[Federal Register Volume 60, Number 29 (Monday, February 13, 1995)]
[Proposed Rules]
[Pages 8211-8217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3601]



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[[Page 8212]]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[FRL-5154-6]


National Priorities List for Uncontrolled Hazardous Waste Sites, 
Proposed Rule No. 18

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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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.
    The Environmental Protection Agency (``EPA'') proposes to add new 
sites to the NPL. This 18th proposed revision to the NPL includes 7 
sites in the General Superfund Section and 2 in the Federal Facilities 
Section. The NPL is intended primarily to guide EPA 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. The NPL is not intended to define the boundaries of 
a site or to determine the extent of contamination (see Section II, 
subsection, ``Facility Boundaries''). This action does not affect the 
1,241 sites currently listed on the NPL (1,087 in the General Superfund 
Section and 154 in the Federal Facilities Section). However, it does 
increase the number of proposed sites to 55 (47 in the General 
Superfund Section and 8 in the Federal Facilities Section). Final and 
proposed sites now total 1,296.

DATES: Comments must be submitted on or before April 14, 1995.

ADDRESSES: Mail original and three copies of comments (no facsimiles or 
tapes) to Docket Coordinator, Headquarters; U.S. EPA; CERCLA Docket 
Office; (Mail Code 5201G); 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, and for additional Docket 
addresses and further details on their contents, see Section I of the 
``Supplementary Information'' portion of this preamble.

FOR FURTHER INFORMATION CONTACT: Terry Keidan, Hazardous Site 
Evaluation Division, Office of Emergency and Remedial Response (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. Purpose and Implementation of the NPL
III. Contents of This Proposed Rule
IV. Executive Order 12866
V. Regulatory Flexibility Act Analysis

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, 
100 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 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.'' The 
discussion below may refer to the ``releases or threatened releases'' 
that are included on the NPL interchangeably as ``releases,'' 
``facilities,'' or ``sites.''
    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.
    Three mechanisms for determining priorities for possible remedial 
actions are included in the NCP at 40 CFR 300.425(c) (55 FR 8845, March 
8, 1990). 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 is 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, pollutants, and contaminants to pose 
a threat to human health or the environment. 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 [[Page 8213]] listed whether 
or not they score above 28.50, if all of the following conditions are 
met:
     The Agency for Toxic Substances and Disease Registry 
(ATSDR) of the U.S. Public Health Service has issued a health advisory 
that recommends dissociation of individuals from the release.
     EPA determines that the release poses a significant threat 
to public health.
     EPA anticipates that it will be more cost-effective to use 
its remedial authority than to use its removal authority to respond to 
the release.
    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 16, 1994 (59 FR 65206).
    The NPL includes two sections, one of sites being evaluated and 
cleaned up by EPA (the ``General Superfund Section''), and one of sites 
being addressed by other Federal agencies (the ``Federal Facilities 
Section''). Under Executive Order 12580 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 if 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 those facilities 
at which EPA is not the lead agency.

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) (55 FR 8845, March 8, 1990). To date, the Agency has deleted 
68 sites from the General Superfund Section of the NPL, most recently 
Suffolk City Landfill, Suffolk, Virginia (60 FR 4568, January 24, 
1995).
    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 67 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 215 sites are also in the NPL 
CCL, all but two from the General Superfund Section. Thus, as of 
January 25, 1995, the CCL consists of 282 sites.
    Cleanups at sites on the NPL do not reflect the total picture of 
Superfund accomplishments. As of December 1994, EPA had conducted 649 
removal actions at NPL sites, and 2,357 removal actions at non-NPL 
sites. Information on removals is available from the Superfund hotline.
    Pursuant to the NCP at 40 CFR 300.425(c), this document proposes to 
add 9 sites to the NPL. The General Superfund Section currently 
includes 1,087 sites, and the Federal Facilities Section includes 154 
sites, for a total of 1,241 sites on the NPL. An additional 55 sites 
are proposed, 47 in the General Superfund Section and 8 in the Federal 
Facilities Section. Final and proposed sites now total 1,296.

Public Comment Period

    The documents that form the basis for EPA's evaluation and scoring 
of sites in this rule are contained in dockets located both at EPA 
Headquarters and in the appropriate Regional offices. The dockets are 
available for viewing, by appointment only, after the appearance of 
this rule. 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.

Docket Coordinator, Headquarters, U.S. EPA CERCLA Docket Office, (Mail 
Code 5201G), Crystal Gateway #1, 12th Floor, 1235 Jefferson Davis 
Highway, Arlington, VA 22202, 703/603-8917. (Please note this is 
visiting address only. Mail comments to address listed in Addresses 
section above.)
Ellen Culhane, Region 1, U.S. EPA Waste Management Records Center, HES-
CAN 6, J.F. Kennedy Federal Building, Boston, MA 02203-2211, 617/573-
5729
Walter Schoepf, Region 2, U.S. EPA, 26 Federal Plaza, New York, NY 
10278 212/264-0221
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
Steven Wyman, Region 7, U.S. EPA Library, 726 Minnesota Avenue, Kansas 
City, KS 66101, 913/551-7241
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

    The Headquarters docket for this rule contains HRS score sheets for 
each proposed site; a Documentation Record for each site describing the 
information used to compute the score; information for any site 
affected by particular statutory requirements or EPA listing policies; 
and a list of documents referenced in the Documentation Record. Each 
Regional docket for this rule contains all of the information in the 
Headquarters docket for sites in that Region, plus the actual reference 
documents containing the data principally relied upon and cited by EPA 
in calculating or evaluating the HRS scores for sites in that Region. 
These reference documents are available only in the Regional dockets. 
Interested parties may view documents, by appointment only, in the 
Headquarters or the appropriate Regional docket or copies may be 
requested from the Headquarters or appropriate Regional docket. 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.
    EPA considers all comments received during the comment period. 
During the comment period, comments are placed in the Headquarters 
docket and are available to the public on an ``as received'' basis. A 
complete set of comments 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 Regional docket on an ``as 
received'' basis. Comments that include complex or voluminous reports, 
or [[Page 8214]] materials prepared for purposes other than HRS 
scoring, should point out the specific information that EPA should 
consider and how it affects individual HRS factor values. See Northside 
Sanitary Landfill v. Thomas, 849 F.2d 1516 (D.C. Cir. 1988). EPA will 
make final listing decisions after considering the relevant comments 
received during the comment period.
    In past rules, EPA has attempted to respond to late comments, or 
when that was not practicable, to read all late comments and address 
those that brought to the Agency's attention a fundamental error in the 
scoring of a site. (See, most recently, 57 FR 4824 (February 7, 1992)). 
Although EPA intends to pursue the same policy with sites in this rule, 
EPA can guarantee that it will consider only those comments postmarked 
by the close of the formal comment period. EPA has a policy of not 
delaying a final listing decision solely to accommodate consideration 
of late comments.
    In certain instances, interested parties have written to EPA 
concerning sites which 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 still appropriate, resubmit those concerns for 
consideration during the formal comment period. Site-specific 
correspondence received prior to the period of formal proposal and 
comment will not generally be included in the docket.

II. Purpose and Implementation of the NPL

Purpose

    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)) states the primary purpose of the NPL:

    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 identification of a site for the 
NPL is intended 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 remedial action(s), if any, may be appropriate. The NPL also 
serves to notify the public of sites that EPA believes warrant further 
investigation. Finally, listing a site serves as notice to potentially 
responsible parties that the Agency may initiate CERCLA-financed 
remedial action.

Implementation

    After initial discovery of a site at which a release or threatened 
release may exist, EPA begins a series of increasingly complex 
evaluations. The first step, the Preliminary Assessment (``PA''), is a 
low-cost review of existing information to determine if the site poses 
a threat to public health or the environment. If the site presents a 
serious imminent threat, EPA may take immediate removal action. If the 
PA shows that the site presents a threat but not an imminent threat, 
EPA will generally perform a more extensive study called the Site 
Inspection (``SI''). The SI involves collecting additional information 
to better understand the extent of the problem at the site, screen out 
sites that will not qualify for the NPL, and obtain data necessary to 
calculate an HRS score for sites which warrant placement on the NPL and 
further study. EPA may perform removal actions at any time during the 
process. As of December 1994, EPA had completed 36,831 PAs and 17,790 
SIs.
    The NCP at 40 CFR 300.425(b)(1) (55 FR 8845, March 8, 1990) limits 
expenditure of the Trust Fund for remedial actions to sites on the NPL. 
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 300.415(b)(2) (55 FR 8842, March 8, 
1990). EPA's policy is to pursue cleanup of NPL sites using all the 
appropriate response and/or enforcement actions available to the 
Agency, including authorities other than CERCLA. The Agency will decide 
on a site-by-site basis whether to take enforcement or other action 
under CERCLA or other authorities prior to undertaking response action, 
proceed directly with Trust Fund-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 CERCLA-financed response action and/or enforcement 
action through both State and Federal initiatives. EPA will take into 
account which approach is more likely to accomplish cleanup of the site 
most expeditiously while using CERCLA's limited resources as 
efficiently as possible.
    Although the ranking of sites by HRS scores is considered, it does 
not, by itself, determine the sequence in which EPA funds remedial 
response actions, since the information collected to develop HRS scores 
is not sufficient to determine either the extent of contamination or 
the appropriate response for a particular site (40 CFR 300.425(b)(2), 
55 FR 8845, March 8, 1990). Additionally, resource constraints may 
preclude EPA from evaluating all HRS pathways; only those that present 
significant risk or are sufficient to make a site eligible for the NPL 
may be evaluated. Moreover, the sites with the highest scores do not 
necessarily come to the Agency's attention first, so that addressing 
sites strictly on the basis of ranking would in some cases require 
stopping work at sites where it was already underway.
    More detailed studies of a site are undertaken in the Remedial 
Investigation/Feasibility Study (``RI/FS'') that typically follows 
listing. The purpose of the RI/FS is to assess site conditions and 
evaluate alternatives to the extent necessary to select a remedy (40 
CFR 300.430(a)(2) (55 FR 8846, March 8, 1990)). It takes into account 
the amount of hazardous substances, pollutants or contaminants released 
into the environment, the risk to affected populations and environment, 
the cost to remediate contamination at the site, and the response 
actions that have been taken by potentially responsible parties or 
others. Decisions on the type and extent of response action to be taken 
at these sites are made in accordance with 40 CFR 300.415 (55 FR 8842, 
March 8, 1990) and 40 CFR 300.430 (55 FR 8846, March 8, 1990). After 
conducting these additional studies, EPA may conclude that initiating a 
CERCLA remedial action using the Trust Fund at some sites on the NPL is 
not appropriate 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 carefully balance the relative needs for response 
at the numerous sites it has studied. It is also possible that EPA will 
conclude after [[Page 8215]] further analysis that the site does not 
warrant remedial action.

RI/FS at Proposed Sites

    An RI/FS may be performed at sites proposed in the Federal Register 
for placement on the NPL (or even sites that have not been proposed for 
placement on the NPL) pursuant to the Agency's removal authority under 
CERCLA, as outlined in the NCP at 40 CFR 300.415. Although an RI/FS 
generally is conducted at a site after it has been placed on the NPL, 
in a number of circumstances the Agency elects to conduct an RI/FS at a 
site proposed for placement on the NPL in preparation for a possible 
Trust Fund financed remedial action, such as when the Agency believes 
that a delay may create unnecessary risks to public 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

    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)).
    EPA regulations provide that the ``nature and extent of the threat 
presented by a release'' will be determined by an RI/FS as more 
information is developed on site contamination (40 CFR 300.68(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 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 will be impossible to 
describe the boundaries of a release with 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 contests 
liability for releases on discrete parcels of property, it may do so if 
and when the Agency brings an action against that party to recover 
costs or to compel a response action at that property.
    At the same time, however, the RI/FS or the Record of Decision 
(which defines the remedy selected, 40 CFR 300.430(f)) may offer a 
useful indication to the public of the areas of contamination at which 
the Agency is considering taking a response action, based on 
information known at that time. For example, EPA may evaluate (and 
list) a release over a 400-acre area, but the Record of Decision may 
select a remedy over 100 acres only. This information may be useful to 
a landowner seeking to sell the other 300 acres, but it would result in 
no formal change in the fact that a release is included on the NPL. The 
landowner (and the public) also should note in such a case that if 
further study (or the remedial construction itself) reveals that the 
contamination is located on or has spread to other areas, the Agency 
may address those areas as well.
    This view of the NPL as an initial identification of a release that 
is not subject to constant re-evaluation is consistent with the 
Agency's policy of not rescoring NPL sites:

    EPA recognizes that the NPL process cannot be perfect, and it is 
possible that errors exist or that new data will alter previous 
assumptions. Once the initial scoring effort is complete, however, 
the focus of EPA activity must be on investigating sites in detail 
and determining the appropriate response. New data or errors can be 
considered in that process * * * [T]he NPL serves as a guide to EPA 
and does not determine liability or the need for response. (49 FR 
37081 (September 21, 1984).

    See also City of Stoughton, Wisc. v. U.S. EPA, 858 F. 2d 747, 751 
(D.C. Cir. 1988):

    Certainly EPA could have permitted further comment or conducted 
further testing [on proposed NPL sites]. Either course would have 
consumed further assets of the Agency and would have delayed a 
determination of the risk priority associated with the site. Yet * * 
* ``the NPL is simply a rough list of priorities, assembled quickly 
and inexpensively to comply with Congress' mandate for the Agency to 
take action straightaway.'' Eagle-Picher [Industries v. EPA] II, 759 
F. 2d [921] at 932 [(D.C. Cir. 1985)].

    It is the Agency's policy that, in the exercise of its enforcement 
discretion, EPA will not take enforcement actions against an owner of 
residential property to require such owner to undertake response 
actions or pay response costs, unless the residential homeowner's 
activities lead to a release or threat of release of hazardous 
substances, resulting in the taking of a response action at the site 
(OSWER Directive #9834.6, July 3, 1991). This policy includes 
residential property owners whose property is located above a ground 
water plume that is proposed to or on the NPL, where the residential 
property owner did not contribute to the contamination of the site. EPA 
may, however, require access to that property during the course of 
implementing a clean up.

III. Contents of This Proposed Rule

    Table 1 identifies the 7 sites in the General Superfund Section and 
Table 2 identifies the 2 sites in the Federal Facilities Section being 
proposed to the NPL in this rule. Both tables follow this preamble. All 
sites are proposed based on HRS scores of 28.50 or above. The sites in 
Table 1 and Table 2 are listed alphabetically by State, for ease of 
identification, with group number identified to provide an indication 
of relative ranking. To determine group number, sites on the NPL are 
placed in groups of 50; for example, a site in Group 4 of this proposal 
has a score that falls within the range of scores covered by the fourth 
group of 50 sites on the NPL.

Statutory Requirements

    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 
[[Page 8216]] releases. Where other authorities exist, placing sites on 
the NPL for possible remedial action under CERCLA may not be 
appropriate. Therefore, EPA has chosen not to place certain types of 
sites on the NPL even though CERCLA does not exclude such action. 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 statutory requirements of relevance to 
this proposed rule cover Federal facility sites. This policy and 
requirements are explained below and have been explained in greater 
detail previously (56 FR 5598, February 11, 1991).

Releases From Federal Facility Sites

    On March 13, 1989 (54 FR 10520), the Agency announced a policy for 
placing Federal facility sites on the NPL if they meet the eligibility 
criteria (e.g., an HRS score of 28.50 or greater), even if the Federal 
facility also is subject to the corrective action authorities of RCRA 
Subtitle C. In that way, those sites could be cleaned up under CERCLA, 
if appropriate.
    This rule proposes to add three sites to the Federal Facilities 
Section of the NPL.

Economic Impacts

    The costs of cleanup actions that may be taken at any site are not 
directly attributable to placement on the NPL. EPA has conducted a 
preliminary analysis of economic implications of today's proposal to 
the NPL. EPA believes that the kinds of economic effects associated 
with this proposal generally are similar to those effects identified in 
the regulatory impact analysis (RIA) prepared in 1982 for the revisions 
to the NCP pursuant to section 105 of CERCLA and the economic analysis 
prepared when amendments to the NCP were proposed (50 FR 5882, February 
12, 1985). The Agency believes the anticipated economic effects related 
to proposing and adding sites to the NPL can be characterized in terms 
of the conclusions of the earlier RIA and the most recent economic 
analysis.
    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 the sites 
included in this rulemaking.
    The major events that typically 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 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 is controlled by 
Section 104(c) of CERCLA and the NCP. For privately-operated 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:

--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.
--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 cost estimates 
available; the 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.

------------------------------------------------------------------------
                                                          Average total 
                     Cost category                      cost per site\1\
------------------------------------------------------------------------
RI/FS.................................................         1,350,000
Remedial Design.......................................         1,260,000
Remedial Action.......................................     \3\22,500,000
Present Discounted Value O&M\2\.......................        5,630,000 
------------------------------------------------------------------------
\1\1994 U.S. Dollars.                                                   
\2\Assumes cost of O&M over 30 years, $400,000 for the first year and   
  5.8% discount rate.                                                   
\3\Includes State cost-share.                                           
Source: Office of Program Management, Office of Emergency and Remedial  
  Response, U.S. EPA, Washington, DC.                                   

    Costs to the States associated with today's proposed rule are 
incurred when the sites are finalized and arise from the required State 
cost-share of: (1) 10% of remedial actions and 10% of first-year O&M 
costs at privately-owned sites and sites that are publicly-owned but 
not publicly-operated; (2) at least 50% of the remedial planning (RI/FS 
and remedial design), remedial action, and first-year O&M costs at 
publicly-operated sites; and (3) States will assume the cost for O&M 
after EPA's period of participation. Using the budget projections 
presented above, the cost to the States of undertaking Federal remedial 
planning and actions, but excluding O&M costs, would be approximately 
$26 million. State O&M costs cannot be accurately determined because 
EPA, as noted above, will pay O&M costs for up to 10 years for 
restoration of ground water and surface water, and it is not known if 
the site will require this treatment and for how long. Assuming EPA 
involvement for 10 years is needed, State O&M costs would be 
approximately $35 million.
    Placing a site on the proposed or final 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. [[Page 8217]] 
    Economy-wide effects of an amendment to the NPL are aggregations of 
efforts on firms and State and local governments. Although effects 
could be felt by some individual firms and States, the total impact of 
this amendment 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 amendment 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. Listing 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.

IV. Executive Order 12866

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

V. 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 to revise 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 proposed 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 proposed rule 
would not have a significant economic impact on a substantial number of 
small entities. Therefore, this proposed regulation does not require a 
regulatory flexibility analysis.

  National Priorities List Proposed Rule #18 General Superfund Section  
------------------------------------------------------------------------
    State           Site name               City/county        NPL Gr\1\
------------------------------------------------------------------------
FL            Normandy Park          Temple Terrace..........          6
               Apartments.                                              
KS            Ace Services.........  Colby...................        5/6
LA            Gulf State Utilities-  Lake Charles............          5
               North Ryan Street.                                       
LA            Old Citgo Refinery...  Bossier City............        5/6
LA            Southern Shipbuilding  Slidell.................        5/6
ME            West Site/Hows         Plymouth................        5/6
               Corners.                                                 
MI            Bay City               Bay City................       5/6 
               Middlegrounds.                                           
------------------------------------------------------------------------
\1\Sites are placed in groups (Gr) corresponding to groups of 50 on the 
  final NPL.                                                            
Note: Number of Sites Proposed to General Superfund Section: 7.         


  National Priorities List Proposed Rule #18 Federal Facilities Section 
------------------------------------------------------------------------
    State           Site name               City/county        NPL Gr\1\
------------------------------------------------------------------------
KS            Sunflower Army         DeSoto..................        5/6
               Ammunition Plant.                                        
MD            Indian Head Naval      Indian Head.............       5/6 
               Surface Warfare                                          
               Center.                                                  
------------------------------------------------------------------------
\1\Sites are placed in groups (Gr) corresponding to groups of 50 on the 
  final NPL.                                                            
Note: Number of Sites Proposed to Federal Facilities Section: 2.        

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.

    Authority: 42 U.S.C. 9605; 42 U.S.C. 9620; 33 U.S.C. 1321(c)(2); 
E.O. 11735, 3 CFR, 1971-1975 Comp., p. 793; E.O. 12580, 3 CFR, 1987 
Comp., p. 193.

    Dated: February 8, 1995.
Elliott P. Laws,
Assistant Administrator, Office of Solid Waste and Emergency Response.
[FR Doc. 95-3601 Filed 2-10-95; 8:45 am]
BILLING CODE 6560-50-P