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Federal Register Notice

15572 - 15576 Federal Register / Vol. 62, No. 62 / Tuesday, April 1, 1997 / Rules and Regulations

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15572 - 15576 Federal Register / Vol. 62, No. 62 / Tuesday, April 1, 1997 / Rules and Regulations

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300
[FRL-5805-2]

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") constitutes this list.

This rule adds 5 new sites to the NPL, 3 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 May 1, 1997.

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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
State and Site Identification Center
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. Effects on Small Businesses
VI. Possible Changes to the Effective Date of the Rule

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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 ), 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, 100 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 U.S.C. 9601(23). "Remedial action[s]" are those "consistent with permanent remedy, taken instead of or in addition to removal actions * * *." 42 U.S.C. 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), 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) and 105(a)(8)(B) 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 December 23, 1996 (61 FR 67656).

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 generally 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.

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) mandates listing of 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.

When a site is listed, it is necessary to define the release (or releases) encompassed by the listing. The approach generally used is to delineate a geographical area (usually the area within the installation or plant boundaries) and identify 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 identify the site, and any other location to which contamination from that area has come to be located or from which that contamination came.

In other words, while geographic terms are often used to designate the site (e.g., the "Jones Co. plant site") in terms of the property owned by a 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 installation 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(s) 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 as further research reveals more information about the location of the contamination or release.

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 141 sites from the NPL.

On November 1, 1995, EPA announced a new policy to delete portions of NPL sites where cleanup is complete (60 FR 55465). Total site cleanup may take many years, while portions of the site may have been cleaned up and be available for productive use. As of April 1997, EPA has partially deleted 4 sites from 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 132 sites that have been deleted from the NPL because they have been cleaned up (7 sites have been deleted based on deferral to other authorities and are not considered cleaned up), an additional 291 sites are also in the NPL CCL. Thus, as of April 1997, the CCL consists of 423 sites.

Action in This Document

This final rule adds 5 sites to the NPL, 3 to the General Superfund section and 2 to the Federal Facilities section. All of these sites are added to the NPL based on an HRS score of 28.5 or greater. This action results in an NPL of 1,206 sites, 1,055 in the General Superfund section and 151 in the Federal Facilities section. With the action of a proposed rule published elsewhere in today's Federal Register, a total of 49 sites are proposed and are awaiting final agency action, 43 in the General Superfund Section and 6 in the Federal Facilities Section. Final and proposed sites now total 1,255.

Information Available to the Public

The Headquarters and Regional public dockets for the NPL contain documents relating to the evaluation and scoring of the sites 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, 1st Floor
1235 Jefferson Davis Highway
Arlington, VA
703/603-8917
(Please note this is a 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
215/566-5250

Kathy Piselli
Region 4, U.S. EPA
100 Alabama Street, SW.
Atlanta, GA 30303
404/562-8190

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

Pat Smith
Region 8, U.S. EPA
999 18th Street, Suite 500
Denver, CO 80202-2466
303/312-6082

Carolyn Douglas
Region 9, U.S. EPA
75 Hawthorne Street
San Francisco, CA 94105
415/744-2343

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

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. The Headquarters docket also contains comments received, and the Agency's responses to those comments. The Agency's responses are contained in the "Support Document forthe Revised National Priorities List Final Rule - April 1997."

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 for the sites. These reference documents are available only in the Regional dockets.

Interested parties may view documents, by appointment only, in the Headquarters or Regional Dockets, or copies may be requested from the Headquarters or Regional Dockets. An informal request, rather than a formal written 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 from EPA Headquarters Docket, the address and phone number are as follows:

Docket Coordinator
Headquarters, U.S. EPA CERCLA Docket Office (Mail Code 5201G)
401 M Street, SW.
Washington, DC 20460
703/603-8917
superfund.docket@epamail.epa.gov

Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) added by the Small Business Regulatory Enforcement Act of 1996, EPA submitted a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives and the Comptroller General of the General Accounting Office prior to publication of the rule in today's Federal Register. This rule is not a "major rule" as defined by 5 U.S.C. 804(2).

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II. Contents of This Final Rule

This document promulgates final rules to add 5 sites to the NPL, 3 to the General Superfund section (Table 1) and 2 to the Federal Facilities section (Table 2). The following table presents 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
GA Brunswick Wood Preserving Brunswick 3
TN Ross Metals Inc. Rossville 15
WA Palermo Well Field Ground Water Contamination. Tumwater 5/6
AAANumber of Sites Listed: 3.

Table 2
National Priorities List Final Rule - Federal Section

State Site Name City/County Group
FL Tyndall Air Force Base Panama City 5/6
VA Norfolk Naval Base (Sewells Point Naval Complex). Norfolk 5/6
ANumber of Sites Listed: 2.


Tennessee Products Site

The Tennessee Products site located in Chattanooga, Tennessee was placed on the NPL on September 29, 1995 (60 FR 50435). On November 12, 1996, the U.S. Court of Appeals for the District of Columbia Circuit vacated the inclusion of the Coke Plant Site within the Tennessee Products NPL listing.

Horseshoe Road Site

EPA has removed the Atlantic Resources Corporation (ARC) area from the Horseshoe Road site. The Horseshoe Road site in Sayreville, New Jersey was placed on the NPL on September 29, 1995 (60 FR 50435). EPA believes this change more accurately reflects the site. EPA has addressed all comments received regarding the ARC area. Therefore, additional notice and comment procedures are unnecessary. Removal of the ARC area does not preclude EPA from taking future action in that area if further evaluation reveals the presence of contamination.

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 forthe Revised National Priorities List Final Rule - April 1997."

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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), P.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 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 from 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. Effects on Small Businesses

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 revises the NPL, an NPL revision is not a typical regulatory change since it does not automatically impose costs. As stated above, adding sites to the NPL does not in itself require any action by any 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, impacts on any group are hard to predict. A site's inclusion on the NPL could increase the likelihood of adverse impacts on responsible parties (in the form of cleanup costs), but at this time EPA cannot identify the potentially affected businesses or estimate the number of small businesses that might also be affected.

The Agency does expect that placing the sites in this rule on the NPL could significantly affect certain industries, or firms within industries, that have caused a proportionately high percentage of waste site problems. However, EPA does not expect the listing of these sites to have a significant economic impact on a substantial number of small businesses.

In any case, economic impacts would occur only through enforcement and cost-recovery actions, which EPA takes at its discretion on a site-by-site basis. EPA considers many factors when determining enforcement actions, including not only a firm's contribution to the problem, but also its ability to pay. The impacts (from cost recovery) on small governments and nonprofit organizations would be determined on a similar case-by-case basis.

For the foregoing reasons, I hereby certify that this rule will not have a significant economic impact on a substantial number of small entities. Therefore, this regulation does not require a regulatory flexibility analysis.

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VI. Possible Changes to the Effective Date of the Rule

Provisions of the Administrative Procedure Act (APA) or section 305 of CERCLA may alter the effective date of this regulation.

Under the APA, 5 U.S.C. 801(a), before a rule can take effect the federal agency promulgating the rule must submit a report to each House of the Congress and to the Comptroller General. This report must contain a copy of the rule, a concise general statement relating to the rule (including whether it is a major rule), a copy of the cost-benefit analysis of the rule (if any), the agency's actions relevant to provisions of the Regulatory Flexibility Act (affecting small businesses) and the Unfunded Mandates Reform Act of 1995 (describing unfunded federal requirements imposed on state and local governments and the private sector), and any other relevant information or requirements under any other Act and any relevant Executive Orders.

Section 5 U.S.C. 801(a)(3) provides for a delay in the effective date of major rules after this report is submitted. Section 5 U.S.C. 801(a)(4) provides that all other rules shall take effect after submission to Congress, as otherwise provided by law.

EPA has submitted a report under the APA for this rule. The rule will take effect, as provided by law, within 30 days of publication of this document, since it is not a major rule. Section 5 U.S.C. 804(2) defines a major rule as any rule that the Administrator of the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) finds has resulted in or is likely to result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. NPL listing is not a major rule because, as explained above, the listing, itself, imposes no monetary costs on any person. It establishes no enforceable duties, does not establish that EPA necessarily will undertake remedial action, nor does it require any action by any 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.

However, under 5 U.S.C. 801(b)(1) a rule shall not take effect, or continue in effect, if Congress enacts (and the President signs) a joint resolution of disapproval, described under section 5 U.S.C. 802.

Another statutory provision that may affect this rule is CERCLA section 305, which provides for a legislative veto of regulations promulgated under CERCLA. Although INS v. Chadha, 462 U.S. 919,103 S. Ct. 2764 (1983) cast the validity of the legislative veto into question, EPA has transmitted a copy of this regulation to the Secretary of the Senate and the Clerk of the House of Representatives.

If action by Congress under either the APA or CERCLA section 305 calls the effective date of this regulation into question, EPA will publish a clarification in the Federal Register.


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: March 25, 1997.

Timothy Fields, Jr.,
Acting 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.

[FR Doc. 97-8086 Filed 3-31-97; 8:45 am]

BILLING CODE 6560-50-P

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