[Federal Register Volume 61, Number 247 (Monday, December 23, 1996)]
[Proposed Rules]
[Pages 67678-67682]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32352]



  Federal Register / Vol. 61, No. 247 / Monday, December 23, 1996 / 
Proposed Rules  

[[Page 67678]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[FRL-5668-4]


National Priorities List for Uncontrolled Hazardous Waste Sites, 
Proposed Rule No. 21

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.
    This rule proposes to add 5 new sites to the General Superfund 
Section of the NPL and withdraws the proposal of one site. 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.

DATES: Comments must be submitted (postmarked) on or before February 
21, 1997.

ADDRESSES:

By Mail: 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.
By Federal Express: Send original and three copies of comments (no 
facsimiles or tapes) to Docket Coordinator, Headquarters; U.S. EPA; 
CERCLA Docket Office; 1235 Jefferson Davis Highway; Crystal Gateway #1, 
First Floor; Arlington, VA 22202.
By E-Mail: Comments in ASCII format only may be mailed directly to 
SUPERFUND. [email protected]. E-mailed comments must be followed 
up by an original and three copies sent by mail or Federal Express.
    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, State and Site 
Identification Center, 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. Contents of This Proposed Rule
III. Executive Order 12866
IV. Unfunded Mandates
V. Effect on Small Businesses

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 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 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. 
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).
    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 as 
representing the greatest danger to public health, welfare, or the 
environment among known facilities in the State (see 42 U.S.C. 
9605(a)(8)(B)).

[[Page 67679]]

    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:
     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 
June 17, 1996 (61 FR 30510).
    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 Federal Facilities 
Section sites, and its role at such sites is accordingly less extensive 
than at other sites.

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.'' 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 an 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, as well as 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.
    Further, as noted above, NPL listing does not assign liability to 
any party or to the owner of any specific property. Thus, 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.
    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). This section also provides that EPA shall consult with 
states on proposed deletions and shall consider whether any of the 
following criteria have been met:
    (i) Responsible parties or other persons have implemented all 
appropriate response actions required;
    (ii) All appropriate Superfund-financed response has been 
implemented and no further response action is required; or
    (iii) The remedial investigation has shown the release poses no 
significant threat to public health or the environment, and taking of 
remedial measures is not appropriate.

To date, the Agency has deleted 132 sites from the NPL.
    In November 1995, EPA initiated a new policy to delete portions of 
NPL sites where cleanup is complete (60 FR 55465, November 1, 1995). 
Total site cleanup may take many years, while portions of the site may 
have been cleaned up and available for productive use. As of December 
1996, EPA has partially deleted 4 sites.
    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.


[[Page 67680]]


Inclusion of a site on the CCL has no legal significance.
    In addition to the 125 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 287 sites are also on the NPL CCL. Thus, as of December 
1996, the CCL consists of 412 sites.

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, 
Crystal Gateway #1, 1st Floor, 1235 Jefferson Davis Highway, Arlington, 
VA 22202, 703/603-8917.

    (Please note this is a visiting address only. Mail comments to 
address listed in Addresses section above.)
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.
Bob Heise, Region 8, U.S. EPA, 999 18th Street, Suite 500, Denver, CO 
80202-2466, 303/312-6831.
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.

    Except for the site being proposed based on ATSDR health advisory 
criteria, 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. For the site proposed based on ATSDR health advisory criteria, 
the Headquarters docket contains the ATSDR Health Advisory and EPA's 
documentation supporting the proposed listing.
    The Headquarters docket also contains an ``Additional Information'' 
document which provides a general discussion of the statutory 
requirements affecting NPL listing, the purpose and implementation of 
the NPL, and the economic impacts of NPL listing.
    Each Regional docket for this rule contains all of the information 
in the Headquarters docket for sites in that Region, plus, for the 
sites proposed based on HRS score, 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 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. 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. Contents of This Proposed Rule

    Table 1 identifies the 5 sites in the General Superfund Section 
being proposed to the NPL in this rule. This table follows this 
preamble. Four sites are proposed based on HRS scores of 28.50 or above 
and one site is proposed based on ATSDR health advisory criteria. The 
sites in Table 1 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.

Withdrawal of Broward County, 21st Manor Dump

    EPA is hereby withdrawing the proposal of the Broward County, 21st 
Manor Dump, located in Fort Lauderdale, Florida. This withdrawal was 
proposed on October 2, 1995 (60 FR 51393). EPA received no comments 
regarding the proposal to withdraw this site.

[[Page 67681]]

Proposal, Based on Risk Assessment, To Withdraw an Earlier Proposal To 
List the Annie Creek Mine Tailings Site on the NPL

    Also in this notice, EPA is proposing to withdraw its earlier 
proposal to list the Annie Creek Mine Tailings site on the NPL. The 
proposal was published in the Federal Register on July 29, 1991 (56 FR 
35840). This decision is supported by the results of an engineering 
evaluation/cost assessment (EE/CA) for the site and by the 
protectiveness that is provided by the completed non-time critical 
removal action which took place at this site.
    The Annie Creek site is located in the Black Hills National Forest, 
3.5 miles west of Lead in Lawrence County, South Dakota. The site is in 
mountainous terrain forested with ponderosa pine, spruce, aspen, and 
birch. There is a ski area and other recreational facilities located 
within one mile of the site.
    In September of 1987, the South Dakota Department of Natural 
Resources (DENR) conducted a Preliminary Assessment (PA) of the Annie 
Creek site. The PA concluded that finely ground tailings material, 
deposited from mining and milling activities that took place before 
1917, were being eroded and causing siltation up to one-quarter mile 
downstream along Annie Creek. The PA also noted that a wooden crib damn 
built to contain the tailings was in deteriorating condition. The PA 
detected arsenic, and to a lesser extent, cyanide in surface water 
samples from Annie Creek below the impoundment at values above 
background concentrations.
    In May of 1989, EPA directed that a Site Inspection (SI) be 
conducted. Tailings, surface water, groundwater and stream sediment 
samples were collected and analyzed. Results from the SI detected 
elevated levels of arsenic in Annie Creek and in sediments in Spearfish 
Creek about one mile below its confluence with Annie Creek. Lower 
concentrations of other contaminants were also noted.
    The site, which is within the Annie Creek drainage basin, was 
proposed for placement on the NPL on July 29, 1991. Subsequent to 
proposal for placement on the NPL, EPA conducted the aforementioned 
Engineering Evaluation/Cost Analysis (EE/CA) for the Annie Creek site. 
This EE/CA was completed on September 27, 1993. A full site 
characterization and baseline risk assessment was conducted which 
included full examination of human health and ecological risks 
presented by contamination found at the site. The EE/CA collected all 
the data necessary to reach a final decision about cleanup at Annie 
Creek.
    In October of 1993, EPA sent out a Proposed Plan to obtain the 
response of the community, the state, and other interested Federal 
authorities to EPA's selected response action for the Annie Creek site. 
Response was favorable, and on February 1, 1994, an Action Memorandum 
was signed approving the response action outlined in the Proposed Plan. 
The response action proposed in the EE/CA was determined to be the 
final response action for the site. Removal activities began at the 
site on July 20, 1994. Activities included the regrading and covering 
of contaminated soils with clean soil which was then revegatated. 
Surface water runoff from Annie Creek was diverted through the use of 
drainage controls. Significant institutional controls were also put 
into place as part of this response action. The response action was 
complete on August 2, 1994.
    Based on the EE/CA that was done for the Annie Creek site and 
taking into account the subsequent Removal response action, the Agency 
has determined that the Annie Creek site, as proposed to the NPL, no 
longer poses a significant risk to human health and the environment.
    These actions along with a final rule published elsewhere in 
today's Federal Register, results in an NPL of 1,210 sites, 1,059 in 
the General Superfund Section and 151 in the Federal Facilities 
Section. With this proposal of 5 new sites, there are now 49 sites 
proposed and awaiting final agency action, 42 in the General Superfund 
Section and 7 in the Federal Facilities Section. Final and proposed 
sites now total 1,259.

III. Executive Order 12866

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

IV. Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 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 small governments 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 Reform Act.

V. Effect 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 proposes to revise the NPL, an NPL revision is not 
a typical regulatory change since it does not

[[Page 67682]]

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, if promulgated, will 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 No. 2 General Superfund Section 
------------------------------------------------------------------------
      State            Site name         City/county          NPL Gr    
------------------------------------------------------------------------
GA..............  Brunswick Wood      Brunswick........  3              
                   Preserving.                                          
NJ..............  Grand Street        Hoboken..........  NA             
                   Mercury.                                             
TN..............  Ross Metals Inc...  Rossville........  16             
WA..............  Oeser Co..........  Bellingham.......  1              
WA..............  Palermo Well Field  Tumwater.........  5/6            
                   Ground Water                                         
                   Contamination.                                       
------------------------------------------------------------------------
Number of Sites Proposed to General Superfund Section: 5.               

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.

    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.

    Dated: December 13, 1996.
Elliott P. Laws,
Assistant Administrator, Office of Solid Waste and Emergency Response.
[FR Doc. 96-32352 Filed 12-20-96; 8:45 am]
BILLING CODE 6560-50-P