[Federal Register Volume 78, Number 223 (Tuesday, November 19, 2013)]
[Rules and Regulations]
[Pages 69302-69310]
[FR Doc No: 2013-27724]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[EPA-HQ-SFUND-1910-0010; FRL 9902-79-Region 9]

National Oil and Hazardous Substances Pollution Contingency Plan;
National Priorities List: Partial Deletion of the El Toro Marine Corps
Air Station Superfund Site

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) Region IX is
publishing a direct final Notice of Deletion of portions of the El Toro
Marine Corp Air Station Superfund Site (Site), located in Irvine,
California, 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 of the National Oil and Hazardous Substances Pollution
Contingency Plan (NCP). This direct final partial deletion is being
published by EPA with the concurrence of the State of California
through the Department of Toxic Substances Control (DTSC), because EPA
has determined that all appropriate response actions at these
identified parcels under CERCLA have been completed. However, this
partial deletion does not preclude future actions under Superfund.
    This partial deletion pertains to all Site media, including soil
and groundwater, of parcels I-A, II-A, III-A, II-J, II-Q, II-S, II-T,
III-C, I-C, II-U, I-B, I-E, I-G, I-H, I-I, I-J, I-L, I-M, I-P, II-G,
II-I, II-P, III-D, I-K, I-N, I-O, I-S, II-E, II-L, II-M, II-R, I-Q, I-
R, II-B, II-K, and II-O of the Site. The current remaining areas of the
Site will remain on the NPL and are not being considered for deletion
as part of this action.

DATES: This direct final partial deletion is effective January 21, 2014
unless EPA receives adverse comments by December 19, 2013. If adverse
comments are received, EPA will publish a timely withdrawal of the
direct final partial deletion in the Federal Register informing the
public that the partial deletion will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID no. EPA-HQ-
SFUND-1910-0010, by one of the following methods:
     http://www.regulations.gov. Follow on-line instructions
for submitting comments.
     Email<EMAIL_ADDRESS>     Fax:<PHONE_NUMBER>.
     Mail: Mary Aycock, U.S. EPA Remedial Project Manager, U.S.
Environmental Protection Agency, Region IX, Mail Code SFD-8-1, 75
Hawthorne Street, San Francisco, CA 94105.
     Hand delivery: Mary Aycock, U.S. EPA Remedial Project
Manager, U.S. Environmental Protection Agency, Region IX, Mail Code
SFD81, 75 Hawthorne Street, San Francisco, CA 94105. Such deliveries
are only accepted during the Docket's normal hours of operation, and
special arrangements should be made for deliveries of boxed
information.
    Instructions: Direct your comments to Docket ID no. EPA-HQ-SFUND-
1910-0010. 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 email. 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 email comment directly to EPA without
going through http://www.regulations.gov, your email 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 statue. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at:

Superfund Records Center, Mail Stop SFD-7C, 95 Hawthorne Street, Room
403, San Francisco, CA 94105. Phone:<PHONE_NUMBER>. Hours: Mon. thru
Fri.--8 a.m. to 5 p.m.
Heritage Park Regional Library, Reference Section, 14361 Yale Street,
Irvine, CA 92714. Phone:<PHONE_NUMBER>. Hours: Mon. thru Thu.--10 a.m.
to 9 p.m.; Sat.--10 a.m. to 5 p.m.; Sun.--12 p.m. to 5 p.m.

FOR FURTHER INFORMATION CONTACT: Mary Aycock, Remedial Project Manager,
U.S. Environmental Protection Agency, Region IX, Mail Code SFD81 75
Hawthorne Street, San Francisco, CA 94105,<PHONE_NUMBER>, email:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction
II. NPL Deletion Criteria
III. Partial Deletion Procedures
IV. Basis for Site Partial Deletion
V. Partial Deletion Action

I. Introduction

    EPA Region IX is publishing this direct final Notice of Partial
Deletion for the El Toro Marine Corp Air Station (Site), from the
National Priorities List (NPL). This partial deletion pertains to all
Site media, including soil and groundwater, of parcels I-A, II-A, III-
A, II-J, II-Q, II-S, II-T, III-C, I-C, II-U, I-B, I-E, I-G, I-H, I-I,
I-J, I-L, I-M, I-P, II-G, II-I, II-P, III-D, I-K, I-N, I-O, I-S, II-E,
II-L, II-M, II-R, I-Q, I-R, II-B, II-K, and II-O of the Site. The
properties proposed for deletion are shown in the map available in the
partial deletion docket and will be referred to hereafter as ``the
properties proposed for deletion.'' The NPL constitutes Appendix B of
40 CFR part 300 which is the Oil and Hazardous Substances Pollution
Contingency Plan (NCP), which EPA promulgated pursuant to Section 105
of the Comprehensive Environmental Response, Compensation and Liability
Act (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).
This partial deletion of the El Toro Marine Corp Air Station is
proposed in accordance with 40 CFR 300.425(e) and is consistent with
the Notice of Policy Change: Partial Deletion of Sites Listed on the
National Priorities List. 60 FR 55466 (Nov. 1, 1995). As described in
300.425(e)(3) of the NCP, a portion of a site deleted from the NPL
remains eligible for Fund-financed remedial action if future conditions
warrant such actions.
    Because EPA considers this action to be noncontroversial and
routine, this action will be effective January 21, 2014 unless EPA
receives adverse comments by December 19, 2013. Along with this direct
final Notice of Partial Deletion, EPA is co-publishing a Notice of
Intent for Partial Deletion in the ``Proposed Rules'' section of the
Federal Register. If adverse comments are received within the 30-day
public comment period on this partial deletion action, EPA will publish
a timely withdrawal of this direct final Notice of Partial Deletion
before the effective date of the partial deletion and the partial
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 for Partial Deletion 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 properties proposed for
deletion of El Toro Marine Corp Air Station and demonstrates how they
meet the deletion criteria. Section V discusses EPA's action to
partially delete the Site parcels 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. Partial Deletion Procedures

    The following procedures apply to the properties proposed for
deletion:
    (1) EPA has consulted with the state of California prior to
developing this direct final Notice of Partial Deletion and the Notice
of Intent for Partial Deletion co-published 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 for Partial Deletion prior to
their publication today, and the state, through the Department of Toxic
Substances Control, has concurred on the partial deletion of the Site
from the NPL.
    (3) Concurrently with the publication of this direct final Notice
of Partial Deletion, a notice of the availability of the parallel
Notice of Intent for Partial Deletion is being published in a major
local newspaper, the Orange County Register. The newspaper notice
announces the 30-day public comment period concerning the Notice of
Intent for Partial Deletion of the Site from the NPL.
    (4) The EPA placed copies of documents supporting the partial
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 partial deletion action, EPA will publish a
timely notice of

withdrawal of this direct final Notice of Partial 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 for
Partial Deletion and the comments already received.
    Deletion of a portion of a site from the NPL does not itself
create, alter, or revoke any individual's rights or obligations.
Deletion of a portion 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 further
response actions, should future conditions warrant such actions.

IV. Basis for Site Partial Deletion

    The following information provides EPA's rationale for deleting the
properties proposed for deletion from the NPL:

Site Background and History

    The former El Toro Marine Corps Air Station (EPA ID: CA6170023208),
(El Toro MCAS) covering approximately 4,712 acres in the City of
Irvine, County of Orange, California is located at 33 degrees ([deg])
38 minutes (') to 33[deg]41' north latitude,117[deg]41' to 117[deg]45'
west longitude, Township 6 South, Range 6 West (T6S/R6W) (Sections 2-5,
7-11, 16-17, 20-21) and T5S/R8W (Sections 32-33, 35).
    Development of former El Toro MCAS began in July 1942, when
construction of a United States Marine Corps pilot's fleet operational
training facility began on approximately 2,319 acres of land in Orange
County, California. The Site was commissioned as El Toro Marine Corps
Air Station on March 17, 1943. In 1950, the Station was selected for
development as a master jet air station and permanent center for marine
aviation of the west coast to support the operations and combat
readiness of Fleet Marine Forces, Pacific. Between 1944 and 1986,
additional land was acquired to bring the size of the on-station
portion of the installation to 4,712 acres.
    Major activities at the Site contributing to the generation of
hazardous wastes included vehicle maintenance, ground support
maintenance, aircraft maintenance, and aircraft corrosion control.
Other waste generating activities included munitions disposal, pest
control, fire protection training, and laboratory operations including
photo development, non-destructive inspection, and fuel analysis.
Wastes generated by the maintenance operations included spent solvents
and waste oils (including TCE, TCA, MEK, toluene, and PD-680), fuels,
greases removed from the spent solvents, and spent strippers. Aircraft
washrack activities resulted in discharge of alkaline soaps,
detergents, and small amounts of PD-680. Vehicle and aircraft waste
discharge produced the greatest volume of industrial waste of any of
the base activities.
    A number of potentially contaminated areas were identified on the
Site, including four landfills suspected of containing both hazardous
and solid waste, and other areas where polychlorinated biphenyls
(PCBs), battery acids, leaded fuels, and other hazardous substances
were suspected of being dumped or spilled. A Remedial Investigation
(RI) conducted by El Toro MCAS identified volatile organic compounds
(VOCs), primarily trichloroethene (TCE), in groundwater that migrated
more than three miles off base. The primary source of the groundwater
contamination was two large aircraft hangars. Land irrigated by wells
is located within three miles of the site; however, none of these wells
are drinking water sources. Surface water flows into the Upper Newport
Bay Ecological Reserve, located approximately eight miles from the
base.
    In recent years, portions of the Site were transferred to different
governmental agencies. In 1998, the Bake Parkway/Interstate 5 public
highway expansion project was completed resulting in the transfer of
approximately 23 acres to the California Department of Transportation.
In 2001, 896.7 acres in the northeast portion of the station were
transferred to the Federal Aviation Administration.
    The Site was decommissioned as an active base in July 1999. The
parcels to be deleted from the NPL have all been transferred from the
Department of the Navy (DON) to Heritage Fields LLC (Heritage Fields)
under the Base Realignment and Closure Act of 1995. Heritage Fields
plans to build a combination of residential, commercial, retail and
educational facilities on Site. In addition, Heritage Fields has
transferred 1,387 acres to the City of Irvine to create the Orange
County Great Park. The Orange County Great Park will be home to a
world-class Olympic-style sports village and entertainment center, a
new high school and neighborhood elementary schools, and infrastructure
and support for a substantially expanded Irvine transportation center.
Redevelopment efforts are on-going.
    The Site was proposed to be placed on the NPL on June 24, 1988 (53
FR 23988); and was placed on the NPL on February 21, 1990 (55 FR 6154).
In October 1990, the U.S. EPA (EPA), California Department of Health
Services (CDPH) (the CDPH was the predecessor program to the California
Department of Health Toxic Substances Control (DTSC)), California
Regional Water Quality Control Board (RWQCB) and the DON signed a
Federal Facility Agreement (FFA) which formalized the process for
environmental response actions and the relative roles of the EPA, state
agencies, and the DON under CERCLA and the Installation Restoration
Program (IRP). The FFA was signed by the EPA, the State of California,
and the DON in October 1990.
    Environmental Baseline Surveys (EBSs), which identify parcels of
land for sale, lease, or needing further investigation, were completed
in 1995 and 2003. The EBSs identified environmental factors and
locations of concern (LOCs) where further evaluation and/or actions
were ongoing or required. Once identified, these LOCs were reviewed by
the DON, state regulatory agencies and EPA. Based upon this review,
sites were either recommended for no further action (NFA) or for
further sampling. Based upon the subsequent sampling, those sites
either became NFA sites or proceeded to the more extensive
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) cleanup process.
    The portions of the Site to be deleted from the NPL include 1,900.4
acres of contiguous property. All of these parcels have been
transferred from the DON to Heritage Fields. Prior to transferring
property at El Toro MCAS, the DON was required, pursuant to Section
102(h) of CERCLA, to document that all environmental impacts associated
with the DON's activities on the Site had been thoroughly investigated
and appropriate remedial actions have been taken to protect the public
health, welfare, and the environment. DON presented this documentation
in a series of successive Finding of Suitability to Transfer (FOST)
documents. In each case, the FOST described the LOCs on the property to
be transferred and the investigation and remedial actions taken at
those properties to obtain concurrence from the EPA, CDPH/DTSC and
RWQCB. A total of 7 FOSTs were finalized for all parcels to be deleted
between July 2005 and September 2012.

    LOC site narratives where release, disposal, and/or migration of
hazardous substances occurred, but at concentrations that did not
require a removal or remedial action because site conditions were found
to be protective of both human health and the environment may be found
in a tables appendix in the Deletion Docket. This appendix does not
include LOCs that were only contaminated with petroleum, as these sites
are not subject to CERCLA based on the petroleum exemption. In total,
112 such LOCs were thoroughly evaluated and recommended for no further
action.
    This partial deletion covers the following Site parcels: I-A, II-A,
III-A, II-J, II-Q, II-S, II-T, III-C, I-C, II-U, I-B, I-E, I-G, I-H, I-
I, I-J, I-L, I-M, I-P, II-G, II-I, II-P, III-D, I-K, I-N, I-O, I-S, II-
E, II-L, II-M, II-R, I-Q, I-R, II-B, II-K, and II-O. A map identifying
the areas to be deleted, as well as the areas to remain on the NPL, is
available in the partial deletion docket.
1. Property Covered by FOST 1
    Approximately 2,798 acres of the Site were covered by FOST
1, including 1,070.2 acres that EPA determined had not been
impacted by hazardous waste and that therefore were not part of the
NPL. These two areas of the Site were removed from the NPL through two
clarification letters issued by EPA. Clarification Areas A, B, C, and
D, consisting of 978.6 acres, were removed from the NPL through an EPA
clarification letter dated October 27, 2005. Clarification Area E,
consisting of 91.6 acres, was removed from the NPL through an EPA
clarification letter dated March 21, 2006.
    The unclarified portions of the FOST 1 area consisted of
three Transfer Parcels: Transfer Parcels I-A, II-A, and III-A.
1.1 Transfer Parcel I-A
    Transfer Parcel I-A was approximately 809.5 acres. This parcel
contained 225 non-demolished buildings/structures/facilities including
the units located in the Saddleback Terrace housing area. In addition,
Parcel I-A contained IRP Site 20--Hobby Shop and a portion of IRP Site
25--Major Drainages.
1.1.1 IRP Site 20--Hobby Shop
Site Location and History
    IRP Site 20--Hobby Shop encompassed approximately 0.5 acre
immediately northwest of the intersection of North 9th Street and West
Marine Way and included Building 626. Beginning in 1967, the site was
used as an auto shop for military personnel to service and repair
privately owned vehicles. Kerosene was reportedly used to wash down the
paved area at the site until approximately 1976. The wash runoff
drained into a catch basin situated in the entry driveway and finally
drained into an oil/water separator (OWS). From 1976 until closure of
the Hobby Shop in 1999, a biodegradable soap was used in place of
kerosene.
    Site 20 originally consisted of four units:
     Unit 1--Shallow Drainage Swale (1-2 feet below grade),
adjacent to the east side of Building 626.
     Unit 2--South Drainage Ditch, ran along North 9th Street
     Unit 3--Stained Area, small area adjacent to the northwest
side of Building 626
     Unit 4--Inner Courtyard of Building 626, an entry
driveway, and a front-sloping area adjacent to the drainage ditch along
North 9th Street. The inner portion was paved with asphalt. The entry
driveway was concrete and crossed over the drainage ditch. The front
area was covered with grass with some bare spots and various trees.
Remedial Investigations
    Investigations at the IRP Site 20 included a RCRA Facility
Assessment (RFA), a Phase I RI, aerial photograph surveys in 1993, and
a Phase II RI in 1996. In 1997, Units 2 and 3 were excluded from the
site based on the CERCLA petroleum exemption, 42 U.S.C. 9601(14)(F).
Sites containing only petroleum contamination were, and continue to be
remediated under the oversight of the RWQCB).
    Soil sampling identified VOCs, semi-volatile organic compounds
(SVOCs), PCBs, and pesticides at the site, all below residential PRGs.
Arsenic was detected at concentrations above the former El Toro MCAS
background value. The RI of the site indicated that the site-related
contamination was limited to the shallow soil interval.
Selected Remedy
    The human health and ecological risk assessments showed that the
contaminants present in the soil did not present an unacceptable risk
to human health or the environment. Therefore, no remedial action was
required. A Record of Decision (ROD) for NFA was signed on September
30, 1997. No risks are present at IRP Site 20 and no institutional
controls are present.
Response Actions and Cleanup Standards
    No response actions have been taken and no cleanup standards have
been set.
Operation and Maintenance
    No operation and maintenance is required for this site.
1.1.2 IRP Site 25--Major Drainages
    IRP Site 25 encompassed approximately 22 acres and comprised the
four major washes that flowed through former El Toro MCAS. These
included Agua Chinon Wash, Bee Canyon Wash, Borrego Canyon Wash, and
Marshburn Channel. Three of these drainages (Agua Chinon Wash, Bee
Canyon Wash, and Borrego Canyon Wash) were continuations of natural
washes that originated in the Santa Ana Mountains. Surface drainage
from the hills and upgradient irrigated farmland combined with runoff
generated from extensive paved surfaces at former El Toro MCAS. The on-
station storm sewer system discharged to the drainage channels, which
then flowed into San Diego Creek. San Diego Creek discharged into upper
Newport Bay, about 7 miles downstream from its intersection with
Marshburn Channel. These washes traversed Transfer Parcels I-A, II-A,
and III-A, and also traversed property that was not part of FOST
1.
Remedial Investigations
    IRP Site 25 was constituted before the source of the regional VOC
groundwater contamination had been identified as IRP Site 24 (which is
not part of this deletion). IRP Site 25 was identified for a Phase II
RI, but the drainages were investigated as part of the Phase I RI for
IRP Sites 18 and 24 to evaluate the source of the off-site VOC
groundwater plume. Potential contamination within the major drainages
and San Diego Creek was assessed by analyzing surface water, sediment,
soil, and soil gas samples. Except for the Borrego Canyon Wash, metals
and pesticides were detected above former El Toro MCAS background
concentrations in all drainages. Significant petroleum hydrocarbon
contamination was detected at depths of 15 to 20 feet below ground
surface (bgs) at the southern end of Agua Chinon Wash, near the former
El Toro MCAS boundary.
    Within the Agua Chinon Wash, total petroleum hydrocarbons (TPH)
were detected at depths up to 57 feet bgs. The RI of the site indicated
that the site-related contamination was limited to sediment and surface
water.
Selected Remedy
    The human health and ecological risk assessments showed that the
contaminants present in these media did not present an unacceptable
risk to human health or the environment. Therefore, no remedial action
was

required. The Draft Final RI Report was completed in 1997, and a ROD
for NFA was signed on September 30, 1997. No risks are present at IRP
Site 25 and no institutional controls are present.
Response Actions and Cleanup Standards
    No response actions have been taken and no cleanup standards have
been set.
Operation and Maintenance
    No operation and maintenance is required for this site.
1.2 Transfer Parcel II-A
    Transfer Parcel II-A was approximately 1,439.6 acres. This parcel
contained a golf course and 1,078 non-demolished buildings/structures/
facilities which included the units located in San Joaquin, Vista
Terrace, Navy/Marine (NAMAR), and Wherry housing areas. Transfer Parcel
II-A included IRP Sites 6 and 19, and a portion of IRP Site 25
(described above).
1.2.1 IRP Site 6--Drop Tank Drainage Area No. 1
Site Location and History
    IRP Site 6 encompassed approximately 3 acres bounded by taxiways to
the north and west, a concrete aircraft parking apron to the east, and
East Marine Way to the south. The site consisted of three units:
     Unit 1 was an area along the edge of a concrete parking
apron where aircraft drop tanks were formerly drained of residual jet
fuel and then cleaned prior to reuse.
     Unit 2 was a shallow drainage swale that extends from the
north side of Building 727, west to a catch basin that eventually
discharged into the Agua Chinon Wash. The catch basin received surface
runoff and sediment from the site.
     Unit 3 was a flat, grass-covered area south of the
drainage swale where drop tanks were stored.
    From 1969 to 1983, aircraft drop tanks were transported to the site
where the fuel remaining in the tanks was drained. Residual jet
propulsion fuel, grade 5 (JP 5) in the tanks was drained to the
concrete apron, and the combined fuel/rinse water ran onto the adjacent
grassy area. In addition to fuel, waste lubricant oils from maintenance
operations were also reportedly stored in drums and staged in the area.
    Approximately 1,400 gallons of JP 5 fuel were reportedly drained
from the drop tanks onto the concrete apron and washed onto the
adjacent area. Portions of the unpaved areas at the site were also
reportedly used for storing oil drums. It was estimated that
approximately 300 gallons of waste oil leaked from these storage drums
at the site.
Remedial Investigations
    Investigations conducted at IRP Site 6 included a Phase I remedial
investigation (RI) and aerial photograph surveys in 1993, employee
interviews in 1994, and a Phase II RI in 1996. During the
investigations, VOCs, SVOCs, and polynuclear aromatic hydrocarbons were
detected at concentrations below residential PRGs. The maximum arsenic
concentration was detected at a depth of Property of 8-10 feet bgs and
was above the former El Toro MCAS background concentration for arsenic.
The RI of the site indicated that the site-related contamination was
limited to the shallow soil interval.
Selected Remedy
    The human health and ecological risk assessments indicated that the
contaminants present in the soil did not present an unacceptable risk
to human health or the environment. Therefore, no remedial action was
required. A ROD for NFA was signed on September 30, 1997.
Response Actions and Cleanup Standards
    No response actions have been taken and no cleanup standards have
been set.
Operation and Maintenance
    No operation and maintenance is required for this site.
1.2.2 IRP Site 19--Aircraft Expeditionary Refueling Site
Site Location and History
    IRP Site 19 was within Transfer Parcel II-A and encompassed
approximately 4 acres southwest of Buildings 404 and 414. Between 1964
and 1986, the site operated as a fuel-storage and fuel-dispensing area.
The site consisted of six 20,000-gallon JP 5 fuel bladders in 4-foot-
high earthen revetments and associated piping and fuel-dispensing
equipment. The site originally consisted of four units:
     Unit 1, Northeast Stained Area
     Unit 2, Excavated Areas;
     Unit 3, Stained Area Around Excavations; and
     Unit 4, Pump Station (this area was added for the Phase II
RI and then was removed under the CERCLA petroleum exclusion).
Initial Response
    Various spills and leaks reportedly occurred during operation of
the site. In one instance, an estimated 20,000 gallons of JP 5 were
reportedly released after a bladder rupture. Petroleum hydrocarbons
were detected in the soil beneath the ruptured bladder.
    The fuel bladders were removed in 1986, and the soil was excavated
to a maximum depth of 15 feet bgs in a 30-foot-square area beneath the
location of the bladder rupture (Unit 2). The excavation was partially
backfilled to a depth of approximately 11 feet in 1994. Prior to
backfill, soil samples were collected within the excavated area, i.e.,
IRP Site 19. No chemicals of potential concern were detected at
concentrations greater than EPA industrial PRGs. In 1996, the remaining
excavation was backfilled to grade the surrounding area with clean fill
material. An additional 19,000-square-foot area beneath the locations
of the other bladders was also excavated in 1986 to a depth of
approximately 2.5 feet. All of the buildings/structures/facilities at
the site were removed following site closure and were replaced by a
pump station and UST complex situated adjacent to the east side of the
site.
Remedial Investigations
    Investigations conducted at the site included a Phase I RI and
aerial photograph surveys in 1993, employee interviews in 1994, and a
Phase II RI in 1996. The investigations indicated SVOCs at
concentrations below residential PRGs, with the exception of
benzo(a)pyrene, which was above the industrial PRG value. VOCs were
detected at concentrations below residential PRGs. Arsenic was detected
at concentrations above the industrial PRG value, and the maximum
arsenic value was above the former El Toro MCAS background
concentration.
Selected Remedy
    The human health and ecological risk assessments showed that the
contaminants present in the soil did not present an unacceptable risk
to human health or the environment. A ROD for NFA for Units 2 and 3 was
signed on September 30, 1997. Unit 1 was excluded from the IRP under
the CERCLA petroleum exclusion in 1995 (closed by RWQCB in a letter
dated May 14, 1997), and Unit 4 was excluded from the IRP under the
CERCLA petroleum exclusion in 1997 (Unit 4 was being addressed with a
number of USTs and the associated area was therefore unsuitable for
transfer and was not part of FOST 1).
Response Actions and Cleanup Standards
    No further response actions have been taken.

Operation and Maintenance
    No operation and maintenance is required for this site.
1.2.3 PCB T56, concrete pad of transformer 56
Site Location and History
    A minor release of transformer oil containing PCBs
Selected Remedy
    No risks are present at PCB T56 and no institutional controls are
present.
Response Actions and Cleanup Standards
    The transformer was replaced and the concrete pad was removed. No
further action was required.
Operation and Maintenance
    No operation and maintenance is required for this site.
1.3 Transfer Parcel III-A
    Transfer Parcel III-A was approximately 329.0 acres. This parcel
contained 10 non-demolished buildings/structures/facilities, as well as
a portion of IRP Site 13.
1.3.1 IRP Site 13--Oil Change Area
Site Location and History
    IRP Site 13 encompassed approximately 34,000 square feet and was
bounded on the north by Former Tank Farm No. 2 and on the south by the
storage yard for Building 242. The site was situated within Transfer
Parcel III-A and Carve-Out (CO) III-B. The site was relatively flat,
unpaved, and generally unvegetated. Site 13 consisted of two units:
Unit 1 comprised the area southeast of Tank Farm No. 2 and Unit 2
comprised the area southwest of Tank Farm No. 2. Trucks were driven to
the area southeast of the tank farm (Unit 1) for oil changes, and crank
case oil was frequently drained onto the ground. From 1977 to 1983,
approximately 7,000 gallons of waste oil were drained onto the ground.
The oily soil was subsequently removed, and no visible evidence of the
oily soil remained. A review of aerial photographs indicated heavy
staining throughout the area between the tank farm and Building 242
(Unit 2), which persisted over the years of photographic record. It is
likely that oil changes were also conducted in that area.
Remedial Investigations
    Investigations conducted at the site included an RFA, a Phase I RI
and aerial photographic surveys in 1993, and employee interviews in
1994. VOCs, SVOCs, polynuclear aromatic hydrocarbons, and pesticides
were detected at concentrations below residential PRGs. Arsenic was
detected at concentrations above the industrial PRG from the surface to
a depth of 80 feet bgs. The maximum arsenic concentration was below the
former El Toro MCAS background concentration. Total recoverable
petroleum hydrocarbons (TRPH) were detected at the soil surface and at
a depth of 5 feet bgs. Based on the results of the Phase I RI
investigation, a Phase II RI was not recommended. The RI of the site
indicated that the site-related contamination was limited to the
shallow soil interval.
Selected Remedy
    The human health and ecological risk assessments showed that the
contaminants present in the soil did not present an unacceptable risk
to human health or the environment. A ROD for NFA was signed on
September 30, 1997.
Response Actions and Cleanup Standards
    No response actions have been taken and no cleanup standards have
been set.
Operation and Maintenance
    No operation and maintenance is required for this site. No deed
restrictions were recommended for Site 13 due to chemicals present in
the soil. However since the groundwater beneath Site 13 was
contaminated by trichloroethylene (TCE) and tetrachloroethylene (PCE;
also perchloroethylene) due to Site 24--VOC source area, when the NFA
ROD was signed on September 30, 1997, the use restrictions prohibiting
drilling of wells and/or extraction of groundwater and allowing access
for groundwater monitoring and maintenance of equipment associated with
groundwater remediation were to be addressed in the ROD for Site 18 and
Site 24. When the Final ROD for Site 18 and Site 24 was completed in
2002, the updated VOC plume and 500 foot buffer zone were no longer
located beneath Site 13. Consequently, groundwater restrictions due to
the Site 24 VOC plume were no longer applicable for Site 13.
2. Property Covered by FOST 2
    Approximately 8 acres of El Toro MCAS were covered by FOST
2. This area consisted of four Transfer Parcels (II-J, II-S,
II-T, and III-C), and a portion of one Transfer Parcel (II-Q). Transfer
parcels II-J and II-Q did not contain any CERCLA LOCs. Transfer Parcel
II-T was approximately 0.5 acres in size and contained one building/
structure/facility (Building 761). Transfer Parcel III-C was
approximately 1 acre in size and contained one building/structure/
facility (Building 240). NFA determinations were made for all LOCs
within Transfer Parcels II-T and III-C.
2.1 Transfer Parcel II-S
    Transfer Parcel II-S was approximately 1.3 acres in size and
included six buildings/structures/facilities (Buildings 374, 377, 447,
448, 566, and 726) and former Building 603 (demolished).
2.1.1 RFA 131
Site Location and History
    RFA 131, an engine test cell, was located within Transfer Parcel
II-S near Building 447.
Initial Response
    Near surface soils were removed in 1997.
Selected Remedy
    DTSC concurred with NFA in a letter from July 1999. RWQCB concurred
with NFA in June 2000.
Response Actions and Cleanup Standards
    No further response actions have been taken.
Operation and Maintenance
    No operation and maintenance is required for this site.
3. Property Covered by FOST 3
    Approximately 3.9 acres of El Toro MCAS were covered by FOST
3.
Site Location and History
    This area consisted of two Transfer Parcels referred to in FOST
3 as ``Carve-Outs'' (COs):
     CO I-C consisted of approximately 0.1 acre in the
northeastern portion of the former base. This CO was created during
preparation of the 2004 Finding of Suitability to Lease when a portion
of an underground pipeline (Norwalk-El Toro Pipeline) was believed to
exist within this area. However, based on a detailed review of the
pipeline physical alignment, it was determined that no portion of the
pipeline was within Transfer Parcel I-C. No buildings or utilities were
located on the Transfer Parcel.
     CO II-U consisted of approximately 3.8 acres in the
northeastern portion of the former base. No buildings or utilities were
located on the CO.
Initial Response
    A portion of the Norwalk-El Toro Pipeline was removed from CO II-U
in the fall of 2006, with the exception of

approximately 100 feet of pipeline that remains under Agua Chinon Wash.
Remedial Investigations
    The COs were evaluated during the initial phase of environmental
assessment and the results were documented in the Final 2003 EBS. The
EBS concluded that no hazardous substances were stored or released on
the COs.
Selected Remedy
    No further action was necessary in these areas.
Response Actions and Cleanup Standards
    No response actions have been taken and no cleanup standards have
been set.
Operation and Maintenance
    No operation and maintenance is required for this site.
4. Property Covered by FOST 4
    Approximately 42.9 acres of El Toro MCAS were covered by FOST
4.
Site Location and History
    This area consisted of thirteen COs: COs I-B, I-E, I-G, I-H, I-I,
I-J, I-L, I-M, I-P, II-G, II-I, II-P, III-D. COs I-L, I-M, I-P, II-G,
II-I, and II-P did not contain CERCLA LOCs.
Remedial Investigations
    As these COs did not contain CERCLA LOCs, no remedial
investigations were conducted.
Selected Remedy
    No Further Action determinations were issued for all LOCs within
COs I-B, I-E, I-G, I-H, I-I, I-J, and II-G. CO III-D contained a
portion of IRP Site 13. All other LOCs in CO III-D received NFA
determinations and no cleanup was required.
Response Actions and Cleanup Standards
    No response actions have been taken and no cleanup standards have
been set.
Operation and Maintenance
    No operation and maintenance is required for these sites.
5. Property Covered by FOST 5
    Approximately 119.3 acres of El Toro MCAS were covered by FOST
5.
Site Location and History
    This area included nine COs: COs I-F, I-K, I-N, I-O, I-S, II-E, II-
L, II-M, II-R, and CO Building 746. CO I-F is not part of this deletion
request and will remain on the NPL. CO Building 746 is located within
CO II-D and is not part of this partial deletion request and will also
remain on the NPL. COs I-K, I-N, I-O, I-S contained only petroleum LOCs
or no release, disposal, and/or migration of hazardous substances
occurred there.
Remedial Investigations
    As these COs did not contain CERCLA LOCs, no remedial
investigations were conducted.
Selected Remedy
    No Further Action determinations were issued for all LOCs within CO
II-E and II-M. CO II-L contained a portion of IRP Site 25. All other
LOCs in CO II-L received NFA determinations and no cleanup was
required.
Response Actions and Cleanup Standards
    No response actions have been taken and no cleanup standards have
been set.
Operation and Maintenance
    No operation and maintenance is required for these sites.
5.1 CO II-R
    CO II-R consisted of approximately 1.2 acres and was located in the
southeast portion of the former base.
5.1.1 Resource Conservation and Recovery Act (RCRA) Facility Assessment
(RFA) Site 244/PCB T74
Site Location and History
    There was one pad-mounted transformer (PCB T74) at Building 457.
Historically, disposal activities were conducted at this site, though
the dates of these operations are unknown. A response action was
required for releases of transformer oil containing PCBs at Building
457 (RCRA Facility Assessment (RFA) Site 244).
Remedial Investigations
    While no remedial investigations were conducted under CERCLA, RFA
Site 244/PCB T74 was evaluated under a RCRA Facility Assessment.
Selected Remedy
    DTSC concurred with NFA for RFA 244 in a letter dated December
1998. EPA and DTSC concurred with NFA for PCB T74 in September 2003.
Response Actions and Cleanup Standards
    Shallow soil samples that were collected in the area affected by
the PCB release identified PCBs in one of the seven samples collected.
The transformer was replaced and removal of impacted soils was
completed in 1997. The response action was completed and closed in
December 1998. No evidence of a release was observed during the visual
site inspections conducted for the 2003 EBS. Building 457 was
subsequently demolished to its foundation.
Operation and Maintenance
    No operation and maintenance is required for this site.
6. Property Covered by FOST 6
    Approximately 356.81 acres of El Toro MCAS were covered by FOST
6.
Site Location and History
    This area included eleven COs: COs I-D, I-Q, I-R, II-B, II-K, II-N,
II-O, III-B-1, III-B-2, III-E, and III-F. COs I-Q and I-R contained
only petroleum LOCs and were therefore subject to the CERCLA petroleum
exclusion, or no release, disposal, and/or migration of hazardous
substances occurred there. As a result, these COs are not discussed in
this document. Additionally, COs I-D, II-N, III-B-1, III-B-2, III-E,
and III-F are not part of this partial deletion request and will remain
on the NPL.
Remedial Investigations
    As these COs did not contain CERCLA LOCs, no remedial
investigations were conducted.
Selected Remedy
    COs II-K contained a portion of IRP Site 25. All other LOCs in CO
II-K received NFA determinations and no cleanup was required. All LOCs
in CO II-O received NFA determinations and no cleanup was required.
Response Actions and Cleanup Standards
    No response actions have been taken and no cleanup standards have
been set.
Operation and Maintenance
    No operation and maintenance is required for these sites.
6.1 CO II-B
    CO II-B consisted of approximately 6.73 acres located in the
northeast portion of the former base.
6.1.1 Temporary Accumulation Area (TAA) Site 130C
Site Location and History
    TAA 130C was located northing of Building 130.
Remedial Investigations
    While no remedial investigations were conducted under CERCLA, TAA
130C was evaluated under a RCRA Facility Assessment. Sampling indicated
low levels of arsenic and chlorinated pesticides.

Selected Remedy
    TAA 130C received site closure concurrence from DTSC in March 2009.
No further action was required.
Response Actions and Cleanup Standards
    Contaminated soil was excavated and confirmation soil samples were
collected at TAA 130C in 2008.
Operation and Maintenance
    No operation and maintenance is required for this site.
7. Property Covered by FOST 7
    Approximately 151.06 acres of El Toro MCAS were covered by FOST
7. This area included three COs: COs II-F-1, II-Q, and II-V-1.
There were no CERCLA LOCs within CO II-F-1 or CO II-V-1. As a result,
COs II-F-1 and II-V-1 are not discussed in this document. Any
contamination on these COs was, and continues to be remediated under
the oversight of the RWQCB.
7.1 CO II-Q
    CO II-Q consisted of approximately 84.49 acres located in the
central portion of the former base and contained buildings 114, 124,
125, 126, 127, 230, 231, 363, 372, 642, 658, 677, 698, 716, 747, 752,
763, 779, 903, 923, 938, 952, and 1804. CO II-Q also contained
structures 396, 558, 559, 560, 561, 659, 904, 905, 906, 907, 908, 909,
910, and 911. The DON leased this CO to Heritage Fields, LLC, who
subsequently assigned the lease for the majority of this CO to the City
of Irvine. CO II-Q includes portions of IRP 4 and 25.
7.1.1 IRP Site 4
Site Location and History
    IRP Site 4 is located immediately southeast of Building 658, a
former jet-engine testing facility. The site is bounded by 9th Street
to the south, Building 658 to the north and west, and Tank Farm No. 5
to the east. The IRP Site 4 consists of two units: Unit 1 is an oil-
stained area southeast of Building 658 which overlaps a concrete
transformer pad, and Unit 2 is a drainage ditch which received runoff
from a ferrocene spill.
    The staining at Unit 1 was the result of oily discharges from
Building 658, which were observed over an approximate 2-year period.
The contamination at Unit 2 originated from an August 1983 spill, when
the contents of a 500-gallon tank (wash water and residual jet fuel)
reportedly overflowed during washing and spilled onto the ground,
draining into a ditch adjacent to 9th Street. The spilled liquid
reportedly contained approximately 5 gallons of ferrocene and a
hydrocarbon carrier solution.
Remedial Investigations
    Investigations conducted at IRP Site 4 included a Phase I RI and
aerial photograph surveys in 1993. VOCs and SVOCs were below
residential PRGs in both units.
Selected Remedy
    The human health and ecological risk assessments showed that the
contaminants present in the soil did not present an unacceptable risk
to human health or the environment. Therefore, no remedial action was
required. The NFA ROD was signed on September 30, 1997.
Response Actions and Cleanup Standards
    No response actions have been taken and no cleanup standards have
been set.
Operation and Maintenance
    No operation and maintenance is required for this site.

Five Year Reviews

    Cleanup activities at El Toro MCAS have resulted in the remediation
of all Site-related contamination such that restrictions on use and/or
institutional controls were unnecessary. Accordingly, no Five-Year
Reviews were required under CERCLA.

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. Community input has been sought by the DON throughout the
cleanup process. The El Toro MCAS Restoration Advisory Board (RAB)
serves as a focal point for the exchange of information about
environmental restoration activities between the DON, regulatory
agencies, and the local community. RAB members review technical reports
and plans pertaining to the El Toro MCAS cleanup and provide input to
the DON and the regulatory agencies. RAB members serve as volunteers
and act as a liaison to the specific community they represent including
various cities and homeowner associations in the vicinity of El Toro
MCAS. All RAB meetings are open to the public and anyone interested may
attend. They are held semi-annually on a Wednesday evening in April and
November at the Irvine City Hall, One Civic Center Plaza.
    Community involvement for the areas that are the subject of this
document has occurred by soliciting public comment on various documents
depending on the site's investigation and cleanup (if needed) process.
All NFA decision documents were issued for 30-day public comment
periods with comments, if any, addressed in the Responsiveness Summary
of the Record of Decision. In addition, sites where non-time critical
removal actions occurred provided public involvement with the issuance
of the engineering evaluation/cost analysis for public comment.
    Since there are a number of ongoing investigations and cleanup at
El Toro MCAS, community involvement activities such as the biannual RAB
meetings will continue to occur.

Determination That the Criteria for Deletion Have Been Met

    The NCP (40 CFR 300.425(e)) states that a site may be deleted from
the NPL when no further response action is necessary. EPA, in
consultation with the State of California, has determined that all
appropriate response actions under CERCLA have been completed on the
properties proposed for deletion. Therefore, these portions of the
former El Toro Marine Corps Air Station meet the criteria of 40 CFR
300.425(e) and may be deleted from the NPL. The State of California,
through the DTSC, concurred on this proposed deletion by letter dated
February 1, 2013.

V. Partial Deletion Action

    The EPA, with concurrence of the State of California through the
Department of Toxic Substances Control, has determined that all
appropriate response actions under CERCLA have been completed.
Therefore, EPA is deleting parcels I-A, II-A, III-A, II-J, II-Q, II-S,
II-T, III-C, I-C, II-U, I-B, I-E, I-G, I-H, I-I, I-J, I-L, I-M, I-P,
II-G, II-I, II-P, III-D, I-K, I-N, I-O, I-S, II-E, II-L, II-M, II-R, I-
R, II-B, II-K, and II-O of the El Toro Marine Corp Air Station 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 January 21, 2014 unless EPA receives adverse comments by
December 19, 2013. If adverse comments are received within the 30-day
public comment period, EPA will publish a timely withdrawal of this
direct final notice of partial deletion before the effective date of
the partial 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 partially 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: October 22, 2013.
Jared Blumenfeld,
Regional Administrator Region IX.

    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 2 of Appendix B to part 300 is amended by revising the entry
under ``El Toro Marine Corps Air Station'', California to read as
follows:

Appendix B to Part 300--National Priorities List

* * * * *

                                       Table 2--Federal Facilities Section
----------------------------------------------------------------------------------------------------------------
              State                            Site name                     City/county             Notes (a)
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
CA...............................  El Toro Marine Corps Air Station  El Toro....................               P

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
(a) * * *
*P = Sites with partial deletion(s).

[FR Doc. 2013-27724 Filed 11-18-13; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: September 23, 2008 (Volume 73, Number 185)]
[Notices]
[Page 54875-54877]
[DOCID:fr23se08-117]

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SECURITIES AND EXCHANGE COMMISSION

[Securities Exchange Act of 1934; Release No. 34-58572/ September 17,
2008]

Emergency Order Pursuant to Section 12(K)(2) of the Securities
Exchange Act of 1934 Taking Temporary Action To Respond to Market
Developments

    The Commission continues to be concerned that there is a
substantial threat of sudden and excessive fluctuations of securities
prices and disruption in the functioning of the securities markets that
could threaten fair and orderly markets. As evidenced by our recent
publication of an emergency order under Section 12(k) of the Securities
Exchange Act of 1934 (the ``July Emergency Order''),\1\ we are
concerned about the possible unnecessary or artificial price movements
based on unfounded rumors regarding the stability of financial
institutions and other issuers exacerbated by ``naked'' short selling.
Our concerns, however, are no longer limited to just the financial
institutions that were the subject of the July Emergency Order. In
addition, we have become concerned that some persons may take advantage
of issuers that have become temporarily weakened by current market
conditions to engage in inappropriate short selling in the securities
of such issuers.
---------------------------------------------------------------------------

    \1\ See Exchange Act Release No. 58166 (July 15, 2008).
---------------------------------------------------------------------------

    Given the importance of confidence in our financial markets as a
whole, we have become concerned about sudden and unexplained declines
in the prices of securities. Such price declines can give rise to
questions about the underlying financial condition of an issuer, which
in turn can create a crisis of confidence without a fundamental
underlying basis. This crisis of confidence can impair the liquidity
and ultimate viability of an issuer, with potentially broad market
consequences.
    As a result of these recent developments, the Commission concluded
that there continues to exist a substantial threat of sudden and
excessive fluctuations of securities prices generally and disruption in
the functioning of the securities markets that could threaten fair and
orderly markets. Based on this conclusion, the

Commission is exercising its powers under Section 12(k)(2) of the
Securities Exchange Act of 1934.\2\ Pursuant to Section 12(k)(2), in
appropriate circumstances the Commission may issue summarily an order
to alter, supplement, suspend, or impose requirements or restrictions
with respect to matters or actions subject to regulation by the
Commission.
---------------------------------------------------------------------------

    \2\ This finding of an ``emergency'' is solely for purposes of
Section 12(k)(2) of the Exchange Act and is not intended to have any
other effect or meaning or to confer any right or impose any
obligation other than set forth in this Order.
---------------------------------------------------------------------------

    We have concluded that it is necessary to impose enhanced delivery
requirements on sales of all equity securities, by adding and making
immediately effective a temporary rule to Regulation SHO, Rule 204T.
The temporary rule imposes a penalty on any participant \3\ of a
registered clearing agency,\4\ and any broker-dealer from which it
receives trades for clearance and settlement, for having a fail to
deliver position at a registered clearing agency in any equity
security. In addition, we have concluded it is necessary to make
immediately effective amendments to Rule 203(b)(3) of Regulation SHO
that eliminate the options market maker exception from Regulation SHO's
close-out requirement. We are also making immediately effective Rule
10b-21, a ``naked'' short selling antifraud rule.\5\ We intend these
enhanced delivery requirements and the antifraud rule to impose
powerful disincentives to those who might otherwise exacerbate
artificial price movements through ``naked'' short selling.
---------------------------------------------------------------------------

    \3\ The term ``participant'' has the same meaning as in section
3(a)(24) of the Exchange Act. See 15 U.S.C. 78c(a)(24).
    \4\ The term ``registered clearing agency'' means a clearing
agency, as defined in section 3(a)(23)(A) of the Exchange Act, that
is registered as such pursuant to section 17A of the Exchange Act.
See 15 U.S.C. 78c(a)(23)(A) and 78q-1, respectively.
    \5\ Rule 204T, as set forth in this Order, applies only to fails
to deliver resulting from trades that occur after this Order becomes
effective. Rule 203(b)(3) of Regulation SHO, as amended by this
Order, continues to apply to fails to deliver that occurred prior to
the Order becoming effective. For example, if a participant has a
fail to deliver position in a threshold security that has persisted
for six consecutive settlement days prior to the effective date of
this Order and the fail continues to persist until the thirteenth
settlement day, the participant must still close out its position
pursuant to Rule 203(b)(3).
---------------------------------------------------------------------------

    In addition, in these unusual and extraordinary circumstances, we
believe such requirements are in the public interest and for the
protection of investors to maintain fair and orderly securities
markets, and to prevent substantial disruption in the securities
markets.
    This emergency requirement should significantly reduce any
possibility that ``naked'' short selling may contribute to the
disruption of markets in these securities. We described in the releases
in which we proposed and adopted Regulation SHO the bases for the
current delivery requirements Regulation SHO imposes. We believe,
however, that the unusual circumstances we now confront require the
enhanced requirements we are imposing today.
    It is ordered that, pursuant to our Section 12(k)(2) powers, we are
adding Sec.  242.204T to read as follows:

Sec.  242.204T  Short Sales.

    (a) A participant of a registered clearing agency must deliver
securities to a registered clearing agency for clearance and settlement
on a long or short sale in any equity security by settlement date, or
if a participant of a registered clearing agency has a fail to deliver
position at a registered clearing agency in any equity security for a
long or short sale transaction in that equity security, the participant
shall, by no later than the beginning of regular trading hours on the
settlement day following the settlement date, immediately close out the
fail to deliver position by borrowing or purchasing securities of like
kind and quantity; Provided, however:
    (1) If a participant of a registered clearing agency has a fail to
deliver position at a registered clearing agency in any equity security
and the participant can demonstrate on its books and records that such
fail to deliver position resulted from a long sale, the participant
shall by no later than the beginning of regular trading hours on the
third consecutive settlement day following the settlement date,
immediately close out the fail to deliver position by purchasing
securities of like kind and quantity; or
    (2) If a participant of a registered clearing agency has a fail to
deliver position at a registered clearing agency in any equity security
sold pursuant to Sec.  230.144 of this chapter for thirty-five
consecutive settlement days after the settlement date for a sale in
that equity security, the participant shall, by no later than the
beginning of regular trading hours on the thirty-sixth consecutive
settlement day following the settlement date for the transaction,
immediately close out the fail to deliver position by purchasing
securities of like kind and quantity;
    (b) If a participant of a registered clearing agency has a fail to
deliver position in any equity security at a registered clearing agency
and does not close out such fail to deliver position in accordance with
the requirements of paragraph (a) of this section, the participant and
any broker or dealer from which it receives trades for clearance and
settlement, including any market maker that would otherwise be entitled
to rely on the exception provided in Sec.  242.203(b)(2)(iii), may not
accept a short sale order in the equity security from another person,
or effect a short sale in the equity security for its own account, to
the extent that the broker or dealer submits its short sales to that
participant for clearance and settlement, without first borrowing the
security, or entering into a bona-fide arrangement to borrow the
security, until the participant closes out the fail to deliver position
by purchasing securities of like kind and quantity and that purchase
has cleared and settled at a registered clearing agency;
    (c) The participant must notify any broker or dealer from which it
receives trades for clearance and settlement, including any market
maker that would otherwise be entitled to rely on the exception
provided in Sec.  242.203(b)(2)(iii):
    (1) That the participant has a fail to deliver position in an
equity security at a registered clearing agency that has not been
closed out in accordance with the requirements of paragraph (a) of this
section; and
    (2) When the purchase that the participant has made to close out
the fail to deliver position has cleared and settled at a registered
clearing agency; and
    (d) Definitions: (1) For purposes of this section, the term
settlement date shall mean the business day on which delivery of a
security and payment of money is to be made through the facilities of a
registered clearing agency in connection with the sale of a security.
    (2) For purposes of this section, the term regular trading hours
has the same meaning as in Rule 600(b)(64) of Regulation NMS (17 CFR
242.600(b)(64).
    It is further ordered that, pursuant to our Section 12(k)(2)
powers, Sec.  242.203(b)(3)(iii) of Regulation SHO is amended by
revising paragraphs (b)(3)(iii) and (b)(3)(v) to read as follows:
    (iii) Provided, however, that a participant of a registered
clearing agency that has a fail to deliver position at a registered
clearing agency in a threshold security on the effective date of this
amendment and which, prior to the effective date of this amendment, had
been previously excepted from the close-out requirement in paragraph
(b)(3) of this section (i.e., because the participant of a registered
clearing agency had a fail to deliver position in

the threshold security that is attributed to short sales effected by a
registered options market maker to establish or maintain a hedge on
options positions that were created before the security became a
threshold security), shall immediately close out that fail to deliver
position, including any adjustments to the fail to deliver position,
within 35 consecutive settlement days of the effective date of this
amendment by purchasing securities of like kind and quantity;
* * * * *
    (v) If a participant of a registered clearing agency entitled to
rely on the 35 consecutive settlement day close-out requirement
contained in paragraph (b)(3)(i), (b)(3)(ii), or (b)(3)(iii) of this
section has a fail to deliver position at a registered clearing agency
in the threshold security for 35 consecutive settlement days from the
effective date of the amendment, the participant and any broker or
dealer for which it clears transactions, including any market maker,
that would otherwise be entitled to rely on the exception provided in
paragraph (b)(2)(iii) of this section, may not accept a short sale
order in the threshold security from another person, or effect a short
sale in the threshold security for its own account, without borrowing
the security or entering into a bona-fide arrangement to borrow the
security, until the participant closes out the fail to deliver position
by purchasing securities of like kind and quantity;
    It is further ordered that, pursuant to our Section 12(k)(2)
powers, we are adding Sec.  240.10b-21 to read as follows:

Sec.  240.10b-21  Deception in connection with a seller's ability or
intent to deliver securities on the date delivery is due.

    PRELIMINARY NOTE to rule 10b-21: This rule is not intended to
limit, or restrict, the applicability of the general antifraud
provisions of the federal securities laws, such as section 10(b) of the
Act and rule 10b-5 thereunder.
    It shall also constitute a ``manipulative or deceptive device or
contrivance'' as used in section 10(b) of this Act for any person to
submit an order to sell an equity security if such person deceives a
broker or dealer, a participant of a registered clearing agency, or a
purchaser about its intention or ability to deliver the security on or
before the settlement date, and such person fails to deliver the
security on or before the settlement date. For purposes of this
section, settlement date is as defined in Sec.  242.204T of this
chapter.
    This Order shall be effective at 12:01 a.m. EDT on September 18,
2008, and shall terminate at 11:59 p.m. on October 1, 2008 unless
further extended by the Commission.

    By the Commission.
Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-22166 Filed 9-22-08; 8:45 am]

BILLING CODE 8010-01-P