[Federal Register: March 3, 2009 (Volume 74, Number 40)]
[Rules and Regulations]
[Page 9159-9162]
[DOCID:fr03mr09-1]

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Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
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SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 201

[Release Nos. 33-9009; 34-59449; IA-2845; IC-28635]

Adjustments to Civil Monetary Penalty Amounts

AGENCY: Securities and Exchange Commission.

ACTION: Final rule.

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SUMMARY: This rule implements the Federal Civil Penalties Inflation
Adjustment Act of 1990, as amended by the Debt Collection Improvement
Act of 1996. The Commission is adopting a rule adjusting for inflation
the maximum amount of civil monetary penalties under the Securities Act
of 1933, the Securities Exchange Act of 1934, the Investment Company
Act of 1940, the Investment Advisers Act of 1940, and certain penalties
under the Sarbanes-Oxley Act of 2002.

DATES: Effective Date: March 3, 2009.

FOR FURTHER INFORMATION CONTACT: Richard A. Levine, Assistant General
Counsel, at<PHONE_NUMBER>, or James A. Cappoli, Office of the General
Counsel, at<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Background

    This rule implements the Debt Collection Improvement Act of 1996
(``DCIA'').\1\ The DCIA amended the Federal Civil Penalties Inflation
Adjustment Act of 1990 (``FCPIAA'') \2\ to require each federal agency
to adopt regulations at least once every four years that adjust for
inflation the maximum amount of the civil monetary penalties (``CMPs'')
under the statutes administered by the agency.\3\
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    \1\ Public Law 104-134, 110 Stat. 1321-373 (1996) (codified at
28 U.S.C. 2461 note).
    \2\ 28 U.S.C. 2461 note.
    \3\ Increased CMPs apply only to violations that occur after the
increase takes effect.
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    A civil monetary penalty (``CMP'') is defined in relevant part as
any penalty, fine, or other sanction that: (1) Is for a specific
amount, or has a maximum amount, as provided by federal law; and (2) is
assessed or enforced by an agency in an administrative proceeding or by
a federal court pursuant to federal law.\4\ This definition covers the
monetary penalty provisions contained in the statutes administered by
the Commission. In addition, this definition encompasses the civil
monetary penalties that may be imposed by the Public Company Accounting
Oversight Board (the ``PCAOB'') in its disciplinary proceedings
pursuant to 15 U.S.C. 7215(c)(4)(D).\5\
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    \4\ 28 U.S.C. 2461 note (3)(2).
    \5\ The Commission may by order affirm, modify, remand, or set
aside sanctions, including civil monetary penalties, imposed by the
PCAOB. See Section 107(c) of the Sarbanes-Oxley Act of 2002, 15
U.S.C. 7217. The Commission may enforce such orders in federal
district court pursuant to Section 21(e) of the Securities Exchange
Act of 1934. As a result, penalties assessed by the PCAOB in its
disciplinary proceedings are penalties ``enforced'' by the
Commission for purposes of the Act. See Adjustments to Civil
Monetary Penalty Amounts, Release No. 33-8530 (Feb. 4, 2005) [70 FR
7606 (Feb. 14, 2005)].
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    The DCIA requires that the penalties be adjusted by the cost-of-
living adjustment set forth in Section 5 of the FCPIAA.\6\ The cost-of-
living adjustment is defined in the FCPIAA as the percentage by which
the U.S. Department of Labor's Consumer Price Index for all-urban
consumers (``CPI-U'') \7\ for the month of June for the year preceding
the adjustment exceeds the CPI-U for the month of June for the year in
which the amount of the penalty was last set or adjusted pursuant to
law.\8\ The statute contains specific rules for rounding each increase
based on the size of the penalty.\9\ Agencies do not have discretion
over whether to adjust a maximum CMP, or the method used to determine
the adjustment. Although the DCIA imposes a 10 percent maximum increase
for each penalty for the first adjustment pursuant thereto, that
limitation does not apply to subsequent adjustments.
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    \6\ 28 U.S.C. 2461 note (5).
    \7\ 28 U.S.C. 2461 note (3)(3).
    \8\ 28 U.S.C. 2461 note (5)(b).
    \9\ 28 U.S.C. 2461 note (5)(a)(1)-(6).
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    The Commission administers four statutes that provide for civil
monetary penalties: the Securities Act of 1933; the Securities Exchange
Act of 1934; the Investment Company Act of 1940; and the Investment
Advisers Act of 1940. In addition, the Sarbanes-Oxley Act of 2002
provides the PCAOB (over which the Commission has jurisdiction)
authority to levy civil monetary penalties in its disciplinary
proceedings.\10\ Penalties administered by the Commission were last
adjusted by rules effective February 14, 2005.\11\ The DCIA requires
the civil monetary penalties to be adjusted for inflation at least once
every four years. The Commission is therefore obligated by statute to
increase the maximum amount of each penalty by the appropriate
formulated amount.
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    \10\ 15 U.S.C. 7215(c)(4)(D).
    \11\ See 17 CFR 201.1003.
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    Accordingly, the Commission is adopting an amendment to 17 CFR Part
201 to add Sec.  201.1004 and Table IV to Subpart E, increasing the
amount of each civil monetary penalty authorized by the Securities Act
of 1933, the Securities Exchange Act of 1934, the Investment Company
Act of 1940, the Investment Advisers Act of 1940, and certain penalties
under the Sarbanes-Oxley Act of 2002. The adjustments set forth in the
amendment apply to violations occurring after the effective date of the
amendment.

II. Summary of the Calculation

    To explain the inflation adjustment calculation for CMP amounts
that were last adjusted in 2005, we will use the following example.
Under the current provisions, the Commission may impose a maximum CMP
of $1,275,000 for certain insider trading violations by a controlling
person. To determine the new CMP amounts under the amendment, first we
determine the appropriate CPI-U for June of the calendar year preceding
the year of adjustment. Because we are adjusting CMPs in 2009, we use
the CPI-U for June of 2008, which was 218.815. We must also determine
the CPI-U for June of the year the CMP was last adjusted for inflation.
Because the Commission last adjusted this CMP in 2005, we use the CPI-U
for June of 2005, which was 194.5.
    Second, we calculate the cost-of-living adjustment or inflation
factor. To

do this we divide the CPI for June of 2008 (218.815) by the CPI for
June of 2005 (194.5). Our result is 1.1250.
    Third, we calculate the raw inflation adjustment (the inflation
adjustment before rounding). To do this, we multiply the maximum
penalty amounts by the inflation factor. In our example, $1,275,000
multiplied by the inflation factor of 1.1250 equals $1,434,391.
    Fourth, we round the raw inflation amounts according to the
rounding rules in Section 5(a) of the FCPIAA. Since we round only the
increase amount, we calculate the increased amount by subtracting the
current maximum penalty amounts from the raw maximum inflation
adjustments. Accordingly, the increase amount for the maximum penalty
in our example is $159,391 (i.e., $1,434,391 less $1,275,000). Under
the rounding rules, if the penalty is greater than $200,000, we round
the increase to the nearest multiple of $25,000. Therefore, the maximum
penalty increase in our example is $150,000.
    Fifth, we add the rounded increase to the maximum penalty amount
last set or adjusted. In our example, $1,275,000 plus $150,000 yields a
maximum inflation adjustment penalty amount of $1,425,000.\12\
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    \12\ The adjustments in Table IV to Subpart E of Part 201
reflect that the operation of the statutorily mandated computation,
together with rounding rules, does not result in any adjustment to
one penalty. This particular penalty will be subject to slightly
different treatment when calculating the next adjustment. Under the
statute, when we next adjust these penalties, we will be required to
use the CPI-U for June of the year when this particular penalty was
``last adjusted,'' rather than the CPI-U for 2009.
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III. Related Matters

A. Administrative Procedure Act--Immediate Effectiveness of Final Rule

    Under the Administrative Procedure Act (``APA''), a final rule may
be issued without public notice and comment if the agency finds good
cause that notice and comment are impractical, unnecessary, or contrary
to public interest.\13\ Because the Commission is required by statute
to adjust the civil monetary penalties within its jurisdiction by the
cost-of-living adjustment formula set forth in Section 5 of the FCPIAA,
the Commission finds that good cause exists to dispense with public
notice and comment pursuant to the notice and comment provisions of the
APA.\14\ Specifically, the Commission finds that because the adjustment
is mandated by Congress and does not involve the exercise of Commission
discretion or any policy judgments, public notice and comment is
unnecessary.\15\
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    \13\ 5 U.S.C. 553(b)(3)(B).
    \14\ 5 U.S.C. 553(b)(3)(B).
    \15\ A regulatory flexibility analysis under the Regulatory
Flexibility Act (``RFA'') is required only when an agency must
publish a general notice of proposed rulemaking for notice and
comment. See 5 U.S.C. 603. As noted above, notice and comment are
not required for this final rule. Therefore, the RFA does not apply.
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    Under the DCIA, agencies must make the required inflation
adjustment to civil monetary penalties: (1) According to a very
specific formula in the statute; and (2) within four years of the last
inflation adjustment. Agencies have no discretion as to the amount of
the adjustment and have limited discretion as to the timing of the
adjustment, in that agencies are required to make the adjustment at
least once every four years. The regulation discussed herein is
ministerial, technical, and noncontroversial. Furthermore, because the
regulation concerns penalties for conduct that is already illegal under
existing law, there is no need for affected parties to have thirty days
prior to the effectiveness of the regulation and amendments to adjust
their conduct. Accordingly, the Commission believes that there is good
cause to make this regulation effective immediately upon
publication.\16\
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    \16\ Additionally, this finding satisfies the requirements for
immediate effectiveness under the Small Business Regulatory
Enforcement Fairness Act. See 5 U.S.C. 808(2); see also id.
801(a)(4).
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B. Cost-Benefit Analysis

    The Commission is sensitive to the costs and benefits that result
from its rules. This regulation merely adjusts civil monetary penalties
in accordance with inflation as required by the DCIA, and has no impact
on disclosure or compliance costs. The benefit provided by the
inflationary adjustment to the maximum civil monetary penalties is that
of maintaining the level of deterrence effectuated by the civil
monetary penalties, and not allowing such deterrent effect to be
diminished by inflation. Furthermore, Congress, in mandating the
inflationary adjustments, has already determined that any possible
increase in costs is justified by the overall benefits of such
adjustments.

C. Paperwork Reduction Act

    This rule does not contain any collection of information
requirements as defined by the Paperwork Reduction Act of 1995 as
amended.\17\
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    \17\ 44 U.S.C. 3501 et seq.
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D. Statutory Basis

    The Commission is adopting these amendments to 17 CFR Part 201,
Subpart E pursuant to the directives and authority of the DCIA, Public
Law 104-134, 110 Stat. 1321-373 (1996).

List of Subjects in 17 CFR Part 201

    Administrative practice and procedure, Claims, Confidential
business information, Lawyers, Securities.

Text of Amendment

0
For the reasons set forth in the preamble, part 201, title 17, chapter
II of the Code of Federal Regulations is amended as follows:

PART 201--RULES OF PRACTICE

Subpart E--Adjustment of Civil Monetary Penalties

0
1. The authority citation for part 201, Subpart E, is revised to read
as follows:

    Authority: 28 U.S.C. 2461 note.

0
2. Section 201.1004 and Table IV to Subpart E are added to read as
follows:

Sec.  201.1004  Adjustment of civil monetary penalties--2009.

    As required by the Debt Collection Improvement Act of 1996, the
maximum amounts of all civil monetary penalties under the Securities
Act of 1933, the Securities Exchange Act of 1934, the Investment
Company Act of 1940, the Investment Advisers Act of 1940, and certain
penalties under the Sarbanes-Oxley Act of 2002 are adjusted for
inflation in accordance with Table IV to this subpart. The adjustments
set forth in Table IV apply to violations occurring after March 3,
2009.

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       Table IV to Subpart E            Civil monetary penalty                        Maximum
------------------------------------    inflation adjustments                         penalty        Adjusted
                                    -----------------------------  Year penalty       amount          maximum
                                                                    amount was      pursuant to       penalty
         U.S. Code citation             Civil monetary penalty    last  adjusted       last           amount
                                             description                            adjustment
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Securities and Exchange Commission:  ...........................  ..............  ..............  ..............
    15 U.S.C. 77t(d)...............  For natural person.........            2001          $6,500          $7,500
                                     For any other person.......            2005          65,000          75,000
                                     For natural person/fraud...            2005          65,000          75,000
                                     For any other person/fraud.            2005         325,000         375,000
                                     For natural person/                    2005         130,000         150,000
                                      substantial losses or risk
                                      of losses to others.
                                     For any other person/                  2005         650,000         725,000
                                      substantial losses or risk
                                      of losses to others.
    15 U.S.C. 78ff(b)..............  Exchange Act/failure to                1996             110             110
                                      file information
                                      documents, reports.
    15 U.S.C. 78ff(c)(1)(B)........  Foreign Corrupt Practices--            1996          11,000          16,000
                                      any issuer.
    15 U.S.C. 78ff(c)(2)(C)........  Foreign Corrupt Practices--            1996          11,000          16,000
                                      any agent or stockholder
                                      acting on behalf of issuer.
    15 U.S.C. 78u-1(a)(3)..........  Insider Trading--                      2005       1,275,000       1,425,000
                                      controlling person.
    15 U.S.C. 78u-2................  For natural person.........            2001           6,500           7,500
                                     For any other person.......            2005          65,000          75,000
                                     For natural person/fraud...            2005          65,000          75,000
                                     For any other person/fraud.            2005         325,000         375,000
                                     For natural person/                    2005         130,000         150,000
                                      substantial losses to
                                      others/gains to self.
                                     For any other person/                  2005         650,000         725,000
                                      substantial losses to
                                      others/gain to self.
    15 U.S.C. 78u(d)(3)............  For natural person.........            2001           6,500           7,500
                                     For any other person.......            2005          65,000          75,000
                                     For natural person/fraud...            2005          65,000          75,000
                                     For any other person/fraud.            2005         325,000         375,000
                                     For natural person/                    2005         130,000         150,000
                                      substantial losses or risk
                                      of losses to others.
                                     For any other person/                  2005         650,000         725,000
                                      substantial losses or risk
                                      of losses to others.
    15 U.S.C. 80a-9(d).............  For natural person.........            2001           6,500           7,500
                                     For any other person.......            2005          65,000          75,000
                                     For natural person/fraud...            2005          65,000          75,000
                                     For any other person/fraud.            2005         325,000         375,000
                                     For natural person/                    2005         130,000         150,000
                                      substantial losses to
                                      others/gains to self.
                                     For any other person/                  2005         650,000         725,000
                                      substantial losses to
                                      others/gain to self.
    15 U.S.C. 80a-41(e)............  For natural person.........            2001           6,500           7,500
                                     For any other person.......            2005          65,000          75,000
                                     For natural person/fraud...            2005          65,000          75,000
                                     For any other person/fraud.            2005         325,000         375,000
                                     For natural person/                    2005         130,000         150,000
                                      substantial losses or risk
                                      of losses to others.
                                     For any other person/                  2005         650,000         725,000
                                      substantial losses or risk
                                      of losses to others.
    15 U.S.C. 80b-3(i).............  For natural person.........            2001           6,500           7,500
                                     For any other person.......            2005          65,000          75,000
                                     For natural person/fraud...            2005          65,000          75,000
                                     For any other person/fraud.            2005         325,000         375,000
                                     For natural person/                    2005         130,000         150,000
                                      substantial losses to
                                      others/gains to self.
                                     For any other person/                  2005         650,000         725,000
                                      substantial losses to
                                      others/gain to self.
    15 U.S.C. 80b-9(e).............  For natural person.........            2001           6,500           7,500
                                     For any other person.......            2005          65,000          75,000
                                     For natural person/fraud...            2005          65,000          75,000
                                     For any other person/fraud.            2005         325,000         375,000
                                     For natural person/                    2005         130,000         150,000
                                      substantial losses or risk
                                      of losses to others.
                                     For any other person/                  2005         650,000         725,000
                                      substantial losses or risk
                                      of losses to others.
    15 U.S.C. 7215(c)(4)(D)(i).....  For natural person.........            2005         110,000         120,000
                                     For any other person.......            2005       2,100,000       2,375,000
    15 U.S.C. 7215(c)(4)(D)(ii)....  For natural person.........            2005         800,000         900,000
                                     For any other person.......            2005      15,825,000      17,800,000
----------------------------------------------------------------------------------------------------------------

    Dated: February 25, 2009.

    By the Commission.
Elizabeth M. Murphy,
Secretary.
[FR Doc. E9-4379 Filed 3-2-09; 8:45 am]

BILLING CODE 8011-01-P


[Federal Register Volume 76, Number 156 (Friday, August 12, 2011)]
[Rules and Regulations]
[Pages 50133-50140]
[FR Doc No: 2011-20587]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[EPA-HQ-SFUND-1986-0005; FRL-9451-3]

National Oil and Hazardous Substances Pollution Contingency Plan;
National Priorities List: Deletion of the Pasley Solvents & Chemicals,
Inc. Superfund Site

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) Region 2 is
publishing a direct final Notice of Deletion of the Pasley Solvents &
Chemicals, Inc Superfund Site (Site), located in the Town of Hempstead,
Nassau County, New York, 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 deletion
is being published by EPA with the concurrence of the State of New
York, through the New York State Department of Environmental
Conservation (NYSDEC), 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 September 26, 2011
unless EPA receives adverse comments by September 12, 2011. 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-1986-0005, by one of the following methods:
     Web site: http://www.regulations.gov. Follow on-line
instructions for submitting comments.
     E-mail<EMAIL_ADDRESS>     Fax: To the attention of Sherrel Henry at<PHONE_NUMBER>.
     Mail: Sherrel Henry, Remedial Project Manager, U.S.
Environmental Protection Agency, Region 2, 290 Broadway, 20th Floor,
New York, New York 10007-1866.
     Hand delivery: Superfund Records Center, 290 Broadway,
18th Floor, New York, NY 10007-1866 (telephone:<PHONE_NUMBER>). 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-
1986-0005. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.

Docket

    All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statue. Certain other material, such
as copyrighted material, will be publicly available only in the hard
copy. Publicly available docket materials are available either
electronically in http://www.regulations.gov or in hard copy at: U.S.
Environmental Protection Agency, Region 2, Superfund Records Center,
290 Broadway, 18th Floor, New York, NY 10007-1866.
    Phone:<PHONE_NUMBER>.
    Hours: Monday to Friday from 9 a.m. to 5 a.m.
    Information for the Site is also available for viewing at the Site
Administrative Record Repositories located at: Levittown Library, 1
Bluegrass Lane, Levittown, New York 11756. Tel.<PHONE_NUMBER>.
    Hours: Monday through Friday: 9 a.m. through 9 p.m., Saturday: 9
a.m. through 5 p.m.

FOR FURTHER INFORMATION CONTACT: Sherrel D. Henry, Remedial Project
Manager, U.S. Environmental Protection Agency, Region 2, 290 Broadway,
20th Floor, New York, NY 10007-1866,<PHONE_NUMBER>, by e-mail at
<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 2 is publishing this direct final Notice of Deletion of
the Pasley Solvents & Chemicals, Inc Superfund Site (Site), from the
National Priorities List (NPL). The NPL constitutes Appendix B of 40
CFR part 300, which is the National 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). 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 September 26, 2011 unless EPA
receives adverse comments by September 12, 2011. 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 Pasley Solvents & Chemicals,
Inc Superfund Site and demonstrates how it meets the deletion criteria.
Section V discusses EPA's action to delete the Site from the NPL unless
adverse comments are received during the public comment period.

II. NPL Deletion Criteria

    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.

III. Deletion Procedures

    The following procedures apply to deletion of the Site:
    (1) EPA consulted with the State of New York 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 NYSDEC, 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, Anton
News (Three Village Times and the Floral Park Dispatch). The newspaper
notice announces the 30-day public comment period concerning the Notice
of Intent to Delete the Site from the NPL.
    (4) The EPA placed copies of documents supporting the proposed
deletion in the deletion docket and made these items available for
public inspection and copying at the Site information repositories
identified above.
    (5) If adverse comments are received within the 30-day public
comment period on this deletion action, EPA will publish a timely
notice of withdrawal of this direct final Notice of Deletion before its
effective date and will prepare a response to comments and continue
with the deletion process on the basis of the Notice of Intent to
Delete and the comments already received.
    Deletion of a site from the NPL does not itself create, alter, or
revoke any individual's rights or obligations. Deletion of a site from
the NPL does not in any way alter EPA's right to take enforcement
actions, as appropriate. The NPL is designed primarily for
informational purposes and to assist EPA management. Section
300.425(e)(3) of the NCP states that the deletion of a site from the
NPL does not preclude eligibility for future response actions, should
future conditions warrant such actions.

IV. Basis for Site Deletion

    The following information provides EPA's rationale for deleting the
Site from the NPL:

Site Background and History

    The Site, EPA ID No. NYD991292004, is located in the Town of
Hempstead in Nassau County, New York. The Site property measures 75
feet by 275 feet with a fenced boundary on the north, east and south
sides and is located at 565 Commercial Avenue, Town of Hempstead,
Nassau County, New York. The Site lies between the borders of the
political subdivisions of the Village of Garden City and Uniondale, in
the Town of Hempstead. A building and loading platform form the western
boundary of the Site at the adjacent property.
    From 1969 until 1982, the Site was occupied by the Pasley Solvents
and Chemicals Company (Pasley) and was used as a chemical distribution
facility. Activities at the Site included delivery and storage of
chemicals in tanks on-site, and transfer of the chemicals to 55-gallon
drums for delivery to customers. Some customers reportedly returned
used chemicals and empty drums to the Site. These chemicals included a
wide range of aromatics and halogenated aliphatic hydrocarbons,
solvents, ketones and alcohols. Commander Oil Corporation (Commander)
owned the Site prior to 1969 when the Site was used by Commander for
distribution of fuel oils.
    In 1980, Pasley applied for a New York State Department of
Environmental Conservation (NYSDEC) permit to store and remove
chemicals. The Nassau County Department of Health (NCDOH) collected
soil samples from the Site. Analyses of the samples indicated that the
soils were contaminated with volatile organic compounds (VOCs). In
1980, NCDOH referred the Site to NYSDEC and both agencies recommended
that Pasley submit a plan for a remedial investigation and cleanup. In
1981, Lakeland Engineering performed a limited well drilling and ground
water sampling program. Five on-property and one off-property
monitoring ground water wells were installed and ground water samples
were collected by Lakeland and the New York State Department of Health
(NYSDOH).

Contaminants were detected above State drinking water standards.
    The Site was proposed to the NPL in October 1984 (49 FR 40320) and
was listed on the NPL in June 1986 (51 FR 21054).
    After all remedial action at the site was completed; Plato Holding
LLC bought the property from Commander in August 2003 and concluded
negotiations with the Metropolitan Transit Authority (MTA) to utilize
the Site as a police station. In 2004, the Site was paved and an office
trailer was placed on concrete blocks. Plato Holding sold the property
to Yonah Reality in March 2007. It is Yonah Reality's intent to
continue to use the property as a police station.

Remedial Investigation and Feasibility Study (RI/FS)

    On August 19, 1988, EPA and Commander entered into an
Administrative Order on Consent, Index NO. II-CERCLA-80212 (the Order).
The Order required Commander to perform a Remedial Investigation/
Feasibility Study (RI/FS) to determine the nature and extent of
contamination at the Site, to develop and analyze cleanup alternatives
and to remove the 12 above-ground storage tanks located on the Site. In
November of 1988, Commander completed the tank removal. The RI was
performed by Metcalf and Eddy, Inc. for Commander in 1990. During the
RI subsurface soil samples, ground water samples and surface soil
samples were collected and analyzed. As part of the ground water
investigation eighteen ground water monitoring wells were installed.
The monitoring wells were clustered in six locations (three wells each,
screened at depths of 30, 60, and 90 feet). The ground water quality of
the aquifer underlying the Site, downgradient and upgradient of the
Site was assessed by two rounds of water quality sampling in 1990 and a
third round of partial sampling in 1991. The most prevalent VOC
detected in ground water during the RI was trans--1,2-dichloroethene at
a maximum concentration of 37,000 parts per billion (ppb). Samples
collected from upgradient off-site monitoring wells showed a maximum
level of 27 ppb of tetrachloroethene (PCE) (monitoring well location
MW-1S) and 15 ppb for trichloroethene (TCE) (monitoring well location
MW-1D). Benzene was also detected at a maximum level of 38 ppb
(monitoring well location MW-1l). Since a contaminant plume could not
be defined by plotting the Total Volatile Organic Compounds (TVOCs)
associated with the Site study area, a group of VOCs which were found
at the Site but which were not detected in upgradient well cluster well
MW-1 were chosen to define the plume associated with the Site
(identified as Site Index Compounds (SICs)). Through the use of the
index compounds, a well defined contaminant plume could be identified
for the Site.
    The SICs chosen to define the plume for the Site are the following:
chloroform, 1,1dichloroethene, 1,1-dichloroethane, trans-1,2-
dichloroethene, 1,1,1-trichloroethane, ethylbenzene, toluene,
chlorobenzene, and xylene. The SICs were found to contribute a major
part (99%) of the contamination found in the monitoring well cluster
located on-site (MW-2). Non-site index compounds acetone, benzene, TCE
and PCE, which were found in on-property wells and upgradient were also
monitored. However, the use of SICs does not imply that non-index
compounds are absent from the Site.
    The SIC plume for the 20 to 30-foot depth Upper Glacial aquifer
extended approximately 400 feet to the southwest, parallel to the
ground water flow direction and the contaminant plume was approximately
390 feet wide. The maximum level of SIC contamination detected was
37,000 parts per billion (ppb) for trans-1,2-dichloroethene, 7400 times
the Federal Maximum Contaminant Level (MCL) of 5 ppb. TCE, although not
part of the SIC plume, was also detected at a maximum concentration of
320 ppb, 64 times its MCL of 5 ppb. The SIC plume for the 50 to 60 foot
depth in the Lower Glacial aquifer was found to be much smaller, and
centered on MW-4I, directly downgradient of the Site. The maximum level
of SIC contamination in this portion of the plume was 15 ppb for trans-
1,2-dichloroethene. TCE was also detected at 15 ppb. No SIC
contamination was found directly downgradient or on-site in the 80 to
90 foot depth in the Upper Magothy aquifer.
    Fifty (50) surface soil grab samples were collected and analyzed
for VOCs. These samples were collected from an approximate 30-foot grid
pattern at a depth of 6 to 12 inches below grade. Samples were then
collected and composited for metals and semi-volatile organic analyses.
Each composite sample consisted of soil from five adjacent discrete
sample locations.
    Data from the surface soil samples revealed elevated levels of VOCs
originating from three primary locations. The concentrations of TVOCs,
primarily PCE and trans-1,2-dichloroethene, were detected in
concentrations of 1,000 ppb up to concentrations of 603,000 ppb.
Additionally, total semi-volatile organic compounds were detected in
composite samples collected from ten locations. The highest
concentrations of total semi-volatiles were detected in composite
samples 8 and 9 (204,000 ppb and 126,500 ppb, respectively) collected
on the eastern edge of the Site.
    Subsurface samples were also collected from eight locations on-site
and five locations off-site. On-site, two samples were collected from
each of eight borings at depths of 12 to 14 feet and 23 to 25 feet (or
the first two feet below the water table). A total of sixteen samples
were collected. Elevated levels of total VOCs (greater than 1,000 ppb)
were detected in six of the sixteen samples.
    Based on the results of the RI report, a risk assessment was
performed for the Site. The risk assessment determined that although
the risk posed by the soils are within EPA's acceptable risk criteria,
contaminants in the soils, if not addressed, would continue to
contribute to further contamination of the ground water, resulting in a
potential future risk from ground water ingestion.
    A FS was then completed to identify and evaluate remedial
alternatives that would be effective and implementable in addressing
the contamination, based on site-specific conditions. The FS Report was
developed based on the ``Guidance for conducting Remedial Investigation
and Feasibility Studies under CERCLA.'' Remedial alternatives were
developed to satisfy the following Remedial Action Objectives (RAOs)
for the Site:
     The soils will be treated until the soil cleanup
objectives are met or until no more VOCs can be effectively removed
from the unsaturated zone.
     Contaminated groundwater will be treated to meet either
Federal or state groundwater standards except in those cases where
upgradient concentrations are above such standards.

Selected Remedy

    Based upon the results of the RI/FS, on April 24, 1992, a Record of
Decision (ROD) was signed, selecting a remedy for the Site. The major
components of the 1992 ROD included the following:
     Treatment of approximately thirteen thousand (13,000)
cubic yards of contaminated soil by soil vacuuming (also referred to as
soil vapor extraction), and/or by soil flushing;
     Disposal of treatment residuals at a RCRA Subtitle C
facility;
     Remediation of the ground water by extraction/metals
precipitation/air stripping with vapor phase granular activated carbon
(GAC) polishing;

     Pumping of contaminated ground water from three extraction
wells at a combined flow rate of approximately 450 gallons per minute;
     Implementation of a long-term monitoring program to track
the migration and concentrations of the contaminants of concern; and
     Implementation of a monitoring program that would include
the collection and analysis of the influent and effluent from the
treatment systems.
    After the ROD was issued, EPA sent notice letters and a draft
Consent Decree (CD) to Commander and to the operators of the Site
(Robert Pasley and Pasley Solvents and Chemicals Company) for
implementation of the remedy selected in the ROD. These parties
declined to perform the selected remedial action. Counsel for Commander
contended that Commander was not financially able to implement the
remedy which was estimated to cost 14 million dollars. As a result, in
1993 EPA obligated Superfund monies for performance of the remedial
design (RD) by Ebasco Services, Inc., an EPA contractor.
    Subsequently, Commander notified EPA that it believed that an
innovative technology, air sparging modification to the ground water
remedy would be an effective means to remediate the ground water, at
approximately half the cost of the selected remedy. EPA evaluated all
available information on the air sparging technology and gave approval
for Commander to submit a work plan to conduct a pilot study to
evaluate the effectiveness of air sparging at the Site. The results of
the pilot study, which were documented in the Air Sparging (AS)/Soil
Vapor Extraction (SVE) Pilot Test Study Report, demonstrated that air
sparging would be an effective means of remediating the ground water at
the Site.
    As a result, EPA determined that AS was a viable technology in
combination with SVE to clean up the ground water and soils at the Site
and subsequently on May 22, 1995, EPA issued a ROD Amendment selecting
the following remedy:
     Remediation of the ground water by AS in the contaminated
saturated zone underlying the property;
     Remediation of the on-property unsaturated zone soils and
collection of AS vapors by SVE;
     Interception and remediation of the off-property ground-
water plume by AS accompanied by SVE in the area of Cluster Park, a
local park located near the facility;
     Implementation of a long-term ground-water monitoring
program to track the migration and concentrations of the contaminants
of concern; and
     Implementation of a remediation system monitoring program
that would include vapor monitoring, ground-water monitoring and soil
sampling.
    The ROD and ROD Amendment were intended to remediate the soil so
that the Site property, which does not currently have permanent
structures present, could be used without restriction. Therefore, no
Institutional Controls (ICs) were required for the selected remedy at
the Site.

Response Actions

    In 1995, EPA concluded CD negotiations with the PRPs related to the
performance of the remedial design, remedial construction, operation,
maintenance, and monitoring of the remedy selected in the ROD
Amendment. On January 26, 1996, the CD was entered in United States
District Court (approved by the Judge) for the Eastern District of New
York.
    CRA Services was selected by Commander to design, construct, and
operate the remedial system. EPA approved the RD in April 1997.
Construction of the remedy started on June 26, 1997 and was completed
on October 21, 1997. Construction activities are summarized in the
Remedial Action Report, dated July 14, 1998. The Remedial Action Report
documented that the work was performed in accordance with the approved
design, consistent with the decision documents and that appropriate
construction standards and QA/QC procedures were used.
    The remediation system consisted of two SVE/AS systems: One on the
Pasley property; and one off the Pasley property in Cluster Park. The
system worked by introducing air into the aquifer to volatilize organic
compounds and capture the organic vapors. The vapors from the on-
property system were treated with GAC, prior to discharge. Rotary-vane
AS compressors and rotary-lobe SVE blowers, housed in the on-property
treatment building, were used to ``push'' and ''pull'' the air and soil
vapor from both systems.
    Major components of the constructed remedy include:

On-Property

     19 AS wells, 2-inch polyvinyl chloride (PVC), screened 50-
52-feet below ground surface (bgs)
     Eight shallow SVE wells, 2-inch PVC, screened 5-10 feet
bgs
     Eight deep SVE wells, 4-inch PVC, screened 15-20 feet bgs
     Five monitoring well clusters
     Buried piping to each AS/SVE well
     24 x 24-ft treatment building
     AS and SVE blowers, piping and controls
     GAC vapor treatment system
     Condensate collection and GAC treatment system
     Re-infiltration gallery
     Off-property AS and SVE blowers, piping, controls

Off-Property

     Fifteen AS wells, 2-inch PVC, screened 50-52 feet bgs
     Five SVE wells, 2-inch PVC, screened 15-20 feet bgs
     Six monitoring well clusters
     Buried piping to each AS/SVE well
     Buried distribution vault and controls
    The AS/SVE system operated from October 1997 to October 2002. The
system was shut down when monitoring data indicated that groundwater
and soil cleanup levels specified in the 1995 ROD had been met. The
Notice of Completion and Final Operation and Maintenance (O&M) Report
were submitted by Commander in 2003. In January 2004, post remediation
monitoring began to ensure site related contamination had been
effectively remediated.

Cleanup Goals

    Consistent with the ROD and ROD Amendment, the site-specific ground
water and soil cleanup goals are summarized in Table 1 below.

                                 Table 1
------------------------------------------------------------------------
                                                            Recommended
                                            Groundwater    soil cleanup
               Contaminant                  cleanup goal    goals (ppm)
                                           ([mu]g/L) \1\        \2\
------------------------------------------------------------------------
Chloroform...............................            7              0.3
1,1-Dichloroethene.......................            5              0.4
1,1-Dichloroethane.......................            5              0.2

Trans-1,2-Dichloroethene.................            5              0.3
1,1,1-Trichloroethane....................            5              0.8
Ethylbenzene.............................            5              5.5
Toluene..................................            5              1.5
Chlorobenzene............................            5              1.7
Xylene...................................            5              1.2
Acetone..................................           50              0.2
Benzene..................................            0.7            0.06
Tetrachloroethene........................            5              1.4
Trichloroethene..........................            5              0.7
VOCs (total).............................          N/A             10
------------------------------------------------------------------------
\1\ Maximum Contaminants Levels (MCLs).
\2\ NYSDEC Technical and Administrative Guidance Memorandum (TAGM) 446:
  Determination of Soil Cleanup Objective and Cleanup Levels, Rev Jan
  1994.

    As stated in the RAO described above, contaminated groundwater was
treated to meet either Federal or state groundwater standards (MCLs)
except in those cases where upgradient concentrations are above such
standards. The upgradient groundwater contaminants are acetone, TCE,
benzene and PCE.
Soils
    When the concentrations of vapors appeared to be stabilizing, soil
sampling was conducted to assess remedial progress. The soil sampling
was completed in July 2000. A total of 12 soil borings were taken at
the Site. It should be noted that sampling took into account the three
primary locations of elevated concentration identified in the RI. The
samples submitted for analysis were taken from the interval with the
highest detected concentration of VOCs (measured by a photo ionization
detector (PID)) in each boring. The results indicated that an area near
MW-2S (BH-12 area) required additional treatment. Contingency measures
were implemented in order to decrease the concentrations of SICs
(specifically xylene) below cleanup levels. Contingency measures
included shutting off the east side air sparging wells and diverting
air to the area around MW-2S. In addition, inorganic nutrients in the
form of a commercial garden fertilizer (Miracid 30:10:10) were added to
the west side well in an attempt to accelerate biological activity for
further chemical reduction, and two more AS wells were installed in the
area.
    In April 2003, when system monitoring no longer detected VOCs in
the west side wells, soil sampling was again conducted. This effort was
focused in the area near MW-2S. The results showed concentrations below
the cleanup objectives.
Groundwater
    Four on-site ground water monitoring wells and seven down gradient
monitoring wells were monitored over the 5-year SVE/AS operation period
(from 1997 to 2002). A total of 19 rounds of ground water samples were
taken during that period. Samples were analyzed for SICs as described
above. In addition to the SICs, acetone, TCE, benzene and PCE were
included in each analysis because they were also detected on-site.
Collectively the SICs and these four other compounds were described as
the total volatile organic index compounds (TVOICs). The use of SICs
and TVOICs provided a means of ensuring that site related contamination
was monitored and provided the ability to differentiate site related
contamination from those up gradient contaminants believed to be moving
through the site. Ground water monitoring was performed prior to the
start of operation of the treatment system, during operation of the
system and again during the Post Remediation Monitoring (PRM) phase.
During each phase, the number of wells monitored and frequency of
monitoring varied per the monitoring plans.
    The soils at the Site were identified as a source of contamination
to the ground water. Specific cleanup levels in soils were specified in
the ROD Amendment. The remedial action objectives specified in the ROD
were met as demonstrated in soil sample results taken in July 2000 and
April 2003.
    In order to demonstrate restoration of groundwater and soil
contamination in the source area for site-related contamination, it was
assumed that if SVE/AS effectively removed all source material, then
concentrations down gradient of the first line of sparge wells would
have similar concentrations of SICs and TVOICs during remediation and
during PRM because all VOC contamination (both SIC and TVOICs) in the
saturated zone would be addressed by the system. To evaluate this
assumption, results from ground water monitoring wells in this area
(MW-9724 and MW-9725), were compared based on concentrations of SICs
and TVOICs over time.
    As shown in Table 2 below, monitoring wells, MW-9724 and MW-9725
had comparable concentrations of SICs and TVOICs from February 2000
through May 2002 during active SVE/AS operation. Over this time, well
MW-9724 had concentration of SICs in 2/2000 of 197 ppb and
concentrations of TVOICs of 205 ppb. Samples taken in 5/2002 showed
declines from the concentrations in 2/2000 to 0 ppb SICs and 1 ppb
TVOIC. Further support is provided from evaluation of the data from
well MW-9725 where the concentrations in 2/2000 of SIC were 356 ppb and
the concentrations of TVOIC were 360 ppb. Declines were found in 5/2002
where the concentration of SIC was 9 ppb and for TVOIC was 10 ppb.

 Table 2--Comparison of Well MW-9724 and MW-9725 Data to Demonstrate Consistency in Concentrations Between SICs
                                                    and TVOIC
----------------------------------------------------------------------------------------------------------------
                                      MW-9724 SIC        MW-9724 TVOIC        MW-9725 SIC        MW-9725 TVOIC
            Time line               concentrations      concentrations      concentrations      concentrations
----------------------------------------------------------------------------------------------------------------
02/2000.........................  197 ppb...........  205 ppb...........  356 ppb...........  360 ppb.
06/2001.........................  7 ppb.............  12 ppb............  107 ppb...........  109 ppb.
05/2002.........................  0 ppb.............  1 ppb.............  9 ppb.............  10 ppb.
----------------------------------------------------------------------------------------------------------------

    These results demonstrate that any source material in the saturated
zone was addressed for both SICs and any site related TVOICs during
system operation. This is further supported by the fact that
confirmatory sampling of on-site soils showed that all contaminants had
achieves the cleanup objectives specified in the ROD and ROD amendment.
    Next, in order to verify the ROD Assumptions that upgradient
contamination (particularly TCE and PCE) were present at the Site, pre-
ROD, during the Remedial Action (RA), and Post RA, groundwater
monitoring results during these three phases were reviewed and
evaluated.
    Pre-ROD Determination. The RI/FS documented TCE and PCE at
concentrations of 15 ppb and 27 ppb, respectively in an upgradient well
(MW-1). The levels of TCE and PCE fluctuated during the RI/FS. Sample
results from other on-site wells indicated concentrations lower than
those found in the upgradient well. Based on this finding, further
investigations were conducted at other locations within this area
(outside of the site boundaries, as defined) as described below.
    The Roosevelt Field, a former airfield that is now a large shopping
mall located approximately 2000 feet north of the Pasley site, was
identified as a potential source of PCE and TCE at the Pasley site
during the RI/FS. Investigations performed at the Roosevelt field site
identified three volatile organic ground water contamination plumes of
TCE and PCE. Two of the contamination plumes exist in the Upper Glacial
aquifer, and the third is present in both the Upper Glacial aquifer and
the Magothy Formation. The Upper Glacial aquifer plumes are at depths
similar to the Pasley SIC plume. These plumes were reported in 1986 to
extend at least 1,000 feet to the south southwest of Roosevelt Field,
and within 400 feet of the Pasley Site. Specifically, the 1992 ROD
Declaration of Statutory Determinations section stated that ``Due to
the existence of an upgradient source of contamination, the selected
ground water remedy, by itself, will not meet chemical-specific ARARs
nor be capable of restoring the area ground water to applicable ground
water quality standards until these upgradient source areas are
removed''.
    During RA. Groundwater monitoring was conducted over the five year
SVE/AS operation period at the Pasley site. The results of ground water
monitoring during this period demonstrate the ROD assumption that up
gradient contamination (particularly TCE and PCE) were present during
RA. During the RA, MW-1I upgradient of the Site showed consistent
elevated TVOIC concentrations. Between 1998 and 2001, TVOIC
concentrations ranged from 9 to 204 ppb. SIC concentrations ranged from
2 to 32 ppb. Therefore, throughout the period of operation, TVOIC
concentrations accounted for a majority of the contamination found
during monitoring events. The consistently low presence of SICs
indicate that site-related contamination did not impact this well.
These results conclude that directly upgradient of the remediation
system, VOC contamination was consistently flowing underneath the
source area being remediated.
    Prior to remediation the SICs represented 99% of the TVOICs present
in MW-2S located on the western edge of the source area. Results for 13
of the next 15 sampling events (up until the 2002 sampling event)
similarly showed the percentage of SICs as greater than 90% of the
TVOICs present. These results contrasted significantly from those for
the upgradient well MW-1I where the SICs represented less than 10% of
the TVOICs in 6 of 8 sampling events clearly indicating that there was
an upgradient source of non-site index compounds. However, by the time
the remediation was complete, the percentage of SICs present in MW-2S
was similar to that typically present in MW-1I (i.e., less than 10%) as
the SICs concentration was reduced to 2 ppb and the TVOICs were present
at 22 ppb. This data also indicates, at the end of remediation, even
though SIC had been addressed, levels of other VOCs continued to be
present. This data concludes that VOCs that were not site-related
continued to impact the groundwater being remediated. See Table 3,
below.

  Table 3--Comparison of SIC and TVOIC Concentration Between On-Site Groundwater Monitoring Well MW-2S \3\ and
                                              Upgradient Well MW-1I
----------------------------------------------------------------------------------------------------------------
                                                     On-site wells                     Upgradient wells
                                         -----------------------------------------------------------------------
                                                               Total MW-2S
                Time Line                     MW-2S SIC           TVOIC           MW-1I SIC        MW-1I TVOIC
                                           concentrations    concentrations    concentrations    concentrations
                                                (ppb)             (ppb)             (ppb)             (ppb)
----------------------------------------------------------------------------------------------------------------
1997--Prior to Start of RA..............              6914              7013                NA                NA
8/1998..................................              1013              1046                 2               101
8/2000..................................               890               937                 9               178
6/2001..................................               328               335                 8               183
5/2002..................................                88               288                NA                NA
1/2004..................................                 2                22  ................  ................
8/2005 \4\..............................                 7                32                NA                NA
----------------------------------------------------------------------------------------------------------------
\3\ MW-2S--most contaminated on site ground water monitoring well.

\4\ Toluene was detected at elevated concentrations in all samples collected but was found to be a laboratory
  contaminant; therefore the values were not included.

    The monitoring data for off-property monitoring wells also
demonstrate the success of the remedy. Seven off-property wells,
located approximately 400 feet down gradient of the Site, were
monitored over the five-year O&M period. As described in the Remedial
System Overview (above), four off-site monitoring wells (MW-9721, MW-
9724, MW-9725, and MW-4S) were located upgradient of the SVE/AS off-
site system. The three remaining wells (MW-9720, MW-9722, and MW-9723)
were located downgradient of the SVE/AS off-site system.
    Upgradient wells MW-9724, MW-9725, and MW-4S had levels of SICs and
TVOICs that were elevated during the first three years of O&M. These
elevated levels for both SICs and TVOICs were reduced once contaminant
levels on-property were reduced by the on-site treatment efforts
indicating that the system effectively addressed all VOC contamination
within the treatment zone. In addition, the declining SIC
concentrations indicate that no additional on-site source material in
the saturated zone is contributing to the groundwater contamination
downgradient of the source area SVE/AS system. Once remediation
started, no SICs or TVOIC contamination was detected in monitoring
wells down gradient of the off-site SVE/AS system (MW-9722 or MW-9723).
    Two monitoring wells (MW-9720 and MW-9721) were located
downgradient of the treatment systems but were located hydraulically
sidegradient of the treatment area. It was assumed, if groundwater
flowing on site was affected by upgradient sources, these wells would
show fluctuating levels of TVOIC concentration but would not have SIC
concentrations above cleanup levels. MW-9720 showed a fluctuation in
TVOIC and no SICs readings throughout the entire 5 year operations
monitoring period. In addition, monitoring well MW-9721 also showed
consistent fluctuation in the TVOIC numbers and limited SICs numbers.
The fluctuation in the TVOIC and the lack of SICs in monitoring wells
(MW-9720 and MW-9721) indicate that the contamination detected was not
originating from the Site.
    These results indicate that the treatment system was effectively
treating the contamination originating from the Site by the reduction
of SIC concentration in the onsite monitoring well MW-2S and the
downgradient monitoring wells (MW-9724, MW-9725, MW-4S, MW-9722 and MW-
9723) to the cleanup levels indicated in the ROD. Finally, data from
MW-2S in the source area, upgradient well MW-1I, and downgradient/
sidegradient wells MW-9720 and MW-9721, show persistent TVOIC
concentrations in both on-site, upgradient, and sidegradient wells
during the operation period supporting the ROD assumption that PCE and
TCE contamination were coming on site from upgradient sources.
    During PRM. Prior to the start of the post remediation monitoring,
the upgradient monitoring well (MW-1) located on private property was
destroyed and could not be sampled. During PRM only one on-site
monitoring well (MW-2S) and three downgradient monitoring wells (MW-
9720, MW-9722, and MW-9723) were monitored. When evaluating the PRM
data, it is important to note that the 2/9/2005 sampling event is an
anomaly of high concentrations due to laboratory contamination. These
results were not evaluated in this analysis.
    During the first two PRM sampling rounds (January and July 2004),
the analytical results for samples collected from MW-2S indicated that
TCE and PCE and all SICs were at or below MCLs. However, in the next
three sampling events in 2005, the concentrations of PCE increased
above MCLs going to 22 ppb to 170 ppb and then dropping down to an
average concentration of 35 ppb in the last round of sampling in the
summer of 2005. During those same sampling events, TCE concentrations
were 4 ppb, 58 ppb and then an average of 9 ppb in the last round of
sampling. It is believed that this spike and then steady decline in
concentrations is attributable to an up gradient source. Similar slugs
of contamination have been seen moving through other locations used for
monitoring the Upper Glacial aquifer on Long Island; these observations
are not surprising given the fact that the groundwater generally moves
greater than 1 foot a day in this aquifer.
    During the PRM sampling rounds, downgradient wells showed limited
TVOIC contamination. All three wells showed no rebound in SIC. TVOIC
contamination in MW-9722 fluctuated during this two year sampling
period. The PRM phase monitoring confirmed that all site-related
contamination in soils and groundwater had been remediated to cleanup
levels specified in the ROD expect for those VOCs which were coming on
site from off-site sources.
    Conclusion. EPA believes that Site related contamination was
remediated to ground water restoration standards. The objectives of the
1992 ROD, as modified by the 1995 ROD Amendment, were to address the
source of contamination at the Site, the contamination in the surface
soils, and ground water contamination attributable to the Pasley Site.
By treating the VOC-contaminated soils and ground water by means of
SVE/AS, the Pasley Site contaminants were adequately addressed by the
remedial actions to cleanup levels specified in the ROD. Although
ground water sampling data indicate regional contamination as evidenced
by persistent PCE and TCE contamination in wells upgradient and
sidegradient of the SVE/AS system before, during and after operation,
the objectives of the ROD and the ROD Amendment were met.

Operation and Maintenance

    The O&M Manual was approved by EPA in November 1997. The O&M manual
documented the information and procedures necessary to allow for
effective and efficient operation of the remedial system constructed at
the Site. In accordance with the CD and the O&M Manual, the O&M period
was to be performed for a minimum of five years to be followed by a PRM
period. O&M activities were initiated in November 1997. During the
operation of the AS/SVE system, the vapor from each of sixteen on-
property and five off-property extraction wells were monitored on a
monthly basis. Air discharge, prior to carbon treatment, from the SVE
system was monitored on a monthly basis in order to demonstrate the
effectiveness of the SVE system to remove VOCs from soil. Ground water
monitoring wells were sampled quarterly from November 1997 through
October 2000 and semi-annually from November 2000 through March 2003.
    The Notice of Completion and Final O&M Report were submitted by
Commander in 2003. The report indicated that SICs have met the cleanup
standards in ground water and all COCs have met the cleanup standards
in soil as specified in the ROD and ROD Amendment. Accordingly, EPA
determined that the operation and maintenance was complete, and the
Site could progress to the PRM phase. The PRM phase monitoring
confirmed that all site-related contamination in soils

and ground water had been remediated to cleanup levels specified in the
ROD expect for those VOCs which were coming on site from off-site
sources. Confirmatory sampling has indicated that all site related
contaminants have been remediated to cleanup levels that allow for
unlimited use and unrestricted exposure, therefore, no CERCLA O&M
activities are necessary.

Five-Year Review

    The first five-year review for the Site was completed on August 5,
2004, pursuant to OSWER Directive 9355.7-03B-P. That review, conducted
after the RA had been completed and O&M, and monitoring activities had
commenced, determined that the RA as designed and constructed pursuant
to the ROD Amendment, was performing satisfactorily and that the remedy
implemented was protective of human health and the environment. A
second five-year review for the Site was completed on July 23, 2009.
That review, conducted after the RA and all O&M and Post Remediation
Monitoring period activities were completed, determined that the remedy
implemented for the Site is protective of human health and the
environment in the short-term.
    The second five year review made a determination that the remedy
for the Site was protective in the short-term because questions arose
during the performance of the five year review concerning the adequacy
of the data set that was being used in the evaluation of the soil vapor
intrusion pathway. Since there was no building on the Site during the
implementation of remedial activities, the vapor intrusion pathway had
not been evaluated. In response to this concern, EPA's contractor
collected 10 soil gas samples from beneath the asphalt parking lot on
January 9 and 12, 2006. EPA Region 2 soil vapor intrusion pathway
typically recommends collecting sub-slab or indoor air samples.
However, that was not possible since the only structure at the Site, an
office trailer, does not have a basement or slab. Therefore, sub-slab
sampling could not be performed and only soil gas sampling was
conducted. A preliminary evaluation of the soil gas data collected at
the Site in 2006 identified three of the ten samples at concentrations
of potential concern.
    To address this potential vapor intrusion pathway, the second five-
year review suggested that the Agency issue an explanation of
significant differences (ESD) to document a final decision to include
institutional controls in the form of a ``red-flag'' in the computer
system of the Town of Hempstead Building Department as part of the
overall remedy for the Site. The ``red flag'' is intended to provide
notice of a potential vapor intrusion problem to anyone seeking a
construction permit and provide notice to EPA that a permit is being
sought to erect a building on the Site. Implementation of this action
by the Town of Hempstead Building Department would ensure that before a
building permit is granted, the owner would either have to agree to
install a soil vapor mitigation system or demonstrate through sampling
that a soil vapor mitigation system is not needed. Since the issuance
of the second five-year review, EPA has determined that the vapors
detected at the Site are from an off-site source and, therefore, an ESD
was deemed not to be necessary and CERCLA action is not appropriate.
However, the five-year review concluded the institutional control is
necessary for the property and currently remains in place. EPA is
satisfied that the town notification procedure will adequately address
any future vapor intrusion issues at the former site under state
authority. Therefore, the Site is protective of human health and the
environment.
    Since it has been determined that the source of vapors is not
related to the CERCLA release, it has been determined that five-year
reviews are no longer necessary. The 2009 five-year review was the
final review for the Site.

Community Involvement

    Public participation activities for this Site have been satisfied
as required in CERCLA Section 113(k), 42 U.S.C. 9613(k), and Section
117, 42 U.S.C. 9617. The RODs were subject to a public review process.
All other documents and information which EPA relied on or considered
in recommending this deletion are available for the public to review at
the information repositories.

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

    All of the completion requirements for this Site have been met, as
described in the August 4, 2011 Final Close-Out Report. The State of
New York, in an August 4, 2011 letter concurred with the proposed
deletion of this Site from the NPL.
    The NCP specifies that EPA may delete a site from the NPL if ``all
appropriate Fund-financed response under CERCLA has been implemented,
and no further response action by responsible parties is appropriate.''
40 CFR 300.425(e)(1)(ii). EPA, with the concurrence of the State of New
York, through NYSDEC, believes that this criterion for deletion has
been met. Consequently, EPA is deleting this Site from the NPL.
Documents supporting this action are available in the Site files.

V. Deletion Action

    The EPA, with concurrence of the State of New York through the
Department of Environmental Conservation, 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 September 26, 2011 unless EPA receives adverse comments by
September 12, 2011. 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: August 5, 2011.
Judith A. Enck,
Regional Administrator, EPA, Region 2.

    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 the entry
for ``Pasley Solvents & Chemicals, Inc.'' ``Hempstead, New York''.

[FR Doc. 2011-20587 Filed 8-11-11; 8:45 am]
BILLING CODE 6560-50-P