant that has potentially violated applicable Commission or
Exchange rules. The Exchange and FINRA will retain these records in
an easily accessible manner in order to facilitate any potential
review conducted by the Commission's Office of Compliance
Inspections and Examinations. See Notice, supra note 3, at 31054
n.14.
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     Third, FINRA will provide a report to the Exchange's chief
regulatory officer (``CRO''), on a quarterly basis, that: (i)
Quantifies all alerts (of which the Exchange or FINRA is aware) that
identify NOS as a participant that has potentially violated Commission
or Exchange rules, and (ii) lists all investigations that identify NOS
as a participant that has potentially violated Commission or PHLX
rules.
     Fourth, the Exchange has in place PHLX Rule 985, which
requires NASDAQ OMX, as the holding company owning both the Exchange
and NOS, to establish and maintain procedures and internal controls
reasonably designed to ensure that NOS does not develop or implement
changes to its system, based on non-public information obtained
regarding planned changes to the Exchange's systems as a result of its
affiliation with the Exchange, until such information is available
generally to similarly situated Exchange members, in connection with
the provision of inbound options order routing to the Exchange.
     Fifth, the Exchange proposes that the routing of options
orders from NOS to the Exchange, in NOS's capacity as a facility of BX
be authorized for a pilot period of one year.
    In the past, the Commission has expressed concern that the
affiliation of an exchange with one of its members raises potential
conflicts of interest, and the potential for unfair competitive
advantage.\21\ Although the Commission continues to be concerned about
potential unfair competition and conflicts of interest between an
exchange's self-regulatory obligations and its commercial interest when
the exchange is affiliated with one of its members, for the reasons
discussed below, the Commission believes that it is consistent with the
Act to permit NOS, in its capacity as a facility of BX, to route
options orders inbound to the Exchange on a pilot basis, subject to the
limitations and conditions described above.\22\
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    \21\ See, e.g., Securities Exchange Act Release Nos. 54170 (July
18, 2006), 71 FR 42149 (July 25, 2006) (SR-NASDAQ-2006-006) (order
approving NASDAQ's proposal to adopt NASDAQ Rule 2140, restricting
affiliations between NASDAQ and its members); 53382 (February 27,
2006), 71 FR 11251 (March 6, 2006) (SR-NYSE-2005-77) (order
approving the combination of the New York Stock Exchange, Inc. and
Archipelago Holdings, Inc.); 58673 (September 29, 2008), 73 FR 57707
(October 3, 2008) (SR-Amex-2008-62 and SR-NYSE-2008-60) (order
approving the combination of NYSE Euronext and the American Stock
Exchange LLC); 59135 (December 22, 2008), 73 FR 79954 (December 30,
2008) (SR-ISE-2009-85) (order approving the purchase by ISE Holdings
of an ownership interest in Direct Edge Holdings LLC); 59281
(January 22, 2009), 74 FR 5014 (January 28, 2009) (SR-NYSE-2008-120)
(order approving a joint venture between NYSE and BIDS Holdings
L.P.); 58375 (August 18, 2008), 73 FR 49498 (August 21, 2008) (File
No. 10-182) (order granting the exchange registration of BATS
Exchange, Inc.); 61698 (March 12, 2010), 75 FR 13151 (March 18,
2010) (File Nos. 10-194 and 10-196) (order granting the exchange
registration of EDGX Exchange, Inc. and EDGA Exchange, Inc.); and
62716 (August 13, 2010), 75 FR 51295 (August 19, 2010) (File No. 10-
198) (order granting the exchange registration of BATS-Y Exchange,
Inc.).
    \22\ The Commission notes that these limitations and conditions
are consistent with those previously approved by the Commission for
other exchanges. See, e.g., BX Options Approval, supra, note 10, at
Section II.D.2.
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    The Commission believes that these limitations and conditions
enumerated above will mitigate its concerns about potential conflicts
of interest and unfair competitive advantage. In particular, the
Commission believes that a non-

affiliated SRO's oversight of NOS,\23\ combined with a non-affiliated
SRO's monitoring of NOS's compliance with the Exchange's rules and
quarterly reporting to the Exchange, will help to protect the
independence of the Exchange's regulatory responsibilities with respect
to NOS. The Commission also believes that the Exchange's proposed
amendments to PHLX Rule 985(b) are designed to ensure that NOS cannot
use any information advantage it may have because of its affiliation
with the Exchange. Furthermore, the Commission believes that the
Exchange's proposal to allow NOS to route options orders inbound to the
Exchange from BX, on a pilot basis, will provide the Exchange and the
Commission an opportunity to assess the impact of any conflicts of
interest of allowing an affiliated member of the Exchange to route
orders inbound to the Exchange and whether such affiliation provides an
unfair competitive advantage.
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    \23\ This oversight will be accomplished through the 17d-2
Agreement between FINRA and the Exchange and the Regulatory
Contract. See Notice, supra note 3, at 31054 n.12 and accompanying
text.
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IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\24\ that the proposed rule change, as modified by Amendment No. 1
(SR-PHLX-2012-68), be, and hereby is, approved.
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    \24\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\25\
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    \25\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-16373 Filed 7-3-12; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: December 8, 2009 (Volume 74, Number 234)]
[Rules and Regulations]
[Page 64615-64619]
[DOCID:fr08de09-6]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[EPA-HQ-SFUND-1990-0011; FRL-9089-8]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct Final Notice of Deletion of the Kerr-McGee (Reed-Keppler
Park) (RKP) Superfund Site from the National Priorities List.

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SUMMARY: EPA, Region 5 is publishing a direct final Notice of Deletion
of the Kerr-McGee Reed-Keppler Park Superfund Site (Site), located in
West Chicago, Illinois, 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 an appendix to 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
Illinois, through the Illinois Environmental Protection Agency (IEPA),
because EPA has determined that all appropriate response actions under
CERCLA have been completed. However, this deletion does not preclude
future actions under Superfund.

DATES: This direct final deletion is effective February 8, 2010 unless
EPA receives adverse comments by January 7, 2010. If adverse comments
are received, EPA will publish a timely withdrawal of the direct final
deletion in the Federal Register informing the public that the deletion
will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID no. EPA-HQ-
SFUND-1990-0011, by one of the following methods:
     E-mail: Timothy Fischer, Remedial Project Manager, at
<EMAIL_ADDRESS>or Janet Pope, Community Involvement
Coordinator, at<EMAIL_ADDRESS>     Fax: Gladys Beard at<PHONE_NUMBER>.
     Mail: Timothy Fischer, Remedial Project Manager, U.S.
Environmental Protection Agency (SR-6J), 77 W. Jackson Blvd., Chicago,
IL 60604,<PHONE_NUMBER>, or Janet Pope, Community Involvement
Coordinator, U.S. Environmental Protection Agency (SI-7J), 77 W.
Jackson Blvd., Chicago, IL 60604,<PHONE_NUMBER> or 1-800-621-8431.
     Hand delivery: Janet Pope, Community Involvement
Coordinator, U.S. Environmental Protection Agency (SI-7J), 77 West
Jackson Blvd., Chicago, IL 60604. Such deliveries are only accepted
during the docket's normal hours of operation, and special arrangements
should be made for deliveries of boxed information. The normal business
hours are Monday through Friday, 8:30 a.m. to 4:30 p.m.
    Instructions: Direct your comments to Docket ID no. EPA-HQ-SFUND-
1990-0011. 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 may not be publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in the hard copy. Publicly available docket materials are available
either electronically at http://www.regulations.gov or in hard copy at:

U.S. Environmental Protection Agency--Region 5, 77 W. Jackson Blvd.,
Chicago, IL 60604, Hours: Monday through Friday, 8:30 a.m. to 4:30
p.m., excluding Federal holidays.
West Chicago Public Library, 118 W. Washington St., West Chicago, IL
60185, Phone:<PHONE_NUMBER>, Hours: Monday through Thursday, 9 a.m. to
9 p.m.; Friday and Saturday, 9 a.m. to 5 p.m.; and Sundays until May, 1
p.m. to 5 p.m.

FOR FURTHER INFORMATION CONTACT: Timothy Fischer, Remedial Project
Manager, U.S. Environmental Protection Agency (SR-6J), 77 W. Jackson
Blvd., Chicago, IL 60604,<PHONE_NUMBER><EMAIL_ADDRESS>
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 5 is publishing this direct final Notice of Deletion of
the Kerr-McGee Reed-Keppler Park (RKP) Superfund 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 the CERCLA of 1980, as
amended. EPA maintains the NPL as the list of sites that appear to
present a significant risk to public health, welfare, or the
environment. Sites on the NPL may be the subject of remedial actions
financed by the Hazardous Substance Superfund (Fund). As described in
300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible
for Fund-financed remedial actions if future conditions warrant such
actions.
    Because EPA considers this action to be noncontroversial and
routine, this action will be effective February 8, 2010 unless EPA
receives adverse comments by January 7, 2010. Along with this direct
final Notice of Deletion, EPA is co-publishing a Notice of Intent to
Delete in the ``Proposed Rules'' section of the Federal Register. If
adverse comments are received within the 30-day public comment period
on this deletion action, EPA will publish a timely withdrawal of this
direct final Notice of Deletion before the effective date of the
deletion, and the deletion will not take effect. EPA will, as
appropriate, prepare a response to comments and continue with the
deletion process on the basis of the Notice of Intent to Delete and the
comments already received. There will be no additional opportunity to
comment.
    Section II of this document explains the criteria for deleting
sites from the NPL. Section III discusses procedures that EPA is using
for this action. Section IV discusses the RKP 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 State of Illinois 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 State 30 working days for review of this
notice and the parallel Notice of Intent to Delete prior to their
publication today, and the State, through the Illinois Environmental
Protection Agency, 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, The
Daily Herald. 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 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.
    Early site investigations at the RKP Site found elevated levels of
radioactive thorium in site soils. A removal action was conducted at
the RKP Site, and a Final Report for the RKP Site removal action was
submitted and approved by EPA in April 2002. This report documented
that all cleanup criteria for soils at the RKP Site had been
successfully achieved.
    In September 2002, EPA issued a Record of Decision (ROD) for the
RKP Site which called for No Further Action, along with associated
groundwater monitoring for total uranium at the site.
    A five-year review was completed on August 13, 2007, and the review
concluded that the site remedy was protective of human health and the
environment.
    On January 28, 2008, EPA agreed that the remedial objective for
uranium in groundwater had been achieved, based upon five groundwater
sampling events between June 2006 and December 2007. On March 18, 2008,
the responsible parties completed abandonment of all site monitoring
wells. The Site has now achieved all remedial objectives.

Site Location

    The Kerr-McGee Reed-Keppler Park Site is a 100-acre community park
located in the northwestern portion of West Chicago, DuPage County,
Illinois, about 30 miles west of Chicago, Illinois. The Kerr-McGee
Reed-Keppler Park Site is located north of National Street and west of
Arbor Avenue. The majority of the Kerr-McGee Reed-Keppler Park Site is
owned by the City of West Chicago, and is leased to and operated by the
West Chicago Park District (Park District) for use as a public
recreation area. The park is used for a variety of activities including
tennis, volleyball, soccer, and baseball/softball. The land use within
one mile of the site is primarily residential. The Park District's
Family Aquatic Center is also located in the northeast section of the
Reed-Keppler Park.

Site History

    In the early 1900's, the RKP Site was mined as a quarry to provide
rock and embankment material for construction of the Chicago, Wheaton
and Western Railway (now the Illinois Prairie Path embankment owned by
Commonwealth Edison). This old quarry area was left as a topographic
low area and was subsequently used for solid waste (household and
commercial garbage) disposal from as early as 1939 until 1973. Among
the solid wastes found at the RKP Site were thorium mill tailings and
other process wastes generated at the West Chicago Rare Earths Facility
(REF), operated in West Chicago by Lindsay Light and Chemical Company,
and its successors, from 1934 until 1973. In 1967, Kerr-McGee Chemical
Corporation purchased the REF and maintained operations until the
facility was closed in 1973.
    Several site investigations were conducted, and in 1996, EPA
determined that the level of contamination in the surface soils at the
RKP Site warranted a time-critical removal action and that removal
decision was documented in an Action Memorandum. The Action Memorandum
reported that the median level of soil contamination, based upon soil
samples collected at the RKP Site, was 286 picoCuries per gram (pCi/g)
of total radium, with the maximum exceeding 15,000 pCi/g. The Action
Memorandum concluded that contaminated soil should be removed until a
cleanup criterion of 5 pCi/g of total radium (radium-226 + radium-228)
over background was achieved. The background concentration for the RKP
Site was determined to be 2.2 pCi/g, thereby establishing the cleanup
criterion for the RKP Site at 7.2 pCi/g. The Action Memorandum, along
with an Action Criteria Document that explained the radiation cleanup
level, formed the basis for EPA's Unilateral Administrative Order
(UAO), which was issued to Kerr-McGee Chemical Corporation and the City
of West Chicago, Illinois, requiring removal activities at the RKP Site
to address the radioactive contamination and protect human health and
the environment.
    A total of 114,652 loose cubic yards of contaminated soil and
debris were removed from the RKP Site between April 1997 and October
1999. The contaminated material was then shipped to the REF to be
physically separated. All contaminated material was then shipped to a
Nuclear Regulatory Commission (NRC) licensed disposal Site in Utah by
rail. Final restoration activities for the RKP Site were completed in
November 2000. A Final Report for the RKP removal action was submitted
to EPA in April 2002, which confirmed that the removal action met all
of the requirements and cleanup criteria specified in the Action
Memorandum and the Action Criterion Document for the RKP Site.

Remedial Investigation and Feasibility Study (RI/FS)

    After the completion of the soil removal action at RKP, EPA
determined that all action necessary to protect human health and the
environment had been taken with respect to the soils at the RKP Site.
Due to an exceedance of the drinking water standard for uranium in one
monitoring well at the site, EPA required monitoring of nine wells at
the site. The EPA monitored these wells until sufficient data was
collected to insure that all groundwater concentrations were decreasing
and that the drinking water standard for uranium had been attained in
all the site wells.
    Groundwater data were collected in 1994 and 1997 at the RKP Site as
part of investigation efforts at the site. Concentrations of total
dissolved uranium, elevated above background, were detected in wells 4
and 5 in October 1994. Wells 1, 2, 3, 4, and 5 were subsequently
abandoned or removed from the site during excavation of contaminated
soil.
    Kerr-McGee installed five new monitoring wells (1-5) at the RKP
Site in November 1997. Monitoring wells 7-9 were also subsequently
installed to replace some of the original Site wells that had been
removed as part of site excavation activities.
    In August 2001, additional groundwater samples were collected from
the nine RKP monitoring wells to determine if residual groundwater
contamination levels achieved the remedial objective following
completion of the removal action at the RKP Site. One well (RKP-5)
exhibited concentrations of total uranium in exceedance of the drinking
water standard for total uranium in 40 CFR 141. This standard, also
known as the Maximum Contaminant Level (MCL), is

30 micrograms per liter ([mu]g/L) for total uranium. This corresponds
to a radioactivity level of about 27 picoCuries per liter (pCi/L). The
concentration of uranium in RKP-5 in August 2001 was 37.1 pCi/L. All of
the other RKP monitoring wells were in compliance with the MCL.
    EPA cleanups conducted under CERCLA are legally required to comply
with all Applicable or Relevant and Appropriate Requirements (ARARs).
The MCLs in the Safe Drinking Water Act are considered an ARAR for all
CERCLA sites that overlie aquifers that are used, or may be reasonably
anticipated to be used, as a drinking water source in the future. EPA
promulgated the MCL for total uranium in 65 FR 76708, National Primary
Drinking Water Regulations, on December 7, 2000. The State of Illinois
has designated the groundwater aquifer underlying the RKP site and the
City of West Chicago as Class I--Potential Potable Groundwater Resource
in accordance with 35 Illinois Administrative Code (IAC) Part 620
Subpart B, Groundwater Classification for Class I Designation and IAC
Part 620 Subpart D, State of Illinois Groundwater Quality Standards.
    Due to the exceedance of the drinking water standard for uranium in
monitoring well RKP-5, EPA required monitoring of the nine site wells
until sufficient data was collected to insure that all groundwater
concentrations were decreasing and that the drinking water standard for
uranium in 40 CFR Part 141 (30 [mu]g/L or 27 pCi/L) had been attained
in all site wells.

Record of Decision Findings

    In September 2002, EPA issued a Record of Decision ROD for the RKP
Site which selected No Further Action, along with associated
groundwater monitoring for total uranium at the RKP Site. Due to the
exceedance of the drinking water standard for uranium at monitoring
well RKP-5, at the RKP Site, however, EPA required monitoring of the
nine site wells until sufficient data was collected to insure that all
groundwater concentrations were decreasing and that the drinking water
standard for uranium in 40 CFR Part 141 (30 [mu]g/L or 27 pCi/L) had
been attained in all site wells. When EPA issued the ROD, EPA did not
expect that active treatment of the groundwater underlying the RKP Site
would be required because:
    (1) The removal action conducted from 1997 to 2000 by Kerr-McGee
removed the source of uranium contamination (the radioactively
contaminated subsurface soils below the water table at RKP Site).
Therefore, there was no continuing source of uranium in the subsurface
soil to be released to groundwater and cause the concentrations in
groundwater to increase.
    (2) Only one of the nine wells at the RKP Site (RKP-5) exhibited
groundwater contamination above the MCL drinking water standard for
uranium (30 [mu]g/L or 27 pCi/L). Six of the nine RKP monitoring wells
were located in areas that were considered downgradient from the former
quarry and landfill areas at the site. RKP-5 was also sampled in
January 1998 and the concentration of uranium in the well at that time
was 7.43 pCi/L, which was below the MCL. RKP-5 was in compliance with
the MCL when it was sampled in 1998 and the result in August 2001 was
only marginally above the MCL. Consequently, there was a high
probability that the 37.1 pCi/L result was an isolated sample result
that would diminish within a reasonable time. In fact, beginning in
December 1997, a total of 15 samples have been collected from the nine
RKP groundwater wells, and the 37.1 pCi/L result from RKP-5 in August
2001 was the only exceedance of the MCL in the data set.
    (3) Although EPA considered the shallow aquifer underlying and
surrounding the area of the RKP site a potential drinking water source,
the City of West Chicago prohibited the use of the groundwater by
residents and required its residents to abandon groundwater wells in
the City of West Chicago. In addition, the City of West Chicago
obtained its drinking water from nine municipal wells, two of which
were in the vicinity of the RKP Site. These wells are screened in a
deep aquifer system, which is separated from the shallow aquifer by a
Silurian dolomite and Maquoketa shale layer that inhibits the vertical
flow of groundwater from the upper aquifer to the underlying formation.
Therefore, it was extremely unlikely that contaminants in the upper
aquifer could migrate to the draw down zones of the City wells. Shallow
groundwater in the vicinity of the RKP Site is not used as a drinking
water source. There were no known conduits between the shallow and deep
aquifers, and no site related contaminants have been detected in any of
the nine City wells above background concentrations. Consequently,
there was no reason to believe that a complete pathway to human
receptors existed, nor was one expected to form given the City of West
Chicago's ordinance prohibiting the use of groundwater in the area.
    Groundwater monitoring was conducted at the RKP Site from June 2006
until December 2007, when it was demonstrated that the MCL had been
achieved, and maintained, for three consecutive sampling events. On
January 28, 2008, EPA agreed that the remedial objective for uranium in
groundwater had been achieved and that monitoring well abandonment
could take place at the RKP Site. On March 18, 2008, Tronox (formerly
Kerr-McGee) completed abandonment of all RKP Site wells.

Cleanup Goals

    Groundwater monitoring was performed at the RKP Site five times
between June 2006 and December 2007. The groundwater remedial objective
was to monitor ``to insure that future concentrations of uranium in the
RKP Site groundwater meet the MCL drinking water standard of 30 [mu]g/
L, or 27 pCi/L. It was decided that monitoring would continue until it
has been demonstrated that the MCLs have been achieved, and maintained,
for three consecutive sampling events.'' There were five sampling
events conducted between June 2006 and December 2007 and none of the
sample results exceeded the uranium concentration remedial goal of
30[mu]g/L. For this reason, EPA declared all response actions complete
for the RKP Site. The monitoring wells were subsequently abandoned in
March 2008, and there are no remaining physical remnants of the
response action at the RKP Site left on site.

Operation and Maintenance

    There are no remaining operation and maintenance requirements for
the RKP Site. All response activities are complete and all physical
remnants have been removed.

Five-Year Review

    One five-year review was completed for the RKP Site on August 13,
2007. The five-year review concluded that the site remedy was
protective of human health and the environment. The five-year review
recommended that some maintenance be conducted on site monitoring wells
if groundwater monitoring was to be conducted into the future. This
recommendation was no longer a concern after the remedial objective for
uranium in groundwater was achieved within one and a half years of the
beginning of monitoring in 2006. All RKP monitoring wells have since
been abandoned. No more five-year reviews will be conducted at the
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 deletion docket which EPA relied on for
recommendation of the deletion of this site from the NPL are available
to the public in the information repositories and at
www.regulations.gov.

Determination That the Site Meets the Criteria for Deletion in the NCP

    The NCP (40 CFR 300.425(e)) states that a site may be deleted from
the NPL when no further response action is appropriate. EPA, in
consultation with the State of Illinois, has determined that the
responsible parties have implemented all response actions required, and
no further response action by responsible parties is appropriate.

V. Deletion Action

    EPA, with concurrence from State of Illinois through the Illinois
Environmental Protection Agency, has determined that all appropriate
response actions under CERCLA 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 February 8, 2010 unless EPA receives adverse comments by
January 7, 2010. If adverse comments are received within the 30-day
public comment period, EPA will publish a timely withdrawal of this
direct final Notice of Deletion before the effective date of the
deletion, and it will not take effect. 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: November 20, 2009.
Bharat Mathur,
Acting Regional Administrator, Region 5.

0
For the reasons set out in this document, 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 by removing ``Kerr-
McGee (Reed Keppler Park)'', ``West Chicago'', ``IL''.

[FR Doc. E9-29081 Filed 12-7-09; 8:45 am]

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