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Federal Register Notice

43778 - 43784 Federal Register / Vol. 54, No. 206 / Thursday, October 26, 1989 / Proposed Rules

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43778 - 43784 Federal Register / Vol. 54, No. 206 / Thursday, October 26, 1989 / Proposed Rules

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300
[FRL 3675-2]

National Priorities List for Uncontrolled Hazardous Waste Sites; Proposed Update No. 10

AGENCY: Environmental Protection Agency.
ACTION:  Proposed rule.

SUMMARY:

The Environmental Protection Agency ("EPA") is proposing the tenth major update to the National Priorities List ("NPL"). The NPL is Appendix B to the National Oil and Hazardous Substances Pollution Contingency Plan ("NCP"), which was promulgated on July 16, 1982, pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"). CERCLA has since been amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA") and is implemented by Executive Order 12580 (52 FR 2923, January 29, 1987). CERCLA requires that the NCP include a list of national priorities among the known releases or threatened releases of hazardous substances, pollutants, or contaminants throughout the United States, and that the list be revised at least annually. The NPL, initially promulgated on September 8, 1983 (48 FR 40658), constitutes this list.

This update proposes to add 25 new sites to the NPL, including 2 Federal facility sites. These sites are being proposed because they meet the eligibility requirements and listing policies of the NPL. This notice provides the public with an opportunity to comment on placing these sites on the NPL.

This proposed rule brings the number of proposed NPL sites to 238, 65 of them in the Federal section; 981 sites are on the final NPL, 52 of them in the Federal section. Final and proposed sites now total 1,219.

DATES:

Comments must be submitted on or before December 26, 1989.

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ADDRESSES:

Comments should be mailed, in triplicate, to:

Larry Reed
Acting Director, Hazardous Site Evaluation Division (Attn: NPL Staff)
Office of Superfund Remediation Technology Innovation (0S-230)
U.S. Environmental Protection Agency
401 M Street, SW.
Washington, DC 20460

Addresses for the Headquarters and Regional dockets are provided below. For further details on what these dockets contain, see the "Public Comment Period" in section I of the SUPPLEMENTARY INFORMATION portion of this preamble.

Tina Maragousis
Headquarters, U.S. EPA CERCLA Docket Office
Waterside Mall
401 M Street, SW.
Washington, DC 20460
202/382-3046

Evo Cunha
Region 1
U.S. EPA Waste Management Records Center, HES-CAN 6
J.F. Kennedy Federal Building
Boston, MA 02203
617/565-3300

U.S. EPA
Region 2
Document Control Center, Superfund Docket
26 Federal Plaza, 7th Floor, Room 740
New York, NY 10278
Latchmin Serrano, 212/264-5540
Ophelia Brown, 212/264-1154

Diane McCreary
Region 3
U.S. EPA Library, 5th Floor
841 Chestnut Building
9th & Chestnut Streets
Philadelphia, PA 19107
215/597-0580

Gayle Alston
Region 4
U.S. EPA Library, Room G-6
345 Courtland Street, NE.
Atlanta, GA 30365
404/347-4216

Cathy Freeman
Region 5
U.S. EPA, 5 HS-12
230 South Dearborn Street
Chicago, IL 60604
312/886-6214

Deborah Vaughn-Wright
Region 6
U.S. EPA, Mail Code 6H-MA
1445 Ross Avenue
Dallas, TX 75202-2733
214/655-6740

Brenda Ward
Region 7
U.S. EPA Library
726 Minnesota Avenue
Kansas City, KS 66101
913/236-2828

Dolores Eddy
Region 8
U.S. EPA Library
999 19th Street, Suite 500
Denver, CO 80202-2405
303/293-1444

Linda Sunnen
Region 9
U.S. EPA Library, 6th Floor
215 Fremont Street
San Francisco, CA 94105
415/974-8082

David Bennett
Region 10
U.S. EPA, 9th Floor
1200 6th Avenue, Mail Stop HW-093
Seattle, WA 98101
206/442-2103

FOR FURTHER INFORMATION CONTACT:

Martha Otto
Hazardous Site Evaluation Division, Office of Superfund Remediation Technology Innovation (OS-230)
U.S. Environmental Protection Agency
401 M Street, SW.
Washington, DC 20460
or the Superfund Hotline, Phone (800) 424-9346 (or 382-3000 in the Washington, DC, metropolitan area).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction
II. Pupose and Implementation of the NPL
III. NPL Update Process
IV. Statutory Requirements and Listing Policies
V. Contents of Proposed NPL Update #10
VI. Regulatory Impact Analysis
VII. Regulatory Flexibility Act Analysis

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I. Introduction

Background

In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. sections 9601-9657 ("CERCLA" or the "Act") in response to the dangers of uncontrolled or abandoned hazardous waste sites. CERCLA was amended on October 17, 1986, by the Superfund Amendments and Reauthorization Act ("SARA"), Public Law No. 99-499, stat. 1613 et seq. To implement CERCLA, the Environmental Protection Agency ("EPA" or "the Agency") promulgated the revised National Oil and Hazardous Substances Pollution Contingency Plan ("NCP"), 40 CFR Part 300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA section 105 and Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP, further revised by EPA on September 16, 1985 (50 FR 37624) and November 20, 1985 (50 FR 47912), sets forth guidelines and procedures needed to respond under CERCLA to releases and threatened releases of hazardous substances, pollutants, or contaminants. On December 21, 1988 (53 FR 51394), EPA proposed revisions to the NCP in response to SARA.

Section 105(a)(8)(A) of CERCLA, as amended by SARA, requires that the NCP include "criteria for determining priorities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable, take into account the potential urgency of such action for the purpose of taking removal action". Removal action involves cleanup or other actions that are taken in response to releases or threats of releases on a short-term or temporary basis (CERCLA section 101(23)). Remedial action tends to be long-term in nature and involves response actions that are consistent with a permanent remedy for a release (CERCLA section 101(24)). Criteria for determining priorities for possible remedial actions financed by the Trust Fund established under CERCLA are included in the Hazard Ranking System ("HRS"), which EPA promulgated as Appendix A of the NCP (47 FR 31219, July 16, 1982).

On December 23, 1988 (53 FR 51962), EPA proposed revisions to the HRS in response to CERCLA section 105(c), added by SARA. EPA intends to issue the revised HRS as soon as possible. However, until EPA has reviewed public comments and the proposed revisions have been put into effect, EPA will continue to propose and promulgate sites using the current HRS, in accordance with CERCLA section 105(c)(1) and Congressional intent, as explained in 54 FR 13299 (March 31, 1989).

Based in large part on the HRS criterion, and pursuant to section 105(a)(8)(B) of CERCLA, as amended by SARA, EPA prepared a list of national priorities among the known releases or threatened releases of hazardous substances, pollutants, or contaminants throughout the United States. The list, which is Appendix B of the NCP, is the National Priorities List ("NPL"). Section 105(a)(8)(B) also requires that the NPL be revised at least annually. A site can undergo CERCLA-financed remedial action only after it is placed on the NPL, as provided in the NCP at 40 CFR 300.66(c)(2) and 300.68(a).

An original NPL of 406 sites was promulgated on September 8, 1983 (48 FR 40658). The NPL has been expanded since then, most recently on October 4, 1989 (54 FR 41000/41015). The Agency also has published a number of proposed rulemakings to add sites to the NPL, most recently on August 16, 1989 (54 FR 33846) and Update #9 on July 14, 1989 (54 FR 29820).

EPA may delete sites from the NPL where no further response is appropriate, as explained in the NCP at 40 CFR 300.66(c)(7). To date, the Agency has deleted 28 sites from the final NPL, most recently on September 22, 1989 (54 FR 38994), when Cecil Lindsay, Newport, Arkansas, was deleted.

This notice proposes to add 25 sites to the NPL, including 2 Federal facility sites. Adding these 25 sites to the 213 sites previously proposed brings the total number of proposed sites to 238, 65 of them in the Federal section. The final NPL contains 981 sites, including 52 sites in the Federal section. Final and proposed sites now total 1,219.

EPA is proposing to include on the NPL sites at which there are or have been releases or threatened releases of hazardous substances, pollutants, or contaminants. The discussion below may refer to "releases or threatened releases" simply as "releases", "facilities", or "sites."

Public Comment Period

This Federal Register notice opens the formal 60-day comment period for NPL Update #10. Comments may be mailed to:

Larry Reed
Acting Director, Hazardous Site Evaluation Division (Attn: NPL staff)
Office of Superfund Remediation Technology Innovation (OS-230)
U.S. Environmental Protection Agency
401 M Street, SW.
Washington, DC 20460

The Headquarters and Regional public dockets for the NPL (see Addresses portion of this notice) contain documents relating to the scoring of these proposed sites. The dockets are available for viewing, by appointment only, after the appearance of this notice. The hours of operation for the Headquarters docket are from 9:00 a.m. to 4:00 p.m., Monday through Friday excluding Federal holidays. Please contact individual Regional dockets for hours.

The Headquarters docket for NPL Update #10 contains HRS score sheets for each proposed site, a Documentation Record for each site describing the information used to compute the score, a list of documents referenced in the Documentation Record, and pertinent information for any site affected by statutory requirements and listing policies.

Each Regional docket includes all information available in the Headquarters docket for sites in that Region, as well as the actual reference documents, which contain the data EPA relied upon in calculating or evaluating the HRS scores for sites in that Region. These reference documents are available only in the Regional dockets. They may be viewed, by appointment only, in the appropriate Regional Docket or Superfund Branch office. Requests for copies may be directed to the appropriate Regional docket or Superfund Branch.

An informal written request, rather than a formal request, should be the ordinary procedure for obtaining copies of any of these documents.

EPA considers all comments received during the formal comment period. During the comment period, comments are available to the public only in the Headquarters docket. A complete set of comments pertaining to sites in a particular EPA Region will be available for viewing in the Regional docket approximately one week after the formal comment period closes. Comments received after the comment period closes will be available in the Headquarters docket and in the appropriate Regional Office docket on an " as received" basis. An informal written request, rather than a formal request, should be the ordinary procedure for obtaining copies of any comments. After considering the relevant comments received during the comment period, EPA will add to the NPL all proposed sites that meet EPA's requirements.

EPA will read all comments received on these sites, including late comments, i.e., comments postmarked after the last day of the comment period. In earlier NPL rulemakings, EPA has endeavored to respond even to late comments. However, given the need to make final decisions on all currently proposed sites prior to the date that the revised HRS takes effect, it is unlikely that EPA will be able to respond to all late comments received for sites in this proposed rule. See 54 FR 41021 (October 4, 1989).

Early Comments

In certain instances, interested parties have written to EPA concerning sites that were not at that time proposed to the NPL. If those sites are later proposed to the NPL, parties should review their earlier concerns and, if they still consider them appropriate, resubmit those concerns for consideration during the formal comment period. Site-specific correspondence received prior to proposal generally will not be included in the docket.

Comments Lacking Specificity

EPA anticipates that some comments will consist of or include additional studies or supporting documentation, e.g., hydrogeology reports, lab data, and previous site studies. Where commenters do not indicate what specific scoring issues the supporting documentation addresses, or what they want EPA to evaluate in the supporting documentation, EPA can only attempt to respond to such documents as best it can. Any commenter submitting additional documentation should indicate what specific points in that documentation that EPA should consider. As the U.S. Court of Appeals for the District of Columbia Circuit noted in Northside Sanitary Landfill v. Thomas & EPA, 849 F. 2d 1516, 1520 (D.C. Cir. 1988), cert, denied, 109 S. Ct. 1528 (1989), during notice-and-comment rulemaking a commenter must explain with some specificity how any documents submitted are relevant to issues in the rulemaking.

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II. Purpose and Implementation of the NPL

Purpose

The primary purpose of the NPL is stated in the legislative history of CERCLA (Report of the Committee on Environment and Public Works, Senate Report No. 96-848, 96th Cong., 2d Sess. 60 (1980)):

The priority lists serve primarily informational purposes, identifying for the States and the public those facilities and sites or other releases which appear to warrant remedial actions. Inclusion of a facility or site on the list does not in itself reflect a judgment of the activities of its owner or operator, it does not require those persons to undertake any action, nor does it assign liability to any person. Subsequent government action in the form of remedial actions or enforcement actions will be necessary in order to do so, and these actions will be attended by all appropriate procedural safeguards.

The purpose of the NPL, therefore, is primarily to serve as an informational and management tool. The initial identification of a site for the NPL is intended primarily to guide EPA in determining which sites warrant further investigation to assess the nature and extent of the public health and environmental risks associated with the site and to determine what CERCLA-financed remedial action(s), if any, may be appropriate. The NPL also serves to notify the public of sites that EPA believes warrant further investigation.

Federal facility sites are eligible for the NPL purusant to the NCP at 40 CFR 300.66(c)(2). However, section 111(e)(3) of CERCLA, as amended by SARA, limits the expenditure of CERCLA monies at Federally-owned facilities. Federal facility sites also are subject to the requirements of CERCLA section 120, added by SARA.

Implementation

EPA has limited, by regulation, the expenditure of Trust Fund monies for remedial actions to those sites that have been placed on the final NPL, as outlined in the NCP at 40 CFR 300.66(c)(2) and 300.68(a). However, EPA may take enforcement actions under CERCLA or other applicable statutes against responsible parties regardless of whether the site is on the NPL, although, as a practical matter, the focus of EPA's CERCLA enforcement actions has been and will continue to be on NPL sites. Similarly, in the case of CERCLA removal actions, EPA has the authority to act at any site, whether listed or not, that meets the criteria of the NCP at 40 CFR 300.65-67.

EPA's policy is to pursue cleanup of NPL sites using the appropriate response and/or enforcement actions available to the Agency, including authorities other than CERCLA. Listing a site will serve as notice to any potentially responsible party that the Agency may initiate CERCLA-financed remedial action. The Agency will decide on a site-by-site basis whether to take enforcement or other action under CERCLA or other authorities, proceed directly with CERCLA-financed response actions and seek to recover response costs after cleanup, or do both. To the extent feasible, once sites are on the NPL EPA will determine high-priority candidates for Superfund-financed response action and/or enforcement action through both State and Federal initiatives. These determinations will take into account which approach is more likely to most expeditiously accomplish cleanup of the site while using CERCLA's limited resources as efficiently as possible.

Remedial response actions will not necessarily be funded in the same order as a site's ranking on the NPL. Although most sites are listed in the order of their HRS scores, the Agency has recognized that the information collected to develop HRS scores is not sufficient in itself to determine either the extent of contamination or the appropriate response for a particular site. EPA relies on further, more detailed studies in the Remedial Investigation/Feasibility Study (RI/FS) to address these concerns.

The RI/FS determines the nature and extent of the threat presented by the contamination (40 CFR 300.68(d)). It also takes into account the amount of contaminants in the environment, the risk to affected populations and environment, the cost to correct problems at the site, and the response actions that have been taken by potentially responsible parties to others. Decisions on the type and extent of action to be taken at these sites are made in accordance with the criteria contained in Subpart F of the NCP. After conducting these additional studies, EPA may conclude that it is not desirable to initiate a CERCLA remedial action at some sites on the NPL because of more pressing needs at other sites, or because a private party cleanup is already underway pursuant to an enforcement action. Given the limited resources available in the Trust Fund, the Agency must balance carefully the relative needs for response at the numerous sites it has studied.

RI/FS at Proposed Sites

An RI/FS can be performed at proposed sites (or even non-NPL sites) pursuant to the Agency's removal authority under CERCLA, as outlined in the NCP at 40 CFR 300.68(a)(1). (Section 101(23) of CERCLA defines "remove" or "Removal" to include "such actions as may be necessary to monitor, assess and evaluate the release or threat of release * * * ". The definition of "Removal" also includes "action taken under section 104(b) of this Act * * * ," which authorizes the Agency to perform studies, investigations, and other information-gathering activities).

Although an RI/FS generally is conducted at a site after the site has been placed on the NPL, in a number of circumstances the Agency elects to conduct an RI/FS at a proposed NPL site in preparation for a possible CERCLA-financed remedial action, such as when the Agency believes that a delay may create unnecessary risks to human health or the environment. In addition, the Agency may conduct an RI/FS to assist in determining whether to conduct a removal or enforcement action at a site.

Facility (Site) Boundaries

Listing on the NPL represents a determination that a "release" or threat of release has occurred, and needs to be evaluated under CERCLA. Although the HRS scoring package describes the release, it does not define fixed geographic boundaries for the site. The description of the release at the time of scoring is merely preliminary, and will need to be refined as more information is developed, as during the RI/FS; the NPL site, for the purposes of response action, will include the entire area where contaminants are found to have been placed or come to be located, as provided in CERCLA section 101(9), even if that area extends beyond that described in the HRS package. See 54 FR 13298 (March 31, 1989).

Because the NPL listing is not intended to, and does not, define the geographic extent of the release, it is not meaningful to consider "delisting" allegedly uncontaminated portions of a site from the NPL. However, the RI/FS or Record of Decision (ROD) at a site may offer a useful indication to the public of the areas at which the Agency is considering taking response action, based on information known at that time. See 50 FR 41015 (October 4, 1989).

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III. NPL Update Process

There are three mechanisms for placing sites on the NPL. The principal mechanism is the application of the HRS. The HRS serves as a screening device to evaluate the relative potential of uncontrolled hazardous substances to cause human health or safety problems, or ecological or environmental damage. The HRS score is calculated by estimating risks presented in three potential "pathways" of human or environmental exposure: Ground water, surface water, and air. Within each pathway of exposure, the HRS considers three categories of factors that are designed to encompass most aspects of the likelihood of exposure to a hazardous substance through a release and the magnitude or degree of harm from such exposure:

  1. Factors that indicate the presence or likelihood of a release to the environment;

  2. factors that indicate the nature and quantity of the substances presenting the potential threat; and

  3. factors that indicate the human or environmental "targets" potentially at risk from the site.

Factors within each of these three categories are assigned a numerical value according to a set scale. Once numerical values are computed for each factor, the HRS uses mathematical formulas that reflect the relative importance and interrelationships of the various factors to arrive at a final site score on a scale of 0 to 100. The resultant HRS score represents an estimate of the relative "probability and magnitude of harm to the human population or sensitive environment from exposure to hazardous substances as a result of the contamination of ground water, surface water, or air" (47 FR 31180, July 16, 1982). Those sites that score 28.50 or greater on the HRS are eligible for the NPL.

Under the second mechanism for adding sites to the NPL, each State may designate a single site as its top priority, regardless of the HRS score. This mechanism is provided by section 105(a)(8)(B) of CERCLA, as amended by SARA, which requires that, to the extent practicable, the NPL include within the 100 highest priorities, one facility designated by each State representing the greatest danger to public health, welfare, or the environment among known facilities in the State.

The third mechanism for listing, included in the NCP at 40 CFR 300.66(b)(4) (50 FR 37624, September 16, 1985), has been used only in rare instances. It allows certain sites with HRS scores below 28.50 to be eligible for the NPL if all of the following occur:

States have the primary responsibility for identifying non-Federal sites, computing HRS scores, and submitting candidate sites to the EPA Regional Offices. EPA Regional Offices conduct a quality control review of the States' candidate sites, and may assist in investigating, sampling, monitoring, and scoring sites. Regional Offices also may consider candidate sites in addition to those submitted by States. EPA Headquarters conducts further quality assurance audits to ensure accuracy and consistency among the various EPA and State offices participating in the scoring. The Agency then proposes the sites that meet one of the three criteria for listing (and EPA's listing policies) and solicits public comment on the proposal. Based on these comments and further review by EPA, the Agency determines final HRS scores and places those sites that still qualify on the NPL.

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IV. Statutory Requirements and Listing Policies

CERCLA restricts EPA's authority to respond to certain categories of releases of hazardous substances, pollutants, or contaminants by expressly excluding some substances, such as petroleum, from the response program. In addition, CERCLA section 105(a)(8)(B) directs EPA to list priority sites "among" the known releases or threatened releases of hazardous substances, pollutants, or contaminants, and section 105(a)(8)(A) directs EPA to consider certain enumerated and "other appropriate" factors in doing so. Thus, as a matter of policy, EPA has the discretion not to use CERCLA to respond to certain types of releases. For example, EPA has chosen not to list sites that result from contamination associated with facilities licensed by the Nuclear Regulatory Commission (NRC), on the grounds that the NRC has the authority and expertise to clean up releases from those facilities (48 FR 40661, September 8, 1983). Where other authorities exist, placing the site on the NPL for possible remedial action under CERCLA may not be appropriate. Therefore, EPA has chosen to defer certain types of sites from the NPL even though CERCLA may provide authority to respond. If, however, the Agency later determines that sites not listed as a matter of policy are not being properly responded to, the Agency may place them on the NPL. The listing policies and the statutory requirement of particular relevance to this proposed rule cover Federal facility sites, sites with "special study wastes," and mining waste sites. They are discussed below. These and other listing policies and statutory requirements have been explained in previous rulemakings, the latest being March 31, 1989 (54 FR 13296) and October 4, 1989 (54 FR 41000).

Releases From Federal Facility Sites

On March 13, 1989 (54 FR 10520), the Agency announced a policy for listing Federal facility sites on the NPL if they meet the prescribed eligibility criteria (e.g., and HRS score of 28.50 or greater), even if the Federal facility also is subject to the corrective action authorities of Subtitle C of the Resource Conservation and Recovery Act (RCRA). In that way, cleanup, if appropriate, could be effected at those sites under CERCLA.

Federal facility sites are placed in a separate section of the NPL. In this rule, the Agency is proposing to add 2 Federal facility sites to the NPL, bringing the total number of proposed Federal facility sites to 65.

Releases of Special Study Wastes

Section 105(g) of CERCLA, as amended by SARA, requires EPA to consider additional information before sites involving RCRA "special study wastes" can be proposed for the NPL (until revisions to the HRS are effected). Section 105(g) applies to sites that (1) were not on or proposed for the NPL as of October 17, 1986 and (2) contain significant quantities of special study wastes as defined under RCRA sections 3001(b)(2) (drilling fluids), 3001(b)(3)(A)(ii) (mining wastes), and 301(b)(3)(A)(iii) (cement kiln dust). Before these sites can be added to the NPL, SARA requires that the following information be considered:

One site in this proposed NPL update-Carson River Mercury Site in Lyon and Churchill Counties, Nevada-contains or potentially contains special study wastes subject to the provisions of CERCLA section 105(g), specifically mining wastes. The Agency has placed in the dockets an addendum for this site that evaluates the information called for in section 105(g). This addendum indicates that the special study wastes at the site present a threat to human health and the environment, and that the site should be proposed to the NPL.

Section 125 of CERCLA, as amended by SARA, addresses special study wastes described in RCRA section 3001(b)(3)(A)(i) [fly ash and related wastes]. No sites in this rule are subject to the provisions of section 125.

Releases From Mining Sites

The Agency's position is that mining wastes may be hazardous substances, pollutants, or contaminants under CERCLA and, therefore, mining waste sites are eligible for the NPL. This position was affirmed in 1985 by the United States Court of Appeals for the District of Columbia Circuit (Eagle-Picher Industries, Inc. v. EPA, 759 F. 2d 922 (D.C. Cir 1985)).

Agency policy statements regarding including mining sites on the NPL are set out at 53 FR 23988, 23993 (June 24, 1988); 54 FR 10512, 10514-16 (March 13, 1989); and 54 FR 13296, 13300-01, 13302-3 (March 31, 1989). Today's rulemaking proposes to add 1 mining site - the Carson River Mercury Site in Lyon and Churchill Counties, Nevada - to the NPL.

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V. Contents of Proposed NPL Update #10

Tables 1 and 2 following this preamble list 25 sites proposed for the NPL in Update #10. Each entry contains the name of the facility and the State and city or county in which it is located. All sites received HRS scores of 28.50 or above.

Each proposed site is placed by score in a group corresponding groups of 50 sites presented within the final NPL. For example, a site in Group 8 of the proposed update has a score that falls within the range of scores covered by the eighth group of 50 sites on the final NPL. The NPL is arranged by HRS scores and is presented in groups of 50 to emphasize that minor differences in scores do not necessarily represent significantly different levels of risk. Federal facility sites are listed in a separate section of the NPL.

In the past, each entry was accompanied by one or more notations reflecting the status of response and cleanup activities at the site at the time this list was prepared. EPA is developing a report summarizing response activities at NPL sites, which the Agency believes will contain more timely and useful information on site status than did the response and cleanup codes. The report will be available shortly. In the interim, information on activities at the new proposed sites is available upon request to the appropriate Regional Office.

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VI. Regulatory Impact Analysis

The costs of cleanup actions that may be taken at sites are not directly attributable to listing on the NPL as explained below. Therefore, the Agency has determined that this rulemaking is not a "major" regulation under Executive Order 12291. EPA has conducted a preliminary analysis of the economic implications of today's proposal to add new sites. EPA believes that the kinds of economic effects associated with this proposed revision are generally similar to those identified in the regulatory impact analysis (RIA) prepared in 1982 for revisions to the NCP pursuant to section 105 of CERCLA (47 FR 31180, July 16, 1982) and the economic analysis prepared when amendments to the NCP were proposed (50 FR 5882, February 12, 1985). The Agency believes that the anticipated economic effects related to proposing the addition of these sites to the NPL can be characterized In terms of the conclusions of the earlier RIA and the most recent economic analysis. This rule was submitted to the Office of Management and Budget for review as required by Executive Order 12291.

Costs

EPA has determined that this proposed rulemaking is not a major regulation under Executive Order 12291 because inclusion of a site on the NPL does not itself impose any costs. It does not establish that EPA necessarily will undertake remedial action, nor does it require any action by a private party or determine its liability for site response costs. Costs that arise out of site responses result from site-by-site decisions about what actions to take, not directly from the act of listing itself. Nonetheless, it is useful to consider the costs associated with responding to all sites included in this proposed rulemaking.

The major events that follow the proposed listing of a site on the NPL are a search for potentially responsible parties and a Remedial Investigation/Feasibility Study (RI/FS) to determine if remedial actions will be undertaken at a site. Design and construction of the selected remedial alternative follow completion of the RI/FS, and operation and maintenance (O&M) activities may continue after construction has been completed.

EPA initially bears costs associated with responsible party searches. Responsible parties may bear some or all of the costs of the RI/FS, remedial design and construction, and O&M, or EPA and the States may share costs.

The State cost share for site cleanup activities has been amended by section 104 of SARA. For privately-owned sites, as well as at publicly-owned but not publicly-operated sites, EPA will pay for 100% of the costs of the RI/FS and remedial planning, and 90% of the costs associated with remedial action. The State will be responsible for 10% of the remedial action. For publicly-operated sites, the State cost share is at least 50% of all response costs at the site, including the RI/FS and remedial design and construction of the remedial action selected. After the remedy is built, costs fall into two categories:

  1. For restoration of ground water and surface water, EPA will share in startup costs according to the criteria in the previous paragraph for 10 years or until a sufficient level of protectiveness is achieved before the end of 10 years.

  2. For other cleanups, EPA will share for up to 1 year the cost of that portion of response needed to assure that a remedy is operational and functional. After that, the State assumes full responsibilities for O&M.

In previous NPL rulemakings the Agency estimated the costs associated with these activities (RI/FS, remedial design, remedial action, and O&M) on an average per site and total cost basis. EPA will continue with this approach, using the most recent (1988) cost estimates available; these estimates are presented below. However, there is wide variation in costs for individual sites, depending on the amount, type, and extent of contamination. Additionally, EPA is unable to predict what portions of the total costs responsible parties will bear, since the distribution of costs depends on the extent of voluntary and negotiated response and the success of any cost recovery actions.


Cost category Average total cost per site 1
RI/FS 1,100,000
Remedial Design 750,000
Remedial Action 13,500,000 2
Net present value of O&M 3 3,770,000 2
Source: Office of Program Management, Office of Superfund Remediation Technology Innovation, U.S. EPA. 1 1988 U.S. Dollars
2 Includes State cost-share
3 Assumes cost of O&M over 30 years, $400,000 for the first year and 10 percent discount rate.

Costs to States associated with today's proposed rule arise from the required State cost-share of:

  1. 10 percent of remedial actions and 10 percent of first-year O&M costs at privately-owned sites and sites that are publicly-owned but not publicly operated; and

  2. at least 50 percent of the remedial planning (RI/FS and remedial design), remedial action, and first-year O&M costs at publicly operated sites.

States will assume the cost for O&M after EPA's period of participation. Using the assumptions developed in the 1982 RIA for the NCP, EPA has assumed that 90 percent of the 23 non-Federal sites proposed for the NPL in this rule will be privately-owned and 10 percent will be State or locally operated. Therefore, using the budget projections presented above, the cost to States of undertaking Federal remedial planning and actions at all 23 non-Federal sites, but excluding O&M costs, would be approximately $46 million. State O&M costs cannot be accurately determined because EPA, as noted above, will share O&M costs for up to 10 years for restoration of ground water and surface water, and it is not known how many sites will require this treatment and for how long. However, based on past experience, EPA believes a reasonable estimate is that it will share startup costs for up to 10 years at 25 percent of sites. Using this estimate, State O&M costs would be approximately $74 million.

Proposing a hazardous waste site for the NPL does not itself cause firms responsible for the site to bear costs. Nonetheless, a listing may induce firms to clean up the sites voluntarily, or it may act as a potential trigger for subsequent enforcement or cost recovery actions. Such actions may impose costs on firms, but the decisions to take such actions are discretionary and made on a case-by-case basis. Consequently, precise estimates of these effects cannot be made. EPA does not believe that every site will be cleaned up by a responsible party. EPA cannot project at this time which firms or industry sectors will bear specific portions of the response costs, but the Agency considers: the volume and nature of the waste at the sites; the strength of the evidence linking the wastes at the site to the parties; the parties' ability to pay; and other factors when deciding whether and how to proceed against the parties.

Economy-wide effects of this proposed amendment to the NCP are aggregations of effects on firms and State and local governments. Although effects could be felt by some individual firms and States, the total impact of this proposal on output, prices, and employment is expected to be negligible at the national level as was the case in the 1982 RIA.

Benefits

The real benefits associated with today's proposal to place additional sites on the NPL are increased health and environmental protection as a result of increased public awareness of potential hazards. In addition to the potential for more Federally-financed remedial actions, expansion of the NPL could accelerate privately-financed, voluntary cleanup efforts. Proposing sites as national priority targets also may give States increased support for funding responses at particular sites.

As a result of the additional CERCLA remedies, there will be lower human exposure to high-risk chemicals, and higher-quality surface water, ground water, soil, and air. These benefits are expected to be significant, although difficult to estimate in advance of completing the RI/FS at these sites.

Associated with the costs are significant potential benefits and cost offsets. The distributional costs to firm or financing NPL remedies have corresponding "benefits" in that funds expended for a response generate employment, directly or indirectly (through purchased materials).

[Return to Table of Contents]

VII. Regulatory Flexibility Act Analysis

The Regulatory Flexibility Act of 1980 requires EPA to review the impacts of this action on small entities, or certify that the action will not have a significant impact on a substantial number of small entities. By small entities, the Act refers to small businesses, small government jurisdictions, and nonprofit organizations.

While this rule proposes revisions to the NCP, they are not typical regulatory changes since the revisions do not automatically impose costs. Proposing sites for the NPL does not in itself require any action by any private party, nor does it determine the liability of any party for the cost of cleanup at the site. Further, no identifiable groups are affected as a whole. As a consequence, it is hard to predict impacts on any group. A site's proposed inclusion on the NPL could increase the likelihood that adverse impacts to responsible parties (in the form of cleanup costs) will occur, but EPA cannot identify the potentially affected business at this time nor estimate the number of small businesses that might be affected.

The Agency does expect that certain industries and firms within industries that have caused a proportionately high percentage of waste site problems could be significantly affected by CERCLA actions. However, EPA does not expect the impacts from the listing of these 25 sites to have a significant economic impact on a substantial number of small businesses.

In any case, economic impacts only would occur through enforcement and cost-recovery actions, which are taken at EPA's discretion on a site-by-site basis. EPA considers many factors when determining what enforcement actions to take, including not only the firm's contribution to the problem, but also the firm's ability to pay.

The impacts (from cost recovery) on small governments and nonprofit organizations would be determined on a similar case-by-case basis.

List of Subjects in 40 CFR Part 300

Air pollution control, Chemicals, Hazardous materials, Intergovernmental relations, Natural resources, Oil pollution, Reporting and recordkeeping requirements, Superfund, Waste treatment and disposal, Water pollution control, Water supply.

Dated: October 18, 1989.

Robert H. Wayland III,
Acting Deputy Assistant Administrator, Office of Solid Waste and Emergency Response.

PART 300 - [AMENDED]

It is proposed to amend 40 CFR part 300 as follows:

1. The authority citation for part 300 continues to read as follows:

Authority: 42 U.S.C. 9605; 42 U.S.C. 9620; 33 U.S.C. 1321(c)(2); E.O. 11735 (38 FR 21243); E.O. 12580 (52 FR 2923).

Appendix B [Amended]

2. It is proposed to add the following sites by group to Appendix B of part 300

Table 1
National Priorities List - Proposed Update 10 Sites (By Group)
October 1989

NPL Gr 1 St Site name City/county
4 CA Industrial Waste Processing Fresno
4 IL MIG/Dewane Landfill Belvidere
4 PA Ohio River Park Neville Island
5 WI Better Brite Chrome & Zinc Shops DePere
6 AR Monroe Auto Equip(Paragould Pit) Paragould
8 AK Arctic Surplus Fairbanks
8 MN Dakhue Sanitary Landfill Cannon Falls
8 SD Williams Pipe Line Disposal Pit Sioux Falls
9 CA United Heckathorn Co. Richmond
10 CA Western Pacific Railroad Co Oroville
10 NV Carson River Mercury Site Lyon/Churchill Cnty
11 NJ Chemical Insecticide Corp. Edison township
11 OR Union Pacific Railroad Tie Treat The Dalles
15 DE Koppers Co., Inc., (Newport Plant) Newport
15 SC Para-Chem Southern, Inc. Simpsonville
16 NE Nebraska Ordnance Plant (Former) Mead
17 OK Kerr-McGee Corp. (Cushing Plant) Cushing
17 FL Anaconda Aluminum/Milgo Electron. Miami
18 MO Westlake Landfill Bridgeton
18 AR Magnolia City Landfill Magnolia
18 NY Sealand Restoration, Inc. Lisbon
19 NE 10th Street Site Columbus
19 PA Dublin TCE Site Dublin borough
Number of sites Proposed for Listing: 23. 1 Sites are placed in groups (Gr) corresponding to groups of 50 on the final NPL

Table 2
National Priorities List - Federal Facility Sites (By Group)
October 1989

NPL Gr 1 St Site name City/county
12 CT New London Submarine Base New London
15 SD Ellsworth Air Force Base Rapid City
Number of sites Proposed for Listing: 2. 1 Sites are placed in groups (Gr) corresponding to groups of 50 on the final NPL


[FR Dec. 89-25279 Filed 10-25-89; 8:45 am]

BILLING CODE 6560-50-M

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