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Federal Register Notice

50435 - 50439 Federal Register / Vol. 60, No. 189 / Friday, September 29, 1995 / Rules and Regulations

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50435 - 50439 Federal Register / Vol. 60, No. 189 / Friday, September 29, 1995 / Rules and Regulations

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300
[FRL-5308-2]

National Priorities List for Uncontrolled Hazardous Waste Sites

AGENCY: Environmental Protection Agency.
ACTION:  Final rule.

SUMMARY:

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA" or "the Act"), as amended, requires that the National Oil and Hazardous Substances Pollution Contingency Plan ("NCP") include a list of national priorities among the known releases or threatened releases of hazardous substances, pollutants, or contaminants throughout the United States. The National Priorities List ("NPL") which is appendix B of 40 CFR part 300, constitutes this list.

This rule adds 8 new sites to the NPL, 6 to the General Superfund Section and 2 to the Federal Facilities Section. The NPL is intended primarily to guide the Environmental Protection Agency ("EPA" or "the Agency") in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with the site and to determine what CERCLA-financed remedial action(s), if any, may be appropriate.

EFFECTIVE DATE:

The effective date for this amendment to the NCP shall be October 30, 1995.

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ADDRESSES:

For addresses for the Headquarters and Regional dockets, as well as further details on what these dockets contain, see "Information Available to the Public" in Section I of the "SUPPLEMENTARY INFORMATION" portion of this preamble.

FOR FURTHER INFORMATION CONTACT:

Terry Keidan
Hazardous Site Evaluation Division
Office of Superfund Remediation Technology Innovation (mail code 5204G)
U.S. Environmental Protection Agency
401 M Street, SW
Washington, DC, 20460
or the Superfund Hotline, phone (800) 424-9346 or (703) 412-9810 in the Washington, DC, metropolitan area.

SUPPLEMENTARY INFORMATION:

I. Introduction
II. Contents of This Final Rule
III. Executive Order 12866
IV. Unfunded Mandates
V. Governors' Concurrence

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I. Introduction

Background

In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675 ("CERCLA" or "the Act"), in response to the dangers of uncontrolled 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, EPA 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 sets forth the guidelines and procedures needed to respond under CERCLA to releases and threatened releases of hazardous substances, pollutants, or contaminants. EPA has revised the NCP on several occasions. The most recent comprehensive revision was on March 8, 1990 (55 FR 8666).

Section 105(a)(8)(A) of CERCLA 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 taking into account the potential urgency of such action, for the purpose of taking removal action." "Removal" actions are defined broadly and include a wide range of actions taken to study, clean up, prevent or otherwise address releases and threatened releases. 42 USC 9601(23). "Remedial" actions are those "consistent with permanent remedy, taken instead of or in addition to removal actions * * *." 42 USC 9601(24).

Pursuant to section 105(a)(8)(B) of CERCLA, as amended by SARA, EPA has promulgated a list of national priorities among the known or threatened releases of hazardous substances, pollutants, or contaminants throughout the United States. That list, which is Appendix B of 40 CFR Part 300, is the National Priorities List ("NPL").

CERCLA section 105(a)(8)(B) defines the NPL as a list of "releases" and as a list of the highest priority "facilities." CERCLA section 105(a)(8)(B) also requires that the NPL be revised at least annually. A site may undergo remedial action financed by the Trust Fund established under CERCLA (commonly referred to as the "Superfund") only after it is placed on the NPL, as provided in the NCP at 40 CFR 300.425(b)(1). However, under 40 CFR 300.425(b)(2) placing a site on the NPL "does not imply that monies will be expended." EPA may pursue other appropriate authorities to remedy the releases, including enforcement action under CERCLA and other laws.

The purpose of the NPL is merely to identify releases that are priorities for further evaluation. Although a CERCLA "facility" is broadly defined to include any area where a hazardous substance release has "come to be located" (CERCLA section 101(9)), the listing process itself is not intended to define or reflect the boundaries of such facilities or releases.

Further, the NPL is only of limited significance, as it does not assign liability to any party or to the owner of any specific property. See Report of the Senate Committee on Environment and Public Works, Senate Rep. No. 96-848, 96th Cong., 2d Sess. 60 (1980), quoted above and at 48 FR 40659 (September 8, 1983). If a party does not believe it is liable for releases on discrete parcels of property, supporting information can be submitted to the Agency at any time after a party receives notice it is a potentially responsible party.

Three mechanisms for placing sites on the NPL for possible remedial action are included in the NCP at 40 CFR 300.425(c). Under 40 CFR 300.425(c)(1), a site may be included on the NPL if it scores sufficiently high on the Hazard Ranking System ("HRS"), which EPA promulgated as Appendix A of 40 CFR part 300. On December 14, 1990 (55 FR 51532), EPA promulgated revisions to the HRS partly in response to CERCLA section 105(c), added by SARA. The revised HRS evaluates four pathways: ground water, surface water, soil exposure, and air. The HRS serves as a screening device to evaluate the relative potential of uncontrolled hazardous substances to pose a threat to human health or the environment. As a matter of Agency policy, those sites that score 28.50 or greater on the HRS are eligible for the NPL.

Under a 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, provided by the NCP at 40 CFR 300.425(c)(2), 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 300.425(c)(3), allows certain sites to be listed regardless of their HRS score, if all of the following conditions are met:

EPA promulgated an original NPL of 406 sites on September 8, 1983 (48 FR 40658). The NPL has been expanded since then, most recently on May 26, 1995 (60 FR 27896).

The NPL includes two sections, one of sites that are evaluated and cleaned up by EPA (the "General Superfund Section"), and one of sites being addressed generally by other Federal agencies (the "Federal Facilities Section"). Under Executive Order 12580 (52 FR 2923, January 29, 1987) and CERCLA section 120, each Federal agency is responsible for carrying out most response actions at facilities under its own jurisdiction, custody, or control, although EPA is responsible for preparing an HRS score and determining whether the facility is placed on the NPL. EPA is not the lead agency at these sites, and its role at such sites is accordingly less extensive than at other sites. The Federal Facilities Section includes facilities at which EPA is not the lead agency.

Facility (Site) Boundaries

The NPL does not describe releases in precise geographical terms; it would be neither feasible nor consistent with the limited purpose of the NPL (as the mere identification of releases), for it to do so.

CERCLA section 105(a)(8)(B) directs EPA to list national priorities among the known "releases or threatened releases." Thus, the purpose of the NPL is merely to identify releases that are priorities for further evaluation. Although a CERCLA "facility" is broadly defined to include any area where a hazardous substance release has "come to be located" (CERCLA section 101(9)), the listing process itself is not intended to define or reflect the boundaries of such facilities or releases. Of course, HRS data upon which the NPL placement was based will, to some extent, describe which release is at issue. That is, the NPL site would include all releases evaluated as part of that HRS analysis (including noncontiguous releases evaluated under the NPL aggregation policy, described at 48 FR 40663 (September 8, 1983)).

When a site is listed, it is necessary to define the release (or releases) encompassed within the listing. The approach generally used is to delineate a geographical area (usually the area within the installation or plant boundaries) and define the site by reference to that area. As a legal matter, the site is not coextensive with that area, and the boundaries of the installation or plant are not the "boundaries" of the site. Rather, the site consists of all contaminated areas within the area used to define the site, and any other location to which contamination from that area has come to be located.

While geographic terms are often used to designate the site (e.g., the "Jones Co. plant site") in terms of the property owned by the particular party, the site properly understood is not limited to that property (e.g., it may extend beyond the property due to contaminant migration), and conversely may not occupy the full extent of the property (e.g., where there are uncontaminated parts of the identified property, they may not be, strictly speaking, part of the "site"). The "site" is thus neither equal to nor confined by the boundaries of any specific property that may give the site its name, and the name itself should not be read to imply that this site is coextensive with the entire area within the property boundary of the facility or plant. The precise nature and extent of the site are typically not known at the time of listing. Also, the site name is merely used to help identify the geographic location of the contamination. For example, the "Jones Co. plant site," does not imply that the Jones company is responsible for the contamination located on the plant site.

EPA regulations provide that the "nature and extent of the threat presented by a release" will be determined by a Remedial Investigation/Feasibility Study (RI/FS) as more information is developed on site contamination (40 CFR 300.430(d)). During the RI/FS process, the release may be found to be larger or smaller than was originally thought, as more is learned about the source and the migration of the contamination. However, this inquiry focuses on an evaluation of the threat posed; the boundaries of the release need not be exactly defined. Moreover, it generally is impossible to discover the full extent of where the contamination "has come to be located" before all necessary studies and remedial work are completed at a site. Indeed, the boundaries of the contamination can be expected to change over time. Thus, in most cases, it may be impossible to describe the boundaries of a release with absolute certainty.

For these reasons, the NPL need not be amended if further research into the extent of the contamination expands the apparent boundaries of the release. Further, the NPL is only of limited significance, as it does not assign liability to any party or to the owner of any specific property. See Report of the Senate Committee on Environment and Public Works, Senate Rep. No. 96-848, 96th Cong., 2d Sess. 60 (1980), quoted above and at 48 FR 40659 (September 8, 1983). If a party does not believe it is liable for releases on discrete parcels of property, supporting information can be submitted to the Agency at any time after a party receives notice it is a potentially responsible party.

Deletions/Cleanups

EPA may delete sites from the NPL where no further response is appropriate under Superfund, as explained in the NCP at 40 CFR 300.425(e). To date, the Agency has deleted 84 sites from the General Superfund Section of the NPL.

EPA also has developed an NPL construction completion list ("CCL") to simplify its system of categorizing sites and to better communicate the successful completion of cleanup activities (58 FR 12142, March 2, 1993). Sites qualify for the CCL when:

  1. any necessary physical construction is complete, whether or not final cleanup levels or other requirements have been achieved;

  2. EPA has determined that the response action should be limited to measures that do not involve construction (e.g., institutional controls); or

  3. the site qualifies for deletion from the NPL.

Inclusion of a site on the CCL has no legal significance.

In addition to the 83 sites that have been deleted from the NPL because they have been cleaned up (the Waste Research and Reclamation site was deleted based on deferral to another program and is not considered cleaned up), an additional 221 sites are also in the NPL CCL. Thus, as of September 1995, the CCL consists of 304 sites.

Cleanups at sites on the NPL do not reflect the total picture of Superfund accomplishments. As of August, 1995, EPA had commenced 679 removal actions at NPL sites, and 2,108 removal actions at non-NPL sites. Information on removals is available from the Superfund hotline.

Action In This Notice

This final rule adds 8 sites to the NPL, 6 to the General Superfund Section and 2 to the Federal Facilities Section. Seven of these sites are added to the NPL based on an HRS score of 28.5 or greater and one is added based on the ATSDR Health Advisory Criteria. This notice also drops one site from proposal to the NPL. This action results in an NPL of 1,238 sites, 1,083 in the General Superfund Section and 155 in the Federal Facilities Section. With the action of a proposed rule published in the Federal Register issue of October 2, 1995, an additional 52 sites are proposed and are awaiting final agency action, 47 in the General Superfund Section and 5 in the Federal Facilities Section. Final and proposed sites now total 1,290.

Based on comments received on the Plymouth Avenue Landfill site in Deland, Florida, EPA recalculated the HRS score and found that it had dropped below 28.5. Consequently, EPA is not taking final action and is withdrawing the Plymouth Avenue Landfill site from proposal to the NPL at this time.

Information Available to the Public

401 M Street, SW
Washington, DC 20460
703/603-8917

(Please note this is the mailing address only. If you wish to visit the HQ Docket to view documents, see viewing address above.)

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II. Contents of This Notice

This notice promulgates final rules to add 8 sites to the NPL, 6 to the General Superfund Section (Table 1) and 2 to the Federal Facilities Section (Table 2). The following tables present the sites in this rule arranged alphabetically by State and identifies their rank by group number. Group numbers are determined by arranging the NPL by rank and dividing it into groups of 50 sites. For example, a site in Group 4 has a score that falls within the range of scores covered by the fourth group of 50 sites on the NPL.

Table 1
National Priorities List Final Rule - General Superfund Section

State Site Name City/County Group
KS Ace Services Colby 5/6
ME West Site/Hows Corner Plymouth 5/6
NJ Horseshoe Road Sayreville 4
TN Tennessee Products Chattanooga NA
TX RSR Corporation Dallas 5/6
VI Tutu Wellfield Tutu 5/6
Number of Sites Listed: 6.

Table 2
National Priorities List Final Rule - Federal Facilities Section

State Site Name City/County Group
MD Indian Head Naval Surface Warfare Center Indian Head 5/6
PA Willow Grove Naval Air and Air Reserve Station Willow Grove 5/6
Number of Sites Listed: 2.


Public Comments

EPA reviewed all comments received on sites included in this notice. Based on comments received on the proposed sites, as well as investigation by EPA and the States (generally in response to comment), EPA recalculated the HRS scores for individual sites where appropriate. EPA's response to site-specific public comments and explanations of any score changes made as a result of such comments are addressed in the "Support Document for the Revised National Priorities List Final Rule - September 1995."

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III. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866 review.

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IV. Unfunded Mandates

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with "Federal mandates" that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When a written statement is needed for an EPA rule, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves.

The Headquarters and Regional public dockets for the NPL contain documents relating to the evaluation and scoring of the site in this final rule. 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 the Regional Docket for hours.

Addresses and phone numbers for the Headquarters and Regional dockets follow.

Docket Coordinator
Headquarters, U.S. EPA CERCLA Docket Office
Crystal Gateway #1, 12th Floor
1235 Jefferson Davis Highway
Arlington, VA
703/603-8917
(Please note this is viewing address only. Do not mail documents to this address.)

Jim Kyed
Region 1, U.S. EPA Waste Management Records Center, HRC-CAN-7
J.F. Kennedy Federal Building
Boston, MA 02203-2211
617/573-9656

Ben Conetta
Region 2, U.S. EPA
290 Broadway
New York, NY 10007-1866
212/637-4435

Diane McCreary
Region 3, U.S. EPA Library, 3rd Floor
841 Chestnut Building
9th & Chestnut Streets
Philadelphia, PA 19107
215/597-7904

Kathy Piselli
Region 4, U.S. EPA
345 Courtland Street, NE
Atlanta, GA 30365
404/347-4216

Cathy Freeman
Region 5, U.S. EPA, Records Center
Waste Management Division 7-J
Metcalfe Federal Building
77 West Jackson Boulevard
Chicago, IL 60604
312/886-6214

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

Carole Long
Region 7, U.S. EPA
726 Minnesota Avenue
Kansas City, KS 66101
913/551-7224

Greg Oberley
Region 8, U.S. EPA
999 18th Street, Suite 500
Denver, CO 80202-2466
303/294-7598

Rachel Loftin
Region 9, U.S. EPA
75 Hawthorne Street
San Francisco, CA 94105
415/744-2347

David Bennett
Region 10, U.S. EPA, 11th Floor
1200 6th Avenue, Mail Stop HW-114
Seattle, WA 98101
206/553-2103

For the sites added to the NPL based on an HRS score of 28.5 or greater, the Headquarters docket for this rule contains HRS score sheets for the final sites; Documentation Records for the sites describing the information used to compute the scores; pertinent information regarding statutory requirements or EPA listing policies that affect the sites; and a list of documents referenced in each of the Documentation Records. For the site being listed based on ATSDR Health Advisory criteria, the Headquarters docket contains the health advisory issued by ATSDR and other supporting documentation. For all of the final sites, the Headquarters docket contains comments received; and the Agency's responses to those comments. The Agency's responses are contained in the "Support Document for the Revised National Priorities List Final Rule - September 1995."

A general discussion of the statutory requirements affecting NPL listing, the purpose and implementation of the NPL, the economic impacts of NPL listing, and the analysis required under the Regulatory Flexibility Act is included as part of the Headquarters rulemaking docket in the "Additional Information" document.

The Regional docket contains all the information in the Headquarters docket, plus the actual reference documents containing the data principally relied upon by EPA in calculating or evaluating the HRS score, when the HRS is used, for the sites. These reference documents are available only in the Regional dockets.

Interested parties may view documents, by appointment only, in the Headquarters of Regional Dockets, or copies may be requested from the Headquarters or Regional Dockets. An informal written request, rather than a formal request under the Freedom of Information Act, should be the ordinary procedure for obtaining copies of any of these documents. If you wish to obtain documents by mail from EPA Headquarters Docket, the mailing address is as follows: Docket Coordinator, Headquarters U.S. EPA CERCLA Docket Office (Mail Code 5201G) the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, giving them meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising them on compliance with the regulatory requirements.

Today's rule contains no Federal mandates (within the meaning of Title II of the UMRA) for State, local, or tribal governments or the private sector. Nor does it contain any regulatory requirements that might significantly or uniquely affect small governments. This is because today's listing decision does not impose any enforceable duties upon any of these governmental entities or the private sector. 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 form site-by-site decisions about what actions to take, not directly from the act of listing itself. Therefore, today's rulemaking is not subject to the requirements of sections 202, 203 or 205 of the Unfunded Mandates Act.

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V. Governor's Concurrence

On July 27, 1995, Congress enacted Public Law (P.L.) 104-19, which made emergency supplemental appropriations and rescissions for the fiscal year ending September 30, 1995. Section 1006 of P.L. 104-19 provides that EPA may not use funds made available for fiscal year 1995 for listing or to list any additional facilities on the National Priorities List * * * unless the Administrator receives a written request to propose for listing or to list a facility from the Governor of the State in which the facility is located * * *.

EPA has received letters from the appropriate governors requesting that the Agency list on the NPL all the facilities in this final rule. These letters are available in the docket for this rulemaking.


List of Subjects in 40 CFR Part 300

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

Dated: September 25, 1995.

Elliott P. Laws,
Assistant Administrator, Office of Solid Waste and Emergency Response.

40 CFR part 300 is amended as follows:

PART 300 - [AMENDED]

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]

2. Table 1 to appendix B to part 300 is amended by revising the table heading and by adding the following sites by State and in alphabetical order:

3. Table 2 to appendix B to part 300 is amended by revising the table heading by adding the following sites by State and in alphabetical order:

BILLING CODE 6560-50-M

[FR Doc. 95-24415 Filed 9-28-95; 8:45 am]

BILLING CODE 6560-10-P

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